[ A.C. No. 7121 (Formerly CBD Case No. 04-1244). March 08, 2022 ]
EMILIANI WILFREDO R. CRUZ AND CARLOS R. CRUZ, COMPLAINANTS, V. ATTY. EVELYN BRUL-CRUZ AND ATTY. GRACELDA N. ANDRES, RESPONDENTS.
CONCURRING OPINION
CAGUIOA, J.:
This is a disbarment complaint1 filed against Atty. Evelyn Brul-Cruz (Atty. Brul-Cruz) and Atty. Gracelda N. Andres (Atty. Andres) (collectively, respondents) for grave misconduct, dishonesty, fraud, and misrepresentation, in violation of the Lawyer's Oath and the Code of Professional Responsibility (CPR).
The ponencia finds both respondents guilty. In particular, Atty. Brul-Cruz is found guilty of violating Canons 1, 7, and 10, and Rules 1.01, 1.02, 7.03, 10.01, 10.02 and 10.03 of the CPR and the Lawyer's Oath, while Atty. Andres is found liable for the unauthorized practice of law for failing to acquire written authority from the House of Representatives (HoR). Accordingly, the ponencia deems it appropriate to suspend Atty. Brul-Cruz from the practice of law for a period of six (6) months, and to reprimand Atty. Andres.2
I agree with the disposition of the ponencia. This separate opinion expounds on my reasons for concurring with the ponencia on the administrative liability and the penalty imposed on respondents.
I.
At the onset, it must be emphasized that the Investigating Commissioner of the Integrated Bar of the Philippines (IBP) recommended the dismissal of the disbarment complaint against respondents.3 The Report and Recommendation4 of the Investigating Commissioner was based on the results of a fact-finding investigation, including a mandatory conference during which the parties appeared before the Investigating Commissioner himself.5 At the conclusion of the hearing, the parties were asked to submit their respective position papers, with supporting affidavits and documentary evidence.6
In its Resolution dated January 28, 2006, the IBP Board of Governors (BOG) resolved to adopt and approve the recommendation to dismiss the complaint.7 When complainants moved for the reconsideration of this Resolution, the IBP BOG unanimously resolved to deny the motion for being "a mere reiteration of the matters which had already been threshed out and taken into consideration."8
Aggrieved, complainants filed a Petition for Certiorari9 to assail the resolutions of the IBP, which the Court referred to the Office of the Bar Confidant (OBC) for evaluation, report, and recommendation.10 The OBC, after resolving to require respondents to comment,11 issued its own recommendation to indefinitely suspend both respondents from the practice of law.12
It is worth noting that apart from complainants' additional allegations regarding the proceedings before the IBP, their Petition for Certiorari is only a restatement of their complaint against respondents. The documentary evidence attached to the petition are also the same evidence assessed and weighed by the IBP and its Investigating Commissioner. In this regard, and in light of the conflicting findings of the IBP and the OBC, the Court should carefully scrutinize the OBC's basis for effectively overturning the recommendation of the IBP.
The IBP notably found that the complaint involves "a bitter family dispute about inheritance."13 The IBP concluded that Atty. Brul-Cruz was already in possession of the subject properties at the time of the expropriation, and she believed, in good faith, that the properties were assigned to her pursuant to the agreement of the Heirs of Carlos G. Cruz, Sr.14 As regards the allegations against Atty. Andres, it is significant to highlight that the IBP's Report and Recommendation did not mention any, or on its own make a finding of misconduct, much less of deceit, dishonesty, and misrepresentation.
In arriving at a conclusion different from the IBP, however, the OBC relied upon Atty. Brul-Cruz's counter-affidavit in the proceedings before the Presidential Anti-Graft Commission (PAGC) where she admitted that the agreement among the Heirs of Carlos G. Cruz, Sr. on the distribution of the decedent's properties was never finalized. To the OBC, this admission negated her supposed good faith in assuming ownership over the subject properties.15 In stark contrast to the OBC's independent factual findings on Atty. Brul-Cruz's misconduct, there was no contrary evidence cited by the OBC to ascribe liability on Atty. Andres. The OBC simply relied on the allegations of complainants to support its recommendation to likewise overturn the findings of the IBP and indefinitely suspend Atty. Andres.
Since the OBC's recommendations relied on the same evidence that the IBP had likewise passed upon, the Court should cautiously assess which tribunal's factual conclusions deserve more credence. For this purpose, I respectfully submit that the Court should consider the IBP and the OBC's manner of appreciating the parties' evidence.
