A.C. No. 5809




THIRD DIVISION A.C. No. 5809 February 23, 2004 SERVILLANO BATAC, JR. and ANTONIO BONOAN, complainants, vs. ATTY. PONCIANO V. CRUZ, JR., respondent. D E C I S I O N CARPIO-MORALES, J.: In a verified complaint-affidavit¹ dated April 15, 1999, docketed as CBD Case No. 99-269 before the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP-CBD), Servillano Batac, Jr. and Atty. Antonio Bonoan (complainants) pray that appropriate disciplinary sanction be meted against Atty. Ponciano Cruz, Jr. (respondent). The facts which spawned the filing of the present case are as follows: Complainants are among the petitioners, while respondent is one of the respondents, in a case pending before the Securities and Exchange Commission (SEC), "Servillano Batac, Jr., Antonio Bonoan, John Chang, Antonio Chua and Virginia Peñalosa v. Norma Javier, Alfred Xerex-Burgos, Ponciano Cruz, Jr., Carmencita Esteban, Lucito Sioson, Jose Racela, Rex Goquinco and Quezon City Sports Club," docketed as SEC Case No. 07-97-5706 (the SEC case). As the petitioners in the SEC case were to present respondent as an adverse party witness, they, on several occasions, requested the issuance of subpoena ad testificandum/duces tecum upon him. Thus, acting on complainants’ request, the SEC Hearing Panel (hearing panel) issued on February 4, 1998 a subpoena ad testificandum² to respondent for the February 19, 1998 scheduled hearing. By letter³ of February 17, 1998, however, respondent informed the hearing panel that he could not attend the February 19, 1998 hearing, alleging that he was scheduled to appear in the "preliminary investigation" of Civil Case No. 95-CV-1037, "Al Sarawat Trading Corporation v. Marsson Industrial Corporation " (Al Sarawat case), before Branch 62 of the Regional Trial Court (RTC), La Trinidad, Benguet on the same date. On March 19, 1998, the hearing panel again issued a subpoena ad testificandum⁴ to respondent for the hearing scheduled more than a month later or on April 22, 1998 at 2:00 p.m. and that on April 29, 1998 at 10:00 a.m., which subpoena was received by respondent on March 23, 1998. By letter⁵ of April 21, 1998, however, respondent informed the hearing panel that he could not attend the said scheduled dates of hearing as he was to appear again in the Al Sarawat case on April 23 and 24, 1998, thus necessitating his departure from Manila for Benguet on April 22, 1998, adding that he was also scheduled to appear in "Miladay Jewels, Inc. v. Remedies Espino" pending before Branch 142 of the RTC Makati on April 29, 1998 at 8:30 a.m. On June 4, 1998, the hearing panel again issued a subpoena duces tecum/ad testificandum⁶ to respondent for the hearings scheduled on June 10 and 17, 1998, both at 10:00 a.m., which subpoena was received at respondent’s office on June 8, 1998.^7] However, by letter⁸ of June 8, 1998, respondent informed the hearing panel that he did not possess the two documents subject of the duces tecum and that he could not attend said scheduled hearing dates as he was scheduled to attend the Rotary International Convention in Indianapolis, Indiana, USA to be held on June 13 to 17, 1998. On June 11, 1998, the hearing panel once again issued a subpoena ad testificandum⁹ to respondent for the hearings of July 21 and 28, 1998, which subpoena was received at respondent’s office on June 16, 1998. Respondent, however, failed to attend the July 21, 1998 hearing, prompting the hearing panel to, on even date, issue an Order¹⁰ directing him to show cause why he should not be cited for indirect contempt and for him to appear and testify on July 28, 1998 at 10:00 a.m. By letter of July 24, 1998,¹¹ respondent informed the hearing panel that he had just been appointed by President Estrada as "the new Commissioner of the National Telecommunications Commission" and in his capacity as such, he was on July 21, 1998 in conference with certain officials and representatives of the Philippine Electronics and Telecoms Federation and Institute of Electronics Engineers of the Philippines; and that he was scheduled to meet with Messrs. Raul Concepcion and Bobby Estenblar of Concepcion Telecoms and Informatics Philippines, Inc., respectively, in the morning of July 28, 1998, thus rendering him unable to testify before the hearing panel on said date. By Order¹² of July 28, 1998, the hearing panel