OCA CIRCULAR NO. 87-2003, July 07, 2003

For the mformaiion and guidance of all concerned, quoted hereunder is
the decision of the Court’s Second Division in Administrative Case No.
5305 entitled “Marcisno P. Brion, Jr. vs. My. Francisco F. Brillantes,
Jr.” dared Msrch 15, 2003, to wit:

“In this petition for disbarment, complainant Marciano Bnon, Jr.,
charges the respondent., Atty. Francisco Brillantes, Jr., of having
willfully violated a lawful order of this Court in. A.M. No. MTJ92-706,
entitled Lupo Almodiel Atienzav. Judge Francisco F. Brillantes, Jr.^[1] The decretal portion of our resolution in Atienza reads:

WHEREFORE, respondent is DISMISSED from the service with
forfeiture of all leave and retirement benefits and with prejudice to
reappointment in any branch, instrumentality or agency of the
government, including government-owned and controlled corporations. This
decision is immediately executory.

SO ORDERED.^[2]

Respondent’s dismissal in the aforesaid case was ordered after he
was found guilty of Gross Immorality and apearance of Impropriety during
his incumbency as presiding ‘”judge.of the Metropolitan Trial Court,
Branch 20, Manila.

Petitioner now avers that respondent violated out decree of
perpetual disqualificarion imposed upon him from assuming any post hi
government service, including any post in government-owned and
controlled corporations, when he accepted a legal consultancy post at
the Local Water Utilities Administration (LWUA), from 1998 to 2000. Said
consultancy included an appointment by LWUA as 6m member of the Board
of Directors of the Urdaneta (Pangasinan) Water District. Upon
expiration of the legal consultancy agreement, this was subsequently
renewed as a Special Consultancy Agreement.

Petitioner contends that while both consultancy agreements
contained a proviso to the effect that nothing therein should be
construed as establishing an employer-employee relationship between LWUA
and respondent, the inclusion of this proviso was only a ploy to
circumvert our order barring respondent from appointment to a.
government agency. Petitioner points out in reality, respondent enjoys
the same rights and privileges as a regular employee, to wit:^[3]

1. Issuance of LWUA properties such as a cellular phones with
   accessories, as evidenced by the covering Property Issue Slips with
   respondent signing as ‘Accountable Employee’;[4]

2. Official travel io various places in the country as shown by
   Reports of Authorized Travel kepi by LWUA’s General Services Division^[5] and Report of Travel accomplished byrespondent himself;[6]

3. Attendance m water district conventions and meetings held in various provinces;[8]

4. Membership in several sensitive LWUA committees such as the
   Prequalification, Bids, and Awards Committee (PBAC),
   Build-IOpeate-Transfer (EOT) Committee, among others, with receipt of
   corresponding honoraria as borne out by various Disbursement Vouchers;[9]

5. Sitting, at. meetings of the LWUA Board of Trustees as evidenced by the minutes of such meetings;[10]

6. Receipt of Productivity Incentive Bonus in 1999.

Petitioner submits thai all of the foregoing constitute deceitful
conduct, gross misconduct, and wffifull disobedience to a decree of this
Court, and show that respondent is unfit to be member of the Bar.

In his comment,^[11]
respondent, admits the existence of the Legal Consultancy Contract as
well as the Special Consultancy Contract. However, he raises the
affirmative defense that under Civil Service Commission, he raises the
affirmative defense that under Civil Service Commission (CSC) Memorandum
Circular No. 27, Series of 1993, services rendered pursuant to a
consultancy contract shall not be considered government services and
therefore, are not covered by Civil Service Law, rules and regulations.

Further, says respondent, according to the same Memorandum Circular
issued by the Commission, consultancy coniiacts do not have to be
submitted to the Commission for approval. With respect to Ins
designation as the 6th Member of the Board of Directors of the Urdaneta
Water District, respondent reasons out that the same is not a
“reappoiniment”, which is prohibited by our ralmg in Aii&nza, as
said designation is not an. organic appointment to a LWUA plant-ilia
position. Hence, according to respondent, ihe CSC need not pass approval
upon his temporary designation.

Respondent also argues that all the members of the Urdaneta Water
District Board, especially the 6th Member, who comes from the LWUA,
assumed such functions merely by virtue of a designation and only in
addition to their regular duties. In any event, says respondent, his
designation as 6^th Member was revoked in April 2000 and the
Special Consultancy Contract was pre-terminated on April 30, 2000. It
has never been renewed since then. With respect to his use of LWUA
properties, respondent, admits receiving the cellular phone unit but
insists that he merely borrowed it from one Solomon Badoy, a former LWUA
Board of Tmstees Member.

In our Resolution of February 19, 2001, we referred this case to
the Integrated Bar of the Philippines (IBP) for investigation, report
and recommendation. The IBP Commission’on Bar Discipline found that
respondent, willfully violated a lawful order of this Court and
recommended that be suspended from the practice of law for one (1) year
and lined ten thousand (P10,000) pesos.

There is no question that the LWUA is a government-owned and
controlled corporation, created by virtue of Presidential Decree No.
198.^[12] As such, our ruling
in the Menm case, A.M. No. MTJ-92-706, which categorically prohibits
respondent’s appointment to any position in any government-owned and
controlled corporation, clearly encompasses and extends to LWUA
positions.

In the instant case the respondent does not deny die petitioner’s allegations.^[13]
Instead, he offers the existence of Memorandum Circular No. 27, Series
of 1993 (MC No. 27, s. 1993) to exculpate himself from the charge
against him. However, it does not escape our attention that the very
Memorandum Circular that respondent cites before this Court provides
that the duties enumerated in the consultancy contract are mainly
advisory in nature.^[14]

Without belaboring the definition of “advisory,” ^[15]it
appears obvious to us that, the tasks and duties that respondent
performed pursuant to the consultancy contract, cannot, by any stretch
of imagination, be deemed merely advisory in nature.

