A.C. No. 4058




Manila EN BANC A.C. No. 4058 March 12, 1998 BENGUET ELECTRIC COOPERATIVE, INC. complainant, vs. ATTY. ERNESTO B. FLORES, respondent. PANGANIBAN, J.: The profession of law exacts the highest standards from its members and brooks no violation of its code of conduct. Accordingly, a lawyer who trifles with judicial processes, engages in forum shopping and blatantly lies in his pleadings must be sanctioned. The Case This is an administrative complaint against Atty. Ernesto Flores filed by Benguet Electric Cooperative, Inc. (BENECO) before this Court on July 5, 1993, seeking his removal or suspension from the bar for forum shopping, which amounted to "grave misconduct, . . . unduly delaying the administration of justice, and violating with impunity his oath of office and applicable laws and jurisprudence."1 After the respondent submitted his Comment, dated August 21, 1993, we referred the case to the Integrated Bar of the Philippines (IBP) on September 27, 1993 for investigation, report and recommendation. On August 15, 1997, we received a resolution from the IBP Board of Governors, finding respondent guilty of violating Canons 10 and 12 of the Code of Professional Responsibility and recommending his suspension from the practice of law for a period of six months, viz: RESOLUTION NO. XII-97-149 Adm. Case NO. 4058 Benguet Electric Cooperative, Inc. vs. Atty. Ernesto B. Flores RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner in the above-entitled case, hereinmande [sic] part of this Resolution/Decision as Annex "A"; and finding the recommendation therein to be fully supported by the evidence on record and the applicable laws and rules, Respondent Atty. Ernesto Flores is hereby SUSPENDED from the practice of law for six (6) months for violating the provision of Canon[s] 10 and 12 of the Code of Professional Responsibility.2 The Facts Because the parties3 agreed to dispense with the presentation of testimonial evidence, the case was submitted for resolution on the basis of their documentary evidence. As found by Investigating Commissioner Plaridel C. Jose, the facts are as follows: . . . On February 25, 1993, Labor Arbiter Irenarco Rimando of the National Labor Relations Commission, Regional Arbitration Branch, Cordillera Administrative Region, Baguio City, issued a Writ of Execution (. . .) in NLRC Case No. RAB-1-0313-84 to enforce the decision rendered by the Supreme Court on May 18, 1992 in G.R. No. 89070 (Benguet Electric Cooperative, Inc. vs. NLRC, 209 SCRA 55). The Writ of Execution was issued on motion of Benguet Electric Cooperative (BENECO for short) to collect the amount of P344,000.00 which it paid to Peter Cosalan during the pendency of the case before the Supreme Court, on the basis of its decision ordering the respondent board members "to reimburse petitioner BENECO any amount that it may be compelled to pay to respondent Cosalan by virtue of the decision of Labor Arbiter Amado T. Adquilen." After issuance of the writ of execution, the respondent, as new counsel for the losing litigant-members of the BENECO Board of Directors, filed a Motion for Clarification with the Third Division of the Supreme Court in G.R. No. 89070, the minute resolution to wit: "to note without action the aforesaid motion". Thereafter, the respondent instituted a suit docketed as Civil Case NO. 2738-R (. . .) with the Regional Trial Court, Branch 7, Baguio City, seeking to enjoin the defendants Clerk of Court, et al. from levying on their properties in satisfaction of the said writ of execution. That case, however, was dismissed by the Presiding Judge Clarence Villanueva in his Order dated March 18, 1993 (. . .). Accordingly, the Office of the Clerk of Court, MTC, Baguio City, through Sheriff III Wilfredo Mendez, proceeded to levy on the properties of the losing board members of BENECO. Thus, a sale at public auction was set on June 1, 1993, at 10:00 o'clock in the morning in front of the Baguio City Hall, per Sheriff's Notice of Sale dated May 4, 1993 (. . .), of the properties of Abundio Awal and Nicasio Aliping[,] two of the losing members of the Board of Directors of BENECO in the aforementioned case. Respondent claims in his comment (. . .) that Branch 7, motu proprio, dismissed Civil Case No. 2738-R for lack of jurisdiction on March 18, 1993, which dismissal was [sic] became final due to respondent's failure to perfect an appeal therefrom which claim according to the complainant, constitute[s] deliberate misrepresentation, if not