directed respondent to file a manifestation stating the dates of his availability to appear as witness. Pursuant to said order, respondent, in a Manifestation¹³ dated August 4, 1998, informed that he was available on October 28, 29 and 30, 1998 all at 10:00 a.m. Conformably to said manifestation, the hearing panel, by Order¹⁴ of September 29, 1998, set the hearing of the SEC case on October 28 and 29 1998 at 10:00 a.m. During the October 28, 1998 hearing, however, respondent failed to attend. His absence was explained by his counsel, Atty. Eric Paul I. Fetalino, in this wise: ATTY. FETALINO: Your Honor, Commissioner Cruz called me yesterday, [Oct. 27, 1998]. I think supervening events occurred. He was instructed by President Estrada to proceed to the Unites States to attend the International Telecommunication Potentiary (sic) Meeting in Minneapolis as the Deputy Head of the Delegation. He was supposed to have informed me earlier about this but, I think, he was caught up with his schedule because of the hearings going on with the telemetering. ATTY. PACIS: When is he supposed to be back? ATTY. FETALINO: I think, he is supposed to leave today [Oct. 27, 1998]. I, therefore, have to apologize to Atty. Pacis and move for the cancellation of the hearing today. We will provide the travel orders issued by President Estrada. H.O. ABUGAN When is he coming back? ATTY. FETALINO: Because of the short notice, we were not able to discuss the time when he is coming back. I don’t know. Maybe, I think, two weeks, one week. I am not so sure. We will make the proper manifestation when he arrives. H.O. ABUGAN: So, with that manifestation, the scheduled hearing also tomorrow because this is set for today and tomorrow... ATTY. FETALINO: Yes, definitely, he won’t be available tomorrow [Oct. 29, 1998] and on Friday [Oct. 30,1998]. x x x ATTY. PACIS: May I suggest Your Honors, that we follow the same procedure that by Commissioner Cruz return (sic) for them to manifest that he has returned and when he would be available again. This will be the last time. H.O. ABUGAN: I think, we have to adopt the same arrangement that the counsel of Atty. Cruz will file a manifestation with respect to the availability of Atty. Cruz for the hearing. ATTY. FETALINO: We will do that, Your Honor. H.O. ABUGAN: So may I suggest counsel to immediately submit your manifestation once Commissioner Cruz will be back from the U.S.? ATTY. FETALINO: Upon the return of Commissioner Cruz. ATTY. PACIS: May I also suggest, Your Honor, for purposes of the record that counsel validate this manifestation today in writing to give us better proof that, in fact, Atty. Cruz is leaving for the States? ATTY. FETALINO: As a matter of fact, we will provide the travel orders probably together with the manifestation. I think, that would be more sufficient. ATTY. PACIS: Yes, also for the satisfaction of the petitioners. ATTY. FETALINO: Very well. We have no problem. x x x¹⁵ (Emphasis and underscoring supplied) In a "Manifestation (with Urgent Ex-Parte Motion for Relief)" dated December 4, 1998, petitioners in the SEC case informed the hearing panel that nothing had been heard from respondent since the October 28, 1998 hearing. As will be stated below, respondent did not leave for abroad on October 27, 1998. Acting on the December 4, 1998 Manifestation of the petitioners in the SEC case, the hearing panel issued on December 9, 1998 an order¹⁶ directing respondent and/or his counsel to submit "documentary substantiation" of his alleged travel abroad within seven days from receipt thereof, copy furnished the petitioners’ counsel. No travel documents were ever filed by respondent. As priorly stated, respondent’s United States trip subject of Atty. Fetalino’s manifestation before the hearing panel on October 28, 1998 did not push. For by letter¹⁷ of October 6, 1998, then Senior Deputy Executive Secretary Ramon B. Cardenas informed the then Secretary of the Department of Transportation and Communications (DOTC) Vicente C. Rivera, Jr. that the request for respondent as NTC Commissioner to attend the Plenipotentiary Conference could not be given due course per instructions of the President for austerity reasons and in light of the considered opinion that his presence "w[ould] not provide substantial contribution to the Philippines’ position and bid for re-election" in