IN RE:  FLORENCIO MALLARE

In re Florencio Mallare

The Case

This is an administrative proceeding for disbarment, or more precisely for exclusion from the practice of law, brought against Florencio Mallare, a member of the Philippine bar admitted in 1962. The question at its heart is whether he was a Filipino citizen when he was admitted, and therefore whether he was ever lawfully entitled to practice law in the Philippines. The case matters to every Bar candidate because it shows the Supreme Court acting as guardian of the roll of attorneys: it may revoke a lawyer's admission for lack of citizenship, yet it will not strip a man of his profession without first giving him every chance to prove the truth.

Procedural History

The case began as an investigation by the Court's own Investigating Officer into Mallare's citizenship. On the evidence taken at that investigation, the Supreme Court rendered its original decision on April 29, 1968, declaring Mallare excluded from the practice of law, revoking his admission to the Philippine bar, and ordering him to return his lawyer's diploma. Several motions for reconsideration were denied. Mallare then filed a petition for reopening and new trial, grounded on the discovery of an entry in the Register of Baptisms of the Parish of the Immaculate Conception of Macalelon, Tayabas, now Quezon, and supported by affidavits. The Commissioner of Immigration opposed the petition, arguing that the evidence was not newly discovered but merely forgotten. The matter thus came before the Supreme Court again, not on appeal from a lower court, but as an incident in the very administrative case pending before it.

Facts

Florencio Mallare was admitted to the practice of law in 1962. In the investigation conducted by the Court, he was found not to be a Filipino citizen, and on April 29, 1968 the Court declared him excluded from the practice of law, revoked his admission, and ordered him to return his diploma. Copies of the decision were to be furnished to the Secretary of Justice and to the Local Civil Registrar of Macalelon, Quezon.

After his motions for reconsideration were denied, Mallare sought a reopening and new trial. He presented an entry in the Register of Baptisms of the Parish of the Immaculate Conception of Macalelon, bearing Number 5 at page 147, attesting that his late father, Esteban Mallare, was baptized as the natural son of Ana Mallare, described as an unmarried woman of the town, and an unknown father. If authentic, this entry would tend to support his claim that his father was a Filipino citizen, a citizenship that Mallare acquired by birth in the Philippines, his Chinese mother Te Na having followed her husband's nationality upon marriage.

He also submitted the affidavit of Damiana Cabañgon, who claimed to have been the midwife who attended Ana Mallare and who stated that Ana had no husband when she gave birth to Esteban. He submitted too the affidavit of his mother Te Na, who stated that she had erroneously registered her son Florencio as an alien in 1960. The Commissioner of Immigration opposed the reopening, insisting that the evidence was not newly discovered but forgotten.

Issues

• Whether or not the petition for reopening and new trial should be granted on the ground of newly discovered evidence bearing on the respondent's citizenship.
• Whether or not the respondent, as a duly admitted member of the bar, should be given ample opportunity to establish the true facts about his citizenship before being stripped of the privilege granted to him.

Applicable Provisions

The decision does not quote a statutory text; it rests on the Court's constitutional and inherent power over the admission and discipline of attorneys. The dispositive portion of the original decision, which the Court later set aside, read:

IN VIEW OF ALL THE FOREGOING, the respondent Florencio Mallare is hereby declared excluded from the practice of law; his admission to the Philippine bar is revoked and he is hereby ordered to return immediately to this Court the lawyer's diploma previously issued to him.

That order is the very ruling reopened by the present resolution, and it frames the stakes of the case.

Ruling

On the first issue, the Court resolved to set aside its decision of April 29, 1968 and to grant the reopening and new trial prayed for. It weighed the respondent's evidence, the baptismal entry and the supporting affidavits, against the Commissioner's objection that the proof was merely forgotten rather than newly discovered, and it chose to let the truth be ascertained rather than rest on the earlier record.

On the second issue, the Court held that a duly admitted member of the bar should be given ample opportunity to establish the true facts about his citizenship. It stressed that no effort should be spared to ascertain the truth before stripping him of the privilege granted to him since 1962, and before denying him the practice of his chosen profession, which, as far as the records show, he had honorably discharged. The new trial was to take place before the Court's Investigating Officer, with notice to Mallare, the Commissioner of Immigration, and the Solicitor General, all of whom could adduce additional evidence. The proofs taken at the original investigation were not to be retaken but considered part of the evidence in the new trial, after which the Court Investigator would submit his report.

Doctrine

First, the Supreme Court has the power to exclude from the practice of law one who was not a Filipino citizen at the time of admission, and to revoke that admission and order the return of the lawyer's diploma. Second, that power is exercised with caution: a lawyer facing exclusion is entitled to ample opportunity to establish the true facts about his citizenship, because the penalty deprives him of his chosen profession. Third, the Court will reopen its own decision and hold a new trial where newly presented evidence, such as a baptismal record and supporting affidavits, may establish citizenship, and the evidence already taken at the original investigation is carried over into the new trial rather than retaken.

Disposition

The Court set aside its decision of April 29, 1968 and granted Mallare's petition for reopening and new trial, to be conducted before the Court's Investigating Officer with notice to the respondent, the Commissioner of Immigration, and the Solicitor General.

Remember This

The single line to memorize: no effort should be spared to ascertain the truth before stripping a lawyer of the privilege of practice. Examiners use this case to test the Court's power over the roll of attorneys and the citizenship requirement for admission, and the rule that a lawyer must be given ample opportunity to prove his citizenship before exclusion.