falsehood, because the respondent indeed interposed an appeal such that on May 11, 1993, the RTC 7 of Baguio City transmitted the entire record of Civil Case No. 2738-8 to the Court of Appeals per certified machine copy of the letter transmittal of same date (. . .). While respondent "never essentially intended to assail the issuance by the NLRC of the Writ of Execution . . . nor sought to undo it" (. . .) the complaint in Civil Case No. 2738-R which he filed prays for the immediate issuance of a temporary restraining order and/or preliminary writ of injunction for defendants Clerk of Court and Ex-Officio City Sheriff to cease and desist from enforcing the execution and levy of the writ of execution issued by the NLRC-CAR, pending resolution of the main action in said court (. . .) which complainant likewise claims as an unprocedural maneuver to frustrate the execution of the decision of the Supreme Court in G.R. No. 89070 in complete disregard of settled jurisprudence that regular courts have no jurisdiction to hear and decide questions which arise and are incidental to the enforcement of decisions, orders and awards rendered in labor cases citing the case of Cangco vs. CA, 199 SCRA 677, a display of gross ignorance of the law. On May 26, 1993, respondent again filed for Abundio Awal and Nicasio Aliping with the Regional Trial Court, Branch 9, La Trinidad, Benguet, separate complaints for Judicial Declaration of Family Home Constituted, Ope Lege, and thus Exempt from Levy and Execution the subject properties with Damages, etc. docketed as Civil Cases Nos. 93-F-0414 (. . .) and 93-F-0415 (. . .), which are essentially similar actions to enjoin the enforcement of the judgment rendered in NLRC Case No. RAB-1-0313-84. He also filed an urgent Motion Ex-parte (. . .) praying for temporary restraining order in these two (2) cases. The complainant further alleges that respondent's claim for damages against the defendant Sheriff is another improper and unprocedural maneuver which is likewise a violation of respondent's oath not to sue on groundless suit since the said Sheriff was merely enforcing a writ of execution as part of his job. Recommendation of the IBP As noted earlier, Investigating Commissioner Plaridel C. Jose recommended, and the IBP Board of Governors concurred, that respondent be suspended from the bar for six months for: 1. Falsehood, for stating in his comment before this Court that the order of the RTC dismissing the complaint in Civil Case No. 2738-R was not appealed on time 2. Failure to comply with Supreme Court Circular No. 28-91 on forum shopping Commissioner Jose ratiocinated: A cursory glance of (sic) . . . the complaint filed by the respondent in Civil Case No. 2738-R before the RTC of Baguio City, which complaint was signed and verified under oath by the respondent, reveals that it lacks the certification required by Supreme Court Circular No. 28-91 which took effect on January 1, 1992 to the effect that "to the best of his knowledge, no such action or proceeding is pending in the Supreme Court, Court of Appeals or different divisions thereof or any tribunal or agency. If there is any other action pending, he must state the status of the same. If he should learn that a similar action or proceeding has been filed or pending before the Supreme Court, Court of Appeals or different divisions thereof or any tribunal or agency[,] he should notify the court, tribunal or agency within five (5) days from such notice." Among the other penalties, the said circular further provides that the lawyer may also be subjected to disciplinary proceedings for non-compliance thereof. In sum, it is clear that the respondent violated the provisions of Canon[s] 10 and 12 of the Code of Professional Responsibility under which the lawyer owes candor, fairness and good faith to the court and exert[s] every effort and consider[s] it his duty to assist in the speedy and efficient administration of justice.4 This Court's Ruling We adopt and affirm the recommendation of the IBP suspending the respondent from the bar, but we increase the period from six (6) months to one (1) year and six (6) months. Forum Shopping Circular No. 28-91, 5 dated September 4, 1991 which took effect on January 1, 1992, requires a certificate of non-forum shopping to be attached to petitions filed before this Court and the Court of Appeals. This circular was revised on February 8, 1994. The IBP found that the respondent had violated it, because the complaint he filed before the RTC of