the International Telecommunications Union Council. On February 25, 1999, the hearing panel again issued a subpoena ad testificandum ¹⁸ to respondent for the March 4, 1999 hearing at 2:00 p.m., which subpoena was received at respondent’s law office on February 25, 1999. However, by letter¹⁹ of March 3, 1999, respondent informed the hearing panel that he would not be in Manila on the March 4, 1999 scheduled hearing as he was "scheduled to attend the hearing" of LRC Case No. 633, In re Application for Registration, Associacion Benevola de Cebu (Benevola case), pending before Branch 6 of RTC Cebu City. Based on a Certification²⁰ dated March 5, 1999 issued by Atty. Myrna Valderrama-Limbaga, Branch Clerk of Court of RTC, Branch 6, Cebu City, the Benevola "principal case" was not scheduled for hearing on March 4, 1998, and that what was scheduled for hearing on said date was an incident thereof in which respondent was neither a counsel of record nor had he entered his appearance in representation of any of the parties. By motion²¹ dated April 12, 1999, complainants charged before the SEC respondent and his counsel Atty. Fetalino with several counts of indirect contempt to which they filed a comment/opposition²² on May 20, 1999. In a later move, complainants filed on April 15, 1999 their Affidavit - basis of the institution of the complaint at bar against respondent. In respondent’s Counter-Affidavit dated October 13, 1999²³ to which he annexed his opposition to the motion to cite him in contempt which had, at the time, been unresolved, he contended that his failure to attend the hearings on February 4, March 18, June 4, 11 and 28, 1998 was due to valid grounds duly communicated to and noted and "accepted" by the hearing panel.²⁴ As to his failure to attend the October 28, 1998 hearing, respondent reiterated his claim that he was made to believe by his superiors that he was indeed required to attend the International Telecommunications Plenipotentiary Meeting in Minneapolis, adding that he was initially assigned Deputy Head of the delegation. He further claimed that the letter of Secretary Cardenas to Secretary Rivera did not provide the entire "picture" as he requested for a reconsideration of Secretary Cardenas’ decision. Blaming the ugly side of politics, respondent claimed that his detractors within the government succeeded in blocking his travel order. He, however, maintained that on October 28, 1998, he was of the bona fide belief that Secretary Cardenas’ earlier decision had already been reconsidered and that there were already instructions of the President for him to proceed to Minneapolis, hence, he could not be faulted or punished for his failure to attend the hearing scheduled on that date.²⁵ As to the March 4, 1999 hearing, respondent stood by his manifestation made through his counsel that he was supposed to be in Cebu City to attend to the Benevola case. He claimed that the Certification of the Branch Clerk of Court hardly revealed the whole "picture" as he was indeed scheduled to proceed to the RTC Cebu as early as March 3, 1999 for a very urgent task of filing with said court a Temporary Restraining Order (TRO) which was expected to be issued by the Court of Appeals, in connection with the petition for certiorari he, in collaboration with another counsel, filed to assail the refusal of the trial judge to stay the execution of the judgment in the Benevola case; but as the Court of Appeals issued the TRO only on March 5, 1999, he left for Cebu only on March 5, 1999.²⁶ Respondent submitted a Certification of the Clerk of Court of Branch 6 of the RTC Cebu stating that he personally appeared before her office on March 5, 1999 at 3:00 p.m. "to file a manifestation^27] with TRO" in the Benevola case. Clearly, respondent claimed, he was merely a victim of an unforeseen event, i.e., the delay in the issuance of the restraining order. Respondent further asserted that it was evident that if he had any intention to ignore the orders and subpoenas of the hearing panel, he would not have bothered to submit his written explanations and manifestations.²⁸ On February 12, 2001, the case at bar was heard by the IBP-CBD wherein the parties agreed to submit the case for resolution on the basis of the documents they filed. The parties on even date were then ordered to submit their simultaneous memoranda, which they did, after which the case was considered submitted for resolution.