An adviser does not. exercise supervisory powers over LWUA
employees nor does he issue written instructions to them. An adviser is
not entitled to a seat, in such vital LWUA committees like PBAC and the
BOT Committee. Also, respondent’s continuous receipt of honoraria for
sitting as a member of certain LWUA Committees, particularly the BOT
Committee, belies ids claim that he is a mere consultant for the LWUA.
The evidence on record clearly shows that, the LWUA Office
Order.implementing National Compensation Circular No. 75-95^[16] refers to payments of honoraria to officials/employees in consideration of sendees rendered.

Most telling, in our view, is respondent’s acceptance of his 1998
Productivity Incentive Bonus (PIB), The Board of Trustees Resolution No.
26, Series of 1999, of the LWUA^[17]
which governed the release of the PIB, limited the entitlement to said
bonus only to “officials” and “employees” (permanent, temporary, casual,
or contractual) of LWUA.

In sum, we find that for all intents and purposes, respondent
performed duties and functions of a non-advisory nature, which pertain
to a contractual employee of LWUA. As stated by petitioner in Ms reply,^[18]
there is a difference between a consultant hired on a contractual basis
(which is governed by CSC M.C. No. 27, s. 1993) and a contractual
employee (whose appointment is governed, among others, by the CSC
Omnibus Rules on Appointment and other Personnel Actions). By performing
duties and functions, which clearly pertain to a contractual employee,
albeit in the guise of an advisor or consultant, respondent has
transgressed both letter and spirit of tins Court’s decree in Atienza.

The lawyer’s primary duty as enumerated in the Attorney’s Oath is
to uphold the Constitution, obey the laws of the land, and promote
respect for law and legal processes.^[19]
The duty in its irreducible minimum entails obedience to the legal
orders of the courts. Respondent’s disobedience to this Court’s order
prohibiting his reappointment to any branch, instrumentality, or agency
of the government, including government owned and controlled
corporation, cannot be camouflaged by a legal consultancy or a special
consultancy contract. By performing duties and functions of a
contractual employee of LWUA, by way of a consultancy, and receiving,
compensation and perquisites as such, he displayed acts of open defiance
of the Court’s authority, and a deliberate rejection of Ins oath as an
officer of the court. It is also destructive of the harmonious relations
that should prevail between Bench and Bar, a harmony necessary for the
proper administration of justice. Such defiance not only erodes respect
for the Court but also corrodes public confidence in the rule of law.

What aggravates respondent’s offense is the fact that respondent is
no ordinary lawyer. Having served in the judiciary for eight (8) years,
he is very well aware, of the standards of moral fitness for membership
in the legal profession. His propensity to try to “get away” with an
indiscretion becomes apparent and inexcusable when he entered into a
legal “consultancy” contract with the LWUA. Perhaps realizing its own
mistake, LWUA terminated said contract, with respondent, but then
proceeded to give him a “special consultancy.” This travesty could not
be long hidden from public awareness, hence the instant complaint for
disbarment filed by petitioner. Given the factual circumstances found by
Commission on Bar Discipline, we have no hesitance in accepting the
recommendation of the Board of Governors, Integrated Bar of the
Philippines, that respondent be fined and suspended from the practice of
law. The Code of Professional Responsibility, Rule 1.01, provides that,
a lawyer shall not engage in unlawful, dishonest, immoral and deceitful
conduct. For violating the Code as well as transgressing his oath as an
officer of the court, his suspension for one (1) year and a fine of ten
thousand (P 10,008) pesos are in order.

WHEREFORE, respondent Atty. Francisco Brillantes,
Jr., is found liable for having willfully violated a lawful order of
this Court iu our decision of March 29, 1995 rendered in A.M. No.
MTJ-92-706, entitled Lupo Almodiel Aiimtza vs. Judge Pranicso F. Brillantes, Jr. He is hereby SUSPENDED from the practice of law for one (1) year and ordered to pay a FINE of Ten Thousand (P 10,000) Pesos, with a STERN WARNING that
a repetition of the same or similar conduct shall be dealt with more
severely. Let a copy of this Decision be furnished to the Bar Confidant
and the Integrated Bar of the Philippines and spread on the personal
records of respondent as well as circulated to all courts in the
Philippines. This decision is immediately executory.

Copy of this decision was received by respondent, on April 4, 2003

7 July 2003.

^[2] Supra, note 1 at 544

^[3] Rollo,pp. 2-3

^[4] Id at 13-17

^[5] Id’at 18-21

^[6] Id. a 22-26

^[8] Id. at 30-33

^[9] Id. at 34-35

^[10] Id. at 36-40

^[11] Id. a 2-5

^[12] Declaring a National
Policy Favoring Locsl Operation and Control of Warer System; Authoriang
the Formation of Local Water Districts and Providing for the Government
and Administration of Such Distncis; uiatenng a National Administration
to Facilitate Improvement of Local Water Utilities; Granting Said
Administratration Such Powers as are Necessary to Optimize Public
Service From Water utility operations; and for other Purposes

^[13] Rollo, pp:5-7

^[14] Rollo, p. 70 (Emphasis Supplied)

^[15] Advisory, according to Webster’s International Dictionary, 3rd ed, means having or exercising power to advise”

^[16] Id. at 84-89

^[17] Id. at 71-73

^[18] Id. at 77

^[19] See also Code of
professional Responsibility, Canon 1, “A lawyer shall uphold the
Constitution, obey the laws of the land, and promote respect for law and
legal processes.”