Baguio City "lack[ed] the certification required by Supreme Court Circular No. 28-91."6 We distinguish. Respondent's failure to attach the said certificate cannot be deemed a violation of the aforementioned circular, because the said requirement applied only to petitions filed with this Court and the Court of Appeals.7 Likewise inapplicable is Administrative Circular No. 04-94 dated February 8, 1994 which extended the requirement of a certificate of non-forum shopping to all initiatory pleadings filed in all courts and quasi-judicial agencies other than this Court and the Court of Appeals. Circular No. 04-94 became effective only on April 1, 1994, but the assailed complaint for injunction was filed on March 18, 1993, and the petition for the constitution of a family home was instituted on May 26, 1993. Be that as it may, respondent is still guilty of forum shopping. In Chemphil Export and Import Corporation vs. Court of Appeals,8 this Court declared that "(t)he rule against forum shopping has long been established and subsequent circulars9 of this Court merely formalized the prohibition and provided the appropriate penalties against transgressors." The prohibition is found in Section 1(e) of Rule 16 and Section 4 of Rule 2 of the 1964 Rules of Court, which provide: Sec. 1. Grounds. — Within the time for pleading, a motion to dismiss the action may be made on any of the following grounds: x x x x x x x x x (e) That there is another action pending between the same parties for the same cause; xxx xxx xxx10 Sec. 4. Effect of splitting a single cause of action. — If two or more complaints are brought for different parts of a single cause of action, the filing of the first may be pleaded in abatement of the other or others, in accordance with section 1(e) of Rule 16, and a judgment upon the merits in any one is available as a bar in the others. 11 The prohibition is also contained in Circular No. 28-91. This circular did not only require that a certification of non-forum shopping be attached to the petitions filed before this Court or the Court of Appeals; it also decreed that forum shopping constituted direct contempt of court and could subject the offending lawyer to disciplinary action. The third paragraph thereof reads: 3. Penalties. (a) Any violation of this Circular shall be a cause for the summary dismissal of the multiple petition or complaint. (b) Any willful and deliberate forum shopping by any party and his lawyer wit the filing of multiple petitions and complaints to ensure favorable action shall constitute direct contempt of court. (c) The submission of false certification under Par. 2 of the Circular shall likewise constitute contempt of Court, without prejudice to the filing of criminal action against the guilty party. The lawyer may also be subjected to disciplinary proceedings. (Emphasis supplied.) The foregoing were substantially reproduced in Revised Circular No. 28-9112 and Administrative Circular No. 04-94.13 In a long line of cases, this Court has held that forum shopping exists when, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another,14 or when he institutes two or more actions or proceedings grounded on the same cause, on the gamble that one or the other court would make a favorable disposition.15 The most important factor in determining the existence of forum shopping is the "vexation caused the courts and parties-litigants by a party who asks different courts to rule on the same or related causes or grant the same or substantially the same reliefs."16 After this Court rendered its Decision17 in Benguet Electric Cooperative, Inc. vs. National Labor Relations Commission, et al.18 and upon motion of BENECO, Labor Arbiter Irenarco R. Rimando issued a writ of execution 19 ordering the clerk of court and ex officio city sheriff of the Municipal Trial Court of Baguio City to levy on and sell at public auction personal and real property of the members of the Board of Directors of BENECO. On March 18, 1993, Respondent Flores, acting as counsel for BENECO Board Members Victor Laoyan, Nicasio Aliping, Lorenzo Pilando and Abundio Awal, filed with the RTC an injunction suit praying for the issuance of a temporary restraining order (TRO) "to preserve the status quo as now obtaining between the parties," as well as a writ of preliminary preventive injunction ordering the clerk of court and the ex officio city sheriff of the MTC of Baguio to "cease and desist from enforcing by execution and levy the writ of execution from the