²⁹ The IBP-CBD, through Investigating Commissioner Caesar P. Dulay, made a Report and Recommendation³⁰ dated April 10, 2002, the pertinent portion of which reads: We cannot help but take note of the fact that for a little more than a year respondent did not appear in any of the ten hearings set by the SEC Hearing Panel requiring him to testify therein. Whatever the reasons cited, respondent to our mind did not show an attitude of cooperation with the SEC Hearing Panel so as not to at least unduly delay the case. This much is demanded of him as an officer of the court. Canon 12 of the Code of Professional Responsibility requires that a lawyer shall exert every effort and consider it his duty to assist in the speedy and efficient administration of justice. After six or seven requests, respondent should have at least taken steps to cooperate, comply and accommodate in his calendar the orders of the SEC Hearing Panel. We see that the last minute motions and manifestations made by respondent does not reflect a very cooperative attitude on [h]is part toward the SEC Hearing Panel. As to the March 4, 1999 hearing, respondent says "Evidently, were it not for the delayed issuance by the Court of Appeals of its temporary restraining order in the "Benevola Case" respondent would have been in Cebu City on March 4, 1999 and complainants would not have had the chance to rely on this particular ground for their instant complaint." Respondent says that he was really scheduled for Cebu to file the Temporary Restraining Order since March 3, 1999 was that "I am scheduled to attend the hearing of LRC case No. 633 entitled "In re Application for Registration, Associacion Benevola de Cebu, Applicant" presently pending before Branch 6. Accordingly, I will not be in Manila on the scheduled hearing date therefore justifying my absence thereat." We have seen that there was no scheduled hearing of LRC Case No. 633 on March 4, 1999. Neither was the case scheduled for hearing on March 5, 1999. Respondent appeared on that date only to file "Manifestation with TRO" in Case No. 633. There was no scheduled hearing. There is a difference between attending a hearing and merely filing a manifestation in court which does not involve a hearing. Respondent used the circumstances occurring after the fact to justify and support his reason earlier given for not attending the March 4 hearing. Respondent was less than candid to the SEC Hearing Panel in his letter of March 3, 1999 when he said that he was to attend the hearing of LRC Case No. 633 and accordingly he will not be in Manila on the scheduled hearing date (March 4, 1999). In truth, LRC Case No. 633 was not scheduled for hearing on March 4, 1999. He was not even counsel of record as of March 3, 1999, the date of the letter. It appears to us that respondent has taken time to schedule a trip to file a Temporary Restraining Order which has not yet been obtained and then blame the Court of Appeals for not issuing said restraining order early enough ("he did not expect that he would wait in vain practically the whole day") and the resulting non-issuance of which he uses to justify his absence at the hearing on March 4,1999 set by the SEC Hearing Panel. We see respondent’s justification and argument a bit strained. Respondent has presumed too much in both the October 28, 1998 and March 4, 1999 hearings. Coupled with his non-appearance in eight previous settings by the SEC Hearing Panel, we find that respondent has not displayed the attitude and cooperation with the judicial process expected of him as a member of the bar and officer of the court. We reiterate the off-repeated reminder that the primary duty of a lawyer is to assist the courts in the administration of justice. Any conduct which tends to delay, impede or obstruct the administration of justice contravenes such lawyers’ duty [Bugaring vs, Espanol 349 SCRA 687 (2001)]. Respondent raises the matter of complainants personality to file the instant complain arguing that the same should be dismissed because the SEC-SICD is the offended party and should be the one filing the complaint. Respondent also cites the motion to cite him in contempt filed with the SEC as a prejudicial question and therefore the instant complaint should be