A.C. No. 9226 (Formerly CBD 06-1749)




A.C. No. 9226, June 14, 2016, ♦ Decision, Bersamin, [J] ♦ Concurring Opinion, Leonen, [J] EN BANC [ A.C. No. 9226 (Formerly CBD 06-1749). June 14, 2016 ] MA. CECILIA CLARISSA C. ADVINCULA, COMPLAINANT, VS. ATTY. LEONARDO C. ADVINCULA, RESPONDENT. CONCURRING OPINION LEONEN, J.: Before his admission to the bar, respondent Atty. Leonardo C. Advincula—who was married to complainant Dr. Ma. Cecilia Clarissa C. Advincula—entered into a brief extra-marital relationship with Ma. Judith Gonzaga, with whom he had a child.1 The standard of morality and the rules of conduct under the Code of Professional Responsibility are applicable only to lawyers. These are not enforced against persons who have not taken the lawyer's oath. A lawyer's commitment to the lawyer's oath or any standard of morality and conduct under the Code of Professional Responsibility starts only upon taking that oath. Oaths are not senseless utterances. Lawyers who take their oath consent to this Court's administrative jurisdiction over their actions. The oath is essentially a promise to act consistently with the value-expectations of this Court. The significance of the oath rests on many assumptions. Taking the oath implies notice to the person of the standards he or she is expected to abide by. It not only implies consent to, but also assumes consciousness of those standards. The person allowed to take the oath is assumed to have the capacity to consider and control his or her actions accordingly. For these reasons, violation of the oath or of the Code of Professional Responsibility is deemed to merit this Court's imposition of a penalty. When a lawyer takes the oath, any action inconsistent with the oath or with the Code of Professional Responsibility may be interpreted as a willful disregard of the standards embodied in the oath or the Code of Professional Responsibility. As expressed in our Rules of Evidence, a person is presumed to know and intend "the ordinary consequences of his [or her] voluntary act."2 The oath places "penalty" under the great scope of "ordinary consequence" of a lawyer's actions. On the other hand, without the taking the oath, we cannot presume a person's conscious and careful consideration of his or her acts in conforming with this Court's moral and behavioral standards. Without the taking the oath, administrative penalties do not rise to the level of ordinary consequence of a person's actions. This Court, as guardian of constitutional rights, should lead other institutions by exemplifying through its processes the import of the principle of due process.3 A person cannot adjust his or her past actions now to conform to the standards imposed by an oath he or she takes after. It is unreasonable to expect a person to abide by standards that he or she cannot be presumed to know and apply to actions he or she can no longer control. Respondent cannot be expected to abide by the standards imposed by the lawyer's oath or by the Code of Professional Responsibility. At that time, this Court had no administrative jurisdiction over his actions. He was not yet a lawyer when he entered into a relationship with Ma. Judith Gonzaga during his marriage with complainant. Imposing a penalty for respondent's actions before he took the lawyer's oath reduces the oath to nothing but a frivolous ceremony. We undermine the significance of the oath if, on that basis, we penalize a person for his or her actions, whether or not he or she subscribed to that oath. While possession of good morals is required before and during one's membership to the bar,4 the bases and effects of the finding that one meets or does not meet the standard of morality are different in these instances. For admission to the bar, good morals are solely based on a person's actions before his or her admission. A person found to be lacking of the required good morals is disqualified from membership in the bar. A person's actions, on which the finding that a person has met the required good morals is based, are looked into for purposes of admission—not penalty. On the other hand, for retaining membership in the bar, the lawyer's actions while he or she is a member are looked into.1aшphi1 These acts may be the bases of administrative penalty. However, this is not to say that a lawyer's actions before his or her admission cannot be the bases of his or her removal from the bar. After all, a person who has not met the moral standards before admission should not even be admitted to the bar. Thus, if for some reason, grossly immoral acts not considered by this Court during application are later made known and proved to this Court, this Court may choose to remove him or her without disregarding evidence of any possible moral transformation that could have taken place later.5 However, this Court should not be too quick to judge a person's actions as grossly immoral so as to constitute unfitness to become a member of the bar. In Reyes v. Wong,6 this Court has ruled that for an act to be administratively punishable for gross immorality, "it must be so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree."7 Further: [T]he same must be established by clear and convincing proof, disclosing a case that is free from doubt as to compel the exercise by the Court of its disciplinary power. . . . Likewise, the dubious character of the act done as well as the motivation thereof must be clearly demonstrated.8 There are different aspects of morality. Morality may be religious or secular. In Perfecto v. Esidera:9 Morality refers to what is good or right conduct at a given circumstance. In Estrada v. Escritor, this court described morality as "'how we ought to live' and why." Morality may be religious, in which case what is good depends on the moral prescriptions of a high moral authority or the