As a general rule, premium should be given to first-hand reception of evidence, as well as the opportunity to observe the conduct and demeanor of the parties during the mandatory conference. In the same way that a trial court's assessment of the demeanor of the witness during trial is given weight and respect by appellate courts, the IBP, as a fact-finding tribunal, is also generally in a better position to assess the veracity of the parties' claims and the value of evidence they presented. Thus, the Court accords, as it should, great weight to the factual findings of the IBP and the same will be overturned only when strong evidence is adduced to the contrary.
Here, the OBC has shown that Atty. Brul-Cruz's main basis for her defense of good faith was belied by the admission she made in her counter-affidavit submitted in the proceedings before the PAGC. However, it has miserably failed to do the same with the case of Atty. Andres. As such, the Court should be more cautious in simply adopting the findings of the OBC as regards Atty. Andres' liability.
II.
On the administrative liability of Atty. Andres
The ponencia dismissed complainants' claims that Atty. Andres represented them without their parents' authority when she appeared as counsel of Carlos G. Cruz, Sr. and Emiliana Cruz (Spouses Cruz), despite the fact that the spouses had passed away years prior to the filing of the pleadings.16
I concur.
Contrary to the bare allegation of complainants, the records show that Atty. Andres did not deliberately mislead the courts. Insofar as the pleadings filed in the expropriation proceedings are concerned, it is clearly indicated in the body of these pleadings that they were filed by Atty. Andres on behalf of the "Heirs of Carlos G. Cruz represented by Evelyn B. Cruz."17 It was expressly alleged in the Answer dated January 9, 2001 filed by Atty. Andres that Carlos G. Cruz, Sr. died intestate, and that the heirs referred to therein were his children with Atty. Brul-Cruz.18 Attached to the Answer was the Death Certificate19 of Carlos G. Cruz, Sr., which showed that the informant was his son, Apolinario R. Cruz who, in turn, was evidently not among the heirs represented by Atty. Andres.
The foregoing circumstances clearly prove that Atty. Andres made an appearance only for Evelyn B. Cruz as the surviving spouse of the deceased Carlos G. Cruz, Sr. and the children sired by him to her. These accordingly belie any imputation of deceit and dishonesty on her part. Atty. Andres obviously did not misrepresent to the court that Carlos G. Cruz, Sr. was still alive as she specifically alleged at the beginning of the expropriation proceedings that he had already died. To be sure, she herself attached the Death Certificate of Carlos G. Cruz, Sr. to the Answer she prepared. These do not show any sinister motive to exclude the other heirs of Carlos G. Cruz, Sr. (sired from the first wife) from the expropriation proceedings.20 None of the pleadings directly alleged or implied that the heirs she represented were the sole heirs of Carlos G. Cruz, Sr.
Furthermore, pursuant to the Implementing Rules and Regulations of Republic Act (R.A.) No. 8974,21 the applicable law on expropriation at that time, it is the government which has the onus of impleading as defendants "all persons owning or claiming to own, or occupying, any part thereof or interest"22 in the expropriated property. Thus, it was the burden of the complainant in the expropriation proceedings — the Republic of the Philippines, not Atty. Andres — to manifest that there were other heirs to the subject property. More importantly, complainants were not precluded from intervening in the expropriation proceedings, especially since the titles over the subject properties were clearly registered in the names of their deceased parents, the Spouses Cruz.
As regards the pleadings relating to the issuance of the owner's duplicate title, both the Petition23 dated April 15, 2002 and the Reply (to Opposition)24 dated July 4, 2002 clearly show that they were filed on behalf of therein petitioner Atty. Brul-Cruz. The Petition was also forthright about Atty. Brul-Cruz being the second wife of Carlos G. Cruz, Sr., as the action was premised on the purported agreement between Atty. Brul-Cruz and "her stepchildren."25 The agreement among the heirs of Carlos G. Cruz, Sr. was even attached to the Petition and made an integral part thereof.26
Again, this belies complainants' accusation that Atty. Andres deliberately made it appear that she represented the Spouses Cruz in order to "maneuver the titles."27 It is clear from the pleadings that there were no defendants impleaded therein, much less the Spouses Cruz themselves. On this basis, there is merit in Atty. Andres' claim that the signature pages, which indicated that she is the "Counsel for Defendant Sps. Carlos Cruz and Emiliana Cruz", were mere clerical errors made without any deliberate attempt to mislead.