dismissed on that basis. To address the above, we refer to the ruling in the case of Esquivas v. Court of Appeals, 272 SCRA 812 citing [I]n re Almacen, 31 SCRA 562 (1970) and we quote: "x x x x Disciplinary proceedings against lawyers are sui generis. Neither purely civil nor purely criminal, they don’t involve a trial of an action or a suit, but are rather investigations by the Court into the conduct of one of its officers. Not being intended to inflict punishment, it is in no sense a criminal prosecution. Accordingly, there is neither a plaintiff nor a prosecutor therein. It may be initiated by the Court motu propio. Public interest is its primary objective, and the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges as such. Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to account for his actuations as an officer of the Court with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice by purging the profession of members who by their misconduct have proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney. In such posture, there can thus be no occasion to speak of a complainant. RECOMMENDATION WHEREFORE, it is respectfully recommended that respondent be advised to cooperate more fully with the processes of the courts and assist more fully in the speedy and efficient administration of justice as an officer thereof. Respondent be warned that to continuously employ such last minute tactics and maintain a similar attitude towards court processes in the future would merit a more severe sanction from the Commission. (Emphasis and underscoring supplied) On June 29, 2002, the Board of Governors of the Integrated Bar of the Philippines (IBP) passed the following resolution³¹ adopting and approving the above-mentioned report. RESOLUTION NO. XV-2002-240 CBD Case No. 99-629 Servillano Batac, Jr., and Antonio Bonoan vs, Atty. Ponciano V. Cruz, Jr. RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution/Decision as Annex "A;" and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, Respondent is hereby ADVISED to cooperate more fully with the processes of the courts and assist more fully in the speedy and efficient administration of justice as an officer thereof. Respondent is WARNED that to continuously employ such last minute tactics and maintain similar attitude towards court processes in the future would merit a more severe sanction from the Commission. (Emphasis in the original) This Court finds respondent to have violated his oath as a lawyer. The Lawyer’s Oath reads: I ______________ of__________ do solemnly swear that I will maintain allegiance to the Republic of the Philippines; I will support its Constitution and obey laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, no consent to the doing of any court; I will not wittingly nor willingly promote or sue any groundless, false or unlawful suit, or give aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion, with all good fidelity as well to the courts as to my clients; and I impose upon myself this voluntary obligations without any mental reservation or purpose of evasion. So help me God. Respondent disobeyed legal orders of a duly constituted authority, the SEC hearing panel. He, through his counsel, promised before the hearing panel that he would submit the pertinent travel orders to substantiate his excuse for failing to appear on October 28, 1998. He welched on the promise, however, as nothing was heard from him since that date, to thus draw the hearing panel, on motion of petitioners, to again issue an order in December 1998 directing him to submit his travel documents. No such documents were ever submitted, however. It was only by his letter dated March 3, 1999 when the hearing panel received word from him again, when he was again asking that he be excused from attending the March 4, 1999 hearing. In his March 3, 1999 letter, however, he was completely silent on the promised submission of travel documents and the subsequent directive to comply therewith. Without doubt, respondent had exhibited a blatant disrespect for legal orders and processes. Not only by disobedience to SEC’s orders did respondent violate his oath as a lawyer. He likewise committed dishonesty concerning his excuses for his failure to attend the October 28, 1998 and March 4, 1999 hearings. Thus, with respect to the October 28, 1998 