beliefs of a particular religion. Religion, as this court defined in Aglipay v. Ruiz, is "a profession of faith to an active power that binds and elevates man to his Creator." A conduct is religiously moral if it is consistent with and is carried out in light of the divine set of beliefs and obligations imposed by the active power. Morality may also be secular, in which case it is independent of any divine moral prescriptions. What is good or right at a given circumstance does not derive its basis from any religious doctrine but from the independent moral sense shared as humans.10 (Citations omitted) In the same case, this Court stated that the rule against immorality should have a secular basis. Our jurisdiction to determine what is moral or immoral should only be limited to conduct that affects public interest. Immoral conduct, if made the basis for imposing administrative penalty, should refer to conduct as officers of the court. It must be of such depravity as to reduce the public's confidence in our laws and in our judicial system,11 thus: The non-establishment clause bars the State from establishing, through laws and rules, moral standards according to a specific religion. Prohibitions against immorality should be based on a purpose that is independent of religious beliefs. When it forms part of our laws, rules, and policies, morality must be secular. Laws and rules of conduct must be based on a secular purpose. In the same way, this court, in resolving cases that touch on issues of morality, is bound to remain neutral and to limit the bases of its judgment on secular moral standards. When laws or rules refer to morals or immorality, courts should be careful not to overlook the distinction between secular and religious morality if it is to keep its part in upholding constitutionally guaranteed rights.1aшphi1 There is the danger of "compelled religion" and, therefore, of negating the very idea of freedom of belief and non-establishment of religion when religious morality is incorporated in government regulations and policies. As explained in Estrada v. Escritor. Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals would require conformity to what some might regard as religious programs or agenda. The non-believers would therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a "compelled religion" anathema to religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary religious or non-religious views that would not support the policy. As a result, government will not provide full religious freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are second-class citizens. Expansive religious freedom therefore requires that government be neutral in matters of religion; governmental reliance upon religious justification is inconsistent with this policy of neutrality. . . . . . . . . We have jurisdiction over matters of morality only insofar as it involves conduct that affects the public or its interest. Thus, for purposes of determining administrative liability of lawyers and judges, "immoral conduct" should relate to their conduct as officers of the court. To be guilty of "immorality" under the Code of Professional Responsibility, a lawyer's conduct must be so depraved as to reduce the public's confidence in the Rule of Law. Religious morality is not binding whenever this court decides the administrative liability of lawyers and persons under this court's supervision. At best, religious morality weighs only persuasively on us.12 (Citations omitted) Respondent had a relationship with another woman during his marriage with complainant. Out of that extra-marital relationship, a child was born. All these had happened before he became a lawyer. Indeed, some may find respondent's actions before becoming a lawyer immoral. However, these do not constitute grossly immoral conduct that is so corrupt and reprehensible for this Court to consider him unfit to be a member of the bar. The dubious character of respondent's actions and his ill-motive were not clearly demonstrated. Respondent's extra-marital relationship happened during his and complainant's temporary separation. At the time of respondent's application for bar admission, his relationship with his alleged mistress, whom he claimed he did not marry, had already ended. He was already reunited with" complainant, his wife. As a result of their reconciliation, they even had their third child, Jose Leandro. In light of respondent's reconciliation with complainant prior to becoming a lawyer, his actions cannot be described as so depraved as to possibly reduce the public's confidence in our laws and judicial system. ACCORDINGLY, I concur in the result. Footnotes 1 Ponencia, p. 2. 2 RULES OF COURT, Rule 131, sec. 3(c). 3 CONST., art. III, sec. 1 provides: SECTION 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. 4 See Cordova v. Cordova, 259 Phil. 278, 281 (1989) [Per Curiam, En Banc]. See also Montagne v. Dominguez, 3 Phil. 577, 589 (1904) [Per J. McDonough, En Banc]. 5 See Vitug v. Atty. Rongcal, 532 Phil. 615, 633 (2006) [Per J. Tinga, Third Division]. 6 159 Phil. 171 (1975) [Per J. Makasiar, First Division]. 7 Id. at 177, citing RULES OF COURT (1964), Rule 138, sec. 27; Soberano v. Villanueva, 116 Phil. 1208, 1212 (1962) [Per J. Concepcion, En Banc]; Mortel v. Aspiras, 100 Phil. 587, 591-593 (1956) [Per J. Bengzon, En Banc]; Royong v. Oblena, 117 Phil. 865, 874 (1963) [Per J. Barrera, En Banc]; Bolivar v. Simbol, 123 Phil. 450, 457-458 (1966) [Per J. Sanchez, En Banc]; and Quingwa v. Puno, 125 Phil. 831, 838 (1967) [Per J. Regala, En Banc]. 8 Id. at 178, citing Go v. Candoy, 128 Phil. 461, 465 (1967) [Per J. Castro, En Banc]. 9 A.M. No. RTJ-15-2417, July 22, 2015 [Per J. Leonen, Second Division]. 10 Id. at 7-8. 11 Id. at 9. 12 Id. at 8-9. The Lawphil Project - Arellano Law Foundation