All told, the records sufficiently establish that Atty. Andres did not maliciously misrepresent herself as counsel for the Spouses Cruz without their consent or authority. An examination of the pleadings themselves, as well as their annexes, readily disproves this claim.28 While Atty. Andres may have mistakenly indicated an erroneous fact, this oversight, and her failure to ensure that everything in the pleading was correct or accurate, do not rise to the level of deceit, dishonesty, or gross misconduct, which constitutes a violation of Rule 1.0129 of the CPR. Neither does the foregoing inadvertence amount to a violation of Rule 10.0130 prohibiting lawyers from engaging in any falsehood or conduct that misleads the court, as it is quite evident that the errors were not made for some dishonest purpose.
Anent the allegation that during her employment as a government lawyer, Atty. Andres was practicing her profession without the requisite authority, I again concur with the ponencia that she should be held liable for this violation.31
Section 7 of R.A. No. 671332 prohibits public officials and employees from engaging in certain acts or entering into transactions.£A⩊phi£ In particular, government employees are prohibited under paragraph (b)(2) of the same provision from engaging in the private practice of a profession. This prohibition, however, is not absolute. A government employee may be granted permission allowing a limited practice of profession, subject to the following conditions: (1) such practice is authorized by the Constitution or the law; and (2) such practice will not conflict or tend to conflict with the public official or employee's official functions.
During the time material to the averments of the complaint, the governing regulation was Civil Service Commission (CSC) Resolution No. 991907,33 issued on August 27, 1999. Section 18 of said resolution states:
SEC. 18. Unless otherwise provided by law, no officer or employee shall engage directly or indirectly in any private business or profession without a written permission from the head of agency. Provided that this prohibition will be absolute in the case of those officers and employees whose duties and responsibilities require that their entire time be at the disposal of the government: provided further, that if an employee is granted permission to engage in outside activities, the time devoted outside of office hours should be fixed by the head of the agency so that it will not impair in any way the efficiency of the officer or employee nor pose a conflict or tend to conflict with the official functions. (Emphasis supplied)
Atty. Andres does not dispute that as of the year 2000, she was employed in the HoR.34 She submits that by virtue of the separate Memoranda issued on May 4, 1999, March 30, 2001, and March 29, 2004, the HoR Secretary General granted her request for permission to engage in a limited practice of law.35 However, the authority granted to her does not correspond to the periods she represented Atty. Brul-Cruz, particularly: (a) the expropriation proceedings initiated on October 12, 2000;36 (b) the action for the issuance of owner's duplicate title, initiated on April 15, 2002;37 and (c) the judicial settlement of the estate of Carlos G. Cruz, Sr. initiated on May 6, 2003.38
As the ponencia aptly ruled, engaging in the unauthorized private practice of law is not grievous enough to justify the penalty of disbarment.39 In Yumol, Jr. v. Ferrer, Sr.,40 respondent appeared and filed pleadings in various court cases while he was employed as a lawyer in the Commission of Human Rights. Records also showed that respondent notarized numerous documents during his employment. There being no written request for permission to engage in private practice and a duly approved leave of absence, the Court found respondent guilty of gross misconduct. In penalizing respondent with a one (1)-year suspension from the practice of law, the Court significantly remarked:
Complainants ask that respondent be disbarred. On imposing the supreme penalty of disbarment, the rule is that disbarment is meted out only in clear cases of misconduct that seriously affect the standing and character of the lawyer as an officer of the court. While we will not hesitate to remove an erring attorney from the esteemed brotherhood of lawyers, where the evidence calls for it, we will also not disbar him where a lesser penalty will suffice to accomplish the desired end. In the case at bar, the IBP Investigating Commissioner Rebecca V. Maala recommended the suspension of respondent for two (2) years while the IBP Board of Governors recommended a lighter penalty of six (6) months suspension. Taking our cue therefrom, we find one (1) year suspension to be sufficient sanction against respondent—suspension being primarily intended not as a punishment, but as a means to protect the public and the legal profession.41 (Underscoring supplied)
Meanwhile, in Lorenzana v. Fajardo,42 respondent was found liable for multiple violations of the CPR, which included the unauthorized practice of law during his employment as Legal Officer in the Urban Resettlement Office of Manila. Respondent was reprimanded and suspended from the practice of law for a shorter period of six (6) months. The Court imposed the same period of suspension on respondents in Lim-Santiago v. Sagucio,43 and Catu v. Rellosa,44 and against one of the respondents in Cabalida v. Lobrido, Jr.45
Significantly, the Court noted in Abella v. Cruzabra46 that under the Uniform Rules on Administrative Cases in the Civil Service, engaging in the private practice of profession without authority is considered a light offense punishable by reprimand.47 Respondent was therefore merely reprimanded, with a warning against the repetition of the same or similar act in the future.