NLRC-CAR, pending resolution of the main action raised in court."20 When this injunction case was dismissed, Respondent Flores filed with another branch of the RTC two identical but separate actions both entitled "Judicial Declaration of Family Home Constituted, ope lege, Exempt from Levy and Execution; with Damages, etc.," docketed as Civil Case Nos. 93-F-0414 and 93-F-0415.21 The said complaints were supplemented by an "Urgent Motion Ex Parte"22 which prayed for an order to temporarily restrain Sheriff Wilfredo V. Mendez from proceeding with the auction sale of plaintiffs' property "to avoid rendering ineffectual and functus [oficio] any judgment of the court later in this [sic] cases, until further determined by the court." Civil Case Nos. 93-F-0414 and 93-F-0415 are groundless suits. Modequillo vs. Breva,23 reiterated in Manacop vs. Court of Appeals,24 shows the frivolity of these proceedings: Under the Family Code, a family home is deemed constituted on a house and lot from the time it is occupied as a family residence. There is no need to constitute the same judicially or extrajudicially as required in the Civil Code. If the family actually resides in the premises, it is, therefore, a family home as contemplated by law. Thus, the creditors should take the necessary precautions to protect their interest before extending credit to the spouses or head of the family who owns the home. x x x x x x x x x The exemption provided as aforestated is effective from the time of the constitution of the family home as such, and lasts so long as any of its beneficiaries actually resides therein. Adhering to the Court's declaration in said cases, the subject properties are deemed constituted as family homes by operation of law under Article 153 of the Family Code. The suits for the constitution of a family home were not only frivolous and unnecessary; they were clearly asking for reliefs identical to the prayer previously dismissed by another branch of the RTC, i.e, to forestall the execution of a final judgment of the labor arbiter. That they were filed ostensibly for the judicial declaration of a family home was a mere smoke screen; in essence, their real objective was to restrain or delay the enforcement of the writ of execution. In his deliberate attempt to obtain the same relief in two different courts, Respondent Flores was obviously shopping for a "friendly" forum which would capitulate to his improvident plea for an injunction and was thereby trifling with the judicial process.25 We remind the respondent that, under the Code of Professional Responsibility,26 he had a duty to assist in the speedy and efficient administration of justice.27 The Code also enjoins him from unduly delaying a case by impeding the execution of a judgment or by misusing court processes.28 In consonance with Millare vs. Montero29 and Garcia vs. Francisco,30 respondent should be suspended from the practice of law for one year. In Millare, the respondent filed with different courts a total of six appeals, complaints and petitions which frustrated and delayed the execution of a final judgment. Holding that "respondent 'made a mockery of the judicial processes' and disregarded canons of professional ethics in intentionally frustrating the rights of a litigant in whose favor a judgment in the case was rendered [and], thus, 'abused procedural rules to defeat the ends of substantial justice,'"31 this Court suspended the respondent from the practice of law for one year. In Garcia, the respondent was also suspended for one year from the practice of law, for violating the proscription against forum shopping. This Court held that "he deserve[d] to be sanctioned, not only as a punishment for his misconduct but also as a warning to other lawyers who may be influenced by his example."32 Falsehood The investigating commissioner also held respondent liable for committing a falsehood because, in this administrative case, he stated in his comment that he had not "perfected an appeal on the dismissal" of his petition for injunction. In his said comment, the respondent stated: Branch 7 (of the RTC) motu proprio, dismissed the case for lack of jurisdiction on March 18, 1993. Not having perfected an appeal on the dismissal, the order of dismissal became final under the Rules 15 days after its receipt by respondent on record, or before April 6, 1993. So that today this case is no longer pending. x x x x x x x x x It should be noted that when Civil Case Nos. 93-F-0414 and 93-F-0415 for family homes