hearing, he claimed that he was of the bona fide belief that the decision turning down his request to go to the US would be reconsidered. Such explanation does not persuade. It is hard to believe that on the day that he claims he was supposed to leave, October 27, 1998, when he didn’t even have the necessary travel orders, he was still convinced that he would join the Philippine delegation to Minneapolis. That he gave such explanation only after a contempt case had been filed against him in April 1999, and not immediately after he had become convinced that the decision not to send him to the United States was not reconsidered, only casts doubts as to the truthfulness thereof. But even if this Court would give him the benefit of the doubt, he still should be faulted for having failed to timely inform the hearing panel that his departure on October 27, 1998 did not push through and that he was thus available to testify on October 28 & 29, 1998. With respect to the March 4, 1999 hearing, respondent, before said date, alleged by letter that he could not testify as he was scheduled to attend a hearing in the RTC Cebu for the Benevola case. As stated earlier, however, the Certification of the Branch Clerk of Court showed that he was not counsel of record in the Benevola case at the trial court level and there was no scheduled hearing of the "principal case" either on March 4 or 5, 1999. Respondent’s harping on the delay in the issuance by the Court of Appeals of a TRO does not excuse him. Since when could the decision to issue a TRO, as well as the date and time of its issuance, be accurately predicted? As correctly noted by the IBP, there is a difference between attending a hearing and mere filing of a manifestation, and it is apparent that respondent only used the circumstances occurring after the fact to justify and support his reason for not attending the March 4, 1999 hearing. This is a clear case of dishonesty. Respondent fully knew that several hearings had been postponed due to his unavailability, and they were reset on dates to adjust to his availability. The least he could have done was, as correctly pointed out by the IBP, to take steps to cooperate and accommodate in his schedule the hearings set by the hearing panel. Respondent cannot deny the importance of his would-be testimony as shown by the continuous request of the petitioners in the SEC case for his appearance. It was thus very inconsiderate, to say the least, on his part not to have taken time off from what he wanted to convey to be a hectic schedule. His last minute motions and manifestations that he be excused from the scheduled hearings confirm his indifference to the orders of the SEC hearing panel. Given the facts of the case, and Section 27 of Rule 138 of the Revised Rules of Court which reads: Section 27. Disbarment or suspension of attorneys by Supreme Court; grounds therefor. - A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a willful disobedience of any lawful order of a superior court, or for corruptly or willfully appearing as an attorney for a party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice. (Emphasis and underscoring supplied), the recommendation that he be advised and warned does not merit this Court’s approval. WHEREFORE, respondent, Atty. Ponciano V. Cruz, Jr., is hereby SUSPENDED from the practice of law for SIX (6) MONTHS, with WARNING that a repetition of the same or similar offense will be dealt with more severely. Let a copy of this Decision, upon its finality, be furnished the Integrated Bar of the Philippines and all the courts in the Philippines, and entered in the personal records of Atty. Cruz in the Office of the Bar Confidant. SO ORDERED. Vitug, (Chairman), Sandoval-Gutierrez, and Corona, JJ., concur. Footnotes ¹ Rollo at 3-7. ² Id. at 8-9. ³ Id. at 10. ⁴ Id. at 11-12. ⁵ Id. at 13-14. ⁶ Id. at 15-16. ⁷ Id. at 15. ⁸ Id. at 17-18. ⁹ Id. at 19. ¹⁰ Id. at 21. ¹¹ Id. at 22-23. ¹² Id. at 24. ¹³ Id. at 25-26. ¹⁴ Id. at 29. ¹⁵ Transcript of Stenographic Notes (TSN), October 28, 1998 at 3-9. ¹⁶ Rollo at 43. ¹⁷ Id. at 44. ¹⁸ Id. at 45. ¹⁹ Ibid.. ²⁰ Id. at 47. ²¹ Id. at 54-60. ²² Id. at 61 -70. ²³ Id. at 49-53. ²⁴ Id. at 50. ²⁵ Id. at 50-51. ²⁶ Id. at 51. ²⁷ Id. at 92-93. ²⁸ Id. at 52. ²⁹ Id. at 97. ³⁰ Id. at 160-172. ³¹ Id. at 158-159. The Lawphil Project - Arellano Law Foundation