There is no reason for the Court to deviate from the foregoing principles, especially in this case where evidence of deceit and gross misconduct is sorely lacking. As important, this appears to be Atty. Andres' first and only administrative case. Certainly, this should be appreciated as a mitigating circumstance in her favor. Thus, I agree that Atty. Andres should be penalized with a reprimand for engaging in the private practice of her profession without authority.
III.
On the administrative liability of Atty. Brul-Cruz
The finding of grave misconduct against Atty. Brul-Cruz was hinged on her misrepresentation that the properties, which were the subject of the proceedings on expropriation and issuance of owner's duplicate title (Bulacan Properties), were assigned to her by the Heirs of Carlos G. Cruz, Sr. The ponencia finds that Atty. Brul-Cruz intentionally and deliberately made untruthful statements, having known that the letter from one of the heirs was merely a proposal and not an actual settlement of the estate.48
The records show that in the petition for issuance of owner's duplicate title, Atty. Brul-Cruz claimed to have been in possession of the certificates of title over the Bulacan Properties. She further stated that they appear to have been lost when she transferred her residence from Sta. Mesa, Manila to Quezon City.49 However, these allegations later turned out to be false, as the titles were in the possession of complainant Carlos R. Cruz. He was able to refute these allegations before the trial court and present the original owner's duplicate copies of the titles in his possession.50
Thus, even without going into the evidentiary value of the purported agreement among the Heirs of Carlos G. Cruz, Sr. — which is notably being disputed by complainants — the fact remains that Atty. Brul-Cruz willfully misrepresented that the titles over the subject properties were lost, when in fact, they were not. As well, Atty. Brul-Cruz cannot argue that the agreement among the heirs was already final and binding, and in the same breath, initiate an action for the settlement of the intestate estate of Carlos G. Cruz, Sr.51 As the OBC astutely observed, and as noted by the ponencia,52 Atty. Brul-Cruz was fully aware of the nature of said agreement when she alleged in her Counter-Affidavit53 before the PAGC that:
3. Respondent [Atty. Brul-Cruz] was surprised why, Complainants, being her step[-]children, is questioning the source of income for her acquisition of properties stated in her SAL when they very well know the sources of respondents' (sic) income. Attached herewith is the letter of Complainant Carlos Jr. who, in July 2, 1994 wrote to remind me of his proposal years before for property settlement/arrangement of the De La Rosa-Cruz/Brul-Cruz Family, which was never finalized, copy of which is hereto attached as Annex "2" and made an integral part hereof.
x x x x
7. Complainants were also aware that the proposal for property settlement/arrangement of the properties left by their father was never finalized and Respondent [Atty. Brul-Cruz] did nothing to push through said settlement, until now, for she was busy working as an Assistant Prosecutor as well as tending to the business left by their father[.]54 (Emphasis supplied; original emphasis omitted)
The foregoing claims of Atty. Brul-Cruz are materially inconsistent with her supposed good faith reliance on the agreement among the heirs of Carlos G. Cruz, Sr. She vacillates between the binding and non-binding nature of the agreement, depending on how it can support her arguments before the various proceedings involving the subject properties. These inconsistencies clearly show a willful intention to misrepresent and mislead the courts.
In similar cases involving misrepresentation before the courts, the Court did not immediately disbar the respondent but only imposed the penalty of suspension from the practice of law. For instance, in Umaguing v. De Vera,55 respondent was suspended for six (6) months because he allowed the submission of a falsified affidavit. In Lukang v. Llamas,56 respondent was suspended for the same period when he falsely claimed in the petition for reconstitution that his clients were the true and absolute owners of the property. Respondent therein further misrepresented that the property had been free from all liens and encumbrances, despite knowing that the question of ownership was not yet settled.
It likewise bears noting that Atty. Brul-Cruz is entitled to some measure of forbearance, it appearing that this is her first administrative liability. Accordingly, while there is substantial evidence to find Atty. Brul-Cruz liable for misrepresentation and deceit in violation of Rules 7.03, 10.01, and 10.03 of the CPR, I agree with the ponencia that the suspension of Atty. Brul-Cruz from the practice of law for six (6) months is appropriate.57
IV.