and damages were filed in the court below on May 26, 1993, Civil Case NO. 2378-R which seems to give basis to the present Complaint was deemed terminated, there being no appeal formally taken and perfected in accordance with the Rules. x x x x x x x x x And that precisely was the primal reason why respondent decided not to appeal any further anymore [sic] the order of dismissal for lack of jurisdiction of the court below in Civil Case No. 2738, and let it be deemed final by the Rules and jurisprudence.33 (Emphasis supplied.) The indelible fact, however, is that respondent did file an appeal which was perfected later on. The original records of the injunction suit had been transmitted to the appellate court.34 Moreover, the Court of Appeals issued a resolution dismissing the appeal.35 Thus, in denying that he had appealed the decision of the RTC, respondent was making a false statement. Respondent argues that the withdrawal of his appeal means that no appeal was made under Section 2 of Rule 50 of the Rules of Court. The pertinent provisions of Rule 5036 read: Sec. 2. Effect of dismissal. — Fifteen (15) days after the dismissal of an appeal, the clerk shall return to the court below the record on appeal with a certificate under the seal of the court showing that the appeal has been dismissed. Upon the receipt of such certificate in the lower court the case shall stand there as though no appeal had ever been taken, and the judgment of the said court may be enforced with the additional costs allowed by the appellate court upon dismissing the appeal. x x x x x x x x x Sec. 4. Withdrawal of appeal. — An appeal may be withdrawn as of right at any time before the filing of appellee's brief. . . .ℒαwρhi৷ The withdrawal of an appeal shall have the same effect as that of a dismissal in accordance with section 2 of this rule. Respondent's explanation misses the point. True, he withdrew his appeal. But it is likewise true that he had actually filed an appeal, and that this was perfected. False then is his statement that no appeal was perfected in the injunction suit. Worse, he made the statement before this Court in order to exculpate himself, though in vain, from the charge of forum shopping. A lawyer must be a disciple of truth. Under the Code of Professional Responsibility, he owes candor, fairness and good faith to the courts.37 He shall neither do any falsehood, nor consent to the doing of any. He also has a duty not to mislead or allow the courts to be misled by any artifice.38 For this offense, we suspend the respondent from the practice of law for another year. True, in Ordonio vs. Eduarte,39 Porac Trucking, Inc., vs. Court of Appeals40 and Erectors, Inc. vs. NLRC,41 we imposed a suspension of only six months for a similar malfeasance. But in Flores' case, his falsehood is aggravated by its brazenness, for it was committed in an attempt, vain as it was, to cover up his forum shopping. Before we close, we note that this simple case was referred to the IBP on September 27, 1993. It was deemed submitted for resolution per the investigating commissioner's order dated May 10, 1995. However, the investigating commissioner submitted his report only on May 5, 1997. Moreover, the IBP transmitted its recommendation to the Court only through a letter dated July 31, 1997, which was received by the Office of the Bar Confidant on August 15, 1997. Why it took the IBP almost four years to finish its investigation of the case and over two years from the date the parties filed their last pleadings to resolve it escapes us. After all, the case did not require any trial-type investigation, and the parties submitted only documentary evidence to prove or rebut their respective cases. Thus, we find it opportune to urge the IBP to hasten the disposition of administrative cases and to remind it that this Court gives it only ninety days to finish its investigation, report and recommendation. Should it require more time, it should file with the Court a request for extension, giving the reason for such request. WHEREFORE, for trifling with judicial processes by resorting to forum shopping, Respondent Ernesto B. Flores is hereby SUSPENDED from the practice of law for a period of ONE (1) YEAR and, for violating his oath and the Canon of Professional Responsibility to do no falsehood, he is SUSPENDED for another period of ONE (1) YEAR, resulting in a total period of TWO (2) YEARS, effective upon finality of this Decision. He is WARNED that a repetition of a similar misconduct will be dealt with more severely. Let a copy of this Decision be included in his files which are with the Office of the Bar Confidant, and circularized to all courts and to the Integrated Bar of the Philippines. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Martinez, Quisumbing and Purisima, JJ., concur. Footnotes 1 Complaint, p. 4; records, Vol. 1, p. 4. 2 See Notice of Resolution; records, Vol. 1. 3 BENECO was represented by Atty. Emiliano L. Gayo while Respondent Flores appeared as counsel for himself. Before the IBP commissioner, Flores filed a one-page Memorandum dated February 15, 1995, while Gayo submitted a six-page Memorandum dated February 13, 1995. The case was deemed submitted for resolution by the IBP on May 10, 1995. (Records, p. 63.) 4 Report of IBP Commissioner Plaridel C. Jose, pp. 4-5. 5 Re: "Additional Requisites for Petitions filed with the Supreme Court and the Court of Appeals to Prevent Forum Shopping of Multiple Filing of Petitions and Complaints." 6 Report of IBP Commissioner Plaridel C. Jose, p. 4. 7 Gabionza vs. Court of Appeals, 234 SCRA 192, 196, July 18, 1994. See also Cadalin vs. POEA's Administrator, 238 SCRA 721, 770, December 5, 1994. 8 251 SCRA 257, 291, December 12, 1995; per Kapunan, J. 9 Revised Circular No. 28-91 and Administrative Circular No. 04-94. 10 Rule 16 of the Rules of Court. 11 Rule 2 of the Rules of Court. 12 Paragraph 2. 13 Paragraph 2. 14 First Philippine International Bank vs. Court of Appeals, 252 SCRA 259, 283, January 24, 1996 and Washington Distillers, Inc. vs. Court of Appeals, 260 SCRA 821, 835, August 22, 1996. See also Bugnay Construction and Development Corporation vs. Laron, 176 SCRA 240, 252, August 10, 1989. 15 Chemphil Export & Import Corporation vs. Court of Appeals, 251 SCRA 257, 291, December 12, 1995. 16 Borromeo vs. Intermediate Appellate Court, 255 SCRA 75, 84 March 15, 1996. 17 The dispositive portion reads: WHEREFORE, the Petition for Certiorari is GIVEN DUE COURSE, the comment filed by respondent Board members is TREATED as their answer, and the decision of the National Labor Relations Commission dated 21 November 1988 in NLRC Case No. RAB-1-0313-84 is hereby SET ASIDE and the decision dated 5 April 1988 of Labor Arbiter Amado T. Adquilen hereby REINSTATED in toto. In addition, respondent Board members are hereby ORDERED to reimburse petitioner Beneco any amounts that it may be compelled to pay to respondent Cosalan by virtue of the decision of Labor Arbiter Amado T. Adquilen." (209 SCRA 55, 66, May 18, 1992.) 18 Composed of (1) Victor Laoyan, (2) Nicasio Aliping, (3) Abundio Awal, (4) Antonio Sudang Pan, and (5) Lorenzo Pilando. 19 Writ of Execution, pp. 1-7; records, Vol. 1, pp. 8-14. 20 Complaint for Injunction, p. 8; records, Vol. 1, p. 22. 21 Records, Vol. 1, pp. 26-37. Emphasis found in the original. 22 Records, Vol. 1, pp. 44-45. 23 185 SCRA 765, 770-771, May 31, 1990; per Gancayco, J. 24 215 SCRA 773, 781-782, November 13, 1992. 25 See First Philippine International Bank vs. Court of Appeals, 252 SCRA 259, 283, January 24, 1996; Millare vs. Montero, 246 SCRA 1, 8, July 13, 1995; and Limpin, Jr. vs. Intermediate Appellate Court, 161 SCRA 83, 98, May 5, 1988. 26 Promulgated by the Supreme Court on June 21, 1988. 27 Canon 12. 28 Rule 12.04 of Canon 12, Code of Professional Responsibility. 29 246 SCRA 1, July 13, 1995. 30 220 SCRA 512, March 30, 1993. 31 246 SCRA 1, 9, July 13, 1995 per Quiason, J.. 32 220 SCRA 512, 516, March 30, 1993, per curiam. 33 Comment, pp. 2, 7 and 9; records, Vol. 1, pp. 53, 58 and 60. 34 The transmittal letter reads: In connection with the appeal interposed by the plaintiffs in the above entitled case, we are transmitting herewith the original records of the same consisting of the following: Page in Record 1. Motion for Immediate Raffle 1-2 2. Complaint (including Annexes) 3-48 3. Order dated May 18, 1993 48-49 4. Notice of Appeal 50 5. Approval of Appeal 52 x x x x x x x x x (Records, Vol. 2, p. 24.) 35 It reads: Considering plaintiffs-appellants' "Withdrawal of Appeal" dated August 19, 1993, the same is granted, and the appeal is hereby DISMISSED. x x x x x x x x x (Records, Vol. 2, p. 30.) 36 This was prior to the effectivity of the 1997 amendments to the Rules of Court. 37 Canon 10 of the Code of Professional Responsibility. 38 Rule 10.01 of Canon 10, Code of Professional Responsibility. 39 207 SCRA 229, March 16, 1992. 40 202 SCRA 674, October 15, 1991. 41 166 SCRA 728, October 28, 1988. The Lawphil Project - Arellano Law Foundation