In all, I concur with the ponencia. I vote to suspend Atty. Brul-Cruz from the practice of law for a period of six (6) months, and to reprimand Atty. Andres for her unauthorized private practice of law. Again, I submit that the Court should exercise restraint in imposing the most severe penalty of disbarment. The Court aptly held in Salomon, Jr. v. Frial58 as follows:
Disbarment, jurisprudence teaches, should not be decreed where any punishment less severe, such as reprimand, suspension, or fine, would accomplish the end desired. This is as it should be considering the consequence of disbarment on the economic life and honor of the erring person. x x x59
This ruling should, with more reason, resonate with the Court during the extraordinary time of the pandemic. Atty. Brul-Cruz should be disciplined for her misconduct but under the circumstances obtaining in this case, it would be unconscionable and unjust to perpetually take away her source of livelihood. While the Court is always vigilant in safeguarding the integrity of the legal profession against unscrupulous lawyers, the penalty of disbarment should be reserved only for the most grievous acts clearly supported by the evidence on record. After all, "[t]he power to disbar or suspend ought always to be exercised on the preservative and not on the vindictive principle, with great caution and only for the most weighty reasons."60
Footnotes
1 Rollo (Vol. I), pp. 2-19.
2 Ponencia, p. 17.
3 Rollo (Vol. I), p. 875.
4 Id. at 863-875.
5 Id. at 772-860.
6 Id. at 859.
7 Id. at 862.
8 Rollo (Vol. II), p. 1797.
9 Id. at 1812-1887.
10 Id. at 2048.
11 Id. at 2049-2051.
12 Id. at 2257-2261.
13 Rollo (Vol. I), p. 872.
14 Id. at 872-874.
15 See rollo (Vol. II), pp. 2257-2259.
16 See ponencia, pp. 14-15.
17 Rollo (Vol. I), pp. 40-48.
18 Id. at 44-45.
19 Id. at 50.
20 Rollo (Vol. II), pp. 1867-1870.
21 IMPLEMENTING RULES AND REGULATIONS OF REPUBLIC ACT NO. 8974 (AN ACT TO FACILITATE THE ACQUISITION OF RIGHT-OF-WAY, SITE OR LOCATION FOR NATIONAL GOVERNMENT INFRASTRUCTURE PROJECTS AND FOR OTHER PURPOSES), February 12, 2001.
22 Id., Sec. 8.
23 Rollo (Vol. I), pp. 65-68.
24 Id. at 104-105.
25 Id. at 65.
26 Id. at 71-74.
27 Rollo (Vol. II), p. 1870.
28 See Villamor, Jr. v. Santos, A.C. No. 9868 (Formerly CBD Case No. 05-1617), April 22, 2015, 757 SCRA 1.
29 Rule 1.01 reads: "A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct."
30 Rule 10.01 reads: "A lawyer shall not do any falsehood, nor consent to the doing of any in Court; nor shall he mislead, or allow the Court to be misled by any artifice."
31 Ponencia, p. 14.
32 CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES, February 20, 1989.
33 Amendments to CSC MC 40, s. 1998.
34 TSN, March 14, 2005, pp. 4-5, rollo (Vol. I), pp. 775-776.
35 Rollo (Vol. I), pp. 721-723.
36 Id. at 26-49.
37 Id. at 65-66, 104-111.
38 Id. at 176-183.
39 See ponencia, pp. 15-16.
40 A.C. No. 6585, April 21, 2005, 456 SCRA 475.
41 Id. at 492-493. Citations omitted.
42 A.C. No. 5712, June 29, 2005, 462 SCRA 1.
43 A.C. No. 6705, March 31, 2006, 486 SCRA 10.
44 A.C. No. 5738, February 19, 2008, 546 SCRA 209.
45 A.C. No. 7972, October 3, 2018, 881 SCRA 321.
46 A.C. No. 5688, June 4, 2009, 588 SCRA 218.
47 Id. at 225.
48 Ponencia, p. 10.
49 Rollo (Vol. I), p. 65.
50 TSN, September 25, 2002, pp. 4-9, id. at 78-83.
51 Rollo (Vol. I), pp. 176-184.
52 Ponencia, pp. 10-11.
53 Rollo (Vol. I), pp. 93-97.
54 Id. at 93-94.
55 A.C. No. 10451, February 4, 2015, 749 SCRA 473.
56 A.C. No. 4178, July 8, 2019, 907 SCRA 566.
57 Ponencia, p. 12.
58 A.C. No. 7820, September 12, 2008, 565 SCRA 10.
59 Id. at 15-16.
60 Gatmaytan, Jr. v. Ilao, A.C. No. 6086, January 26, 2005, 449 SCRA 269, 270. Italics omitted; citations omitted.
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