file:re 2003 bar examinations bm 1222 february 4, 2004 per cur.htm

Attorneys:
Disbarnment; Grave misconduct unbecoming a member of the Bar

 

EN BANC

[B.M. No. 1222.  February 4, 2004]

Re: 2003 BAR EXAMINATIONS

R E S O L U T I O N

PER CURIAM:

On 22 September 2003, the day following the bar
examination in Mercantile Law, Justice Jose C. Vitug, Chairman of the 2003 Bar Examinations Committee, was apprised of a rumored leakage in
the examination on the subject. After making his own inquiries, Justice Vitug
reported the matter to Chief Justice Hilario G. Davide, Jr.,
and to the other members of the Court, recommending that the bar
examination on the subject be nullified and that an investigation be conducted
forthwith. On 23 September 2003, the Court adopted the recommendation of
Justice Vitug, and resolved to nullify the examination in Mercantile Law and to
hold another examination on 04 October 2003 at eight o’clock in the evening
(being the earliest available time and date) at the De La Salle University,
Taft Avenue, Manila. The resolution was issued without prejudice to any action
that the Court would further take on the matter.

Following the issuance of the resolution, the Court received
numerous petitions and motions from the Philippine Association of Law Schools
and various other groups and persons, expressing agreement to the nullification
of the bar examinations in Mercantile Law but voicing strong
reservations against the holding of another examination on the subject. Several
reasons were advanced by petitioners or movants, among these reasons being the
physical, emotional and financial difficulties that would be encountered by the
examinees, if another examination on the subject were to be held anew.
Alternative proposals submitted to the Court included the spreading out of the
weight of Mercantile Law among the remaining seven bar
subjects, i.e., to determine and gauge the results of the examinations on the
basis only of the performance of the examinees in the seven bar
subjects. In a resolution, dated 29 September 2003, the Court, finding merit in
the submissions, resolved to cancel the
scheduled examination in Mercantile Law on 04 October 2003 and to allocate the
fifteen percentage points among the seven bar examination subjects. In the same
resolution, the Court further resolved to create a Committee composed of three
retired members of the Court that would conduct a thorough investigation of the
incident subject of the 23 September 2003 resolution.

In a resolution, dated 07 October 2003, the Court adopted the
computation in the allocation of the fifteen percentage points for Mercantile
Law among the remaining seven bar examination subjects, to
wit:

Subject            Original            Adjusted                      Relative           Adjusted

                        Percentage     Percentage                 Weight             Relative

                        Weight            
Weight                                                Weight

Political and

International

   Law              15%                 17.647%                          3                  3.53%

Labor and

   Social

Legislation       10%                 11.765%                          2                  2.35%

Civil law           15%                 17.647%                          3                  3.53%

Taxation          10%                 11.765%                          2                  2.35%

Criminal law    10%                 11.765%                          2                  2.35%

Remedial

Law                 20%                 23.529%                          4                  4.71%

Legal Ethics

and Practical                          

Exercises        5%                     5.882%                          1                  1.18%

                                       100%                                                  20%

In another resolution, dated 14 October 2003, the Court
designated the following retired Associate Justices of the Supreme Court to
compose the Investigating Committee:

Chairman:     Justice Carolina
C. Griño-Aquino

Members:     Justice Jose A.R.
Melo

Justice Vicente V.
Mendoza

The Investigating Committee was tasked to
determine and identify the source of leakage, the parties responsible therefor
or who might have benefited therefrom, recommend sanctions against all those
found to have been responsible for, or who would have benefited from, the
incident in question and to recommend measures to the Court to safeguard the
integrity of the bar examinations.

On 15 January 2004, the Investigating Committee submitted its
report and recommendation to the Court, herein reproduced in full; thus –

“In the morning of September 21, 2003, the third Sunday of the 2003
bar examinations, the examination in commercial law was held
in De la Salle University on Taft Avenue, Manila, the venue of the bar examinations since 1995. The next day, the newspapers
carried news of an alleged leakage in the said examination.[1]

“Upon hearing the news and making preliminary inquiries of his own,
Justice Jose C. Vitug, chairman of the 2003 Bar Examinations
Committee, reported the matter to the Chief Justice and
recommended that the examination in mercantile law be cancelled and that a
formal investigation of the leakage be undertaken.

“Acting on the report and recommendation of Justice Vitug, the
Court, in a resolution dated September 23, 2003, nullified the examination in
mercantile law and resolved to hold another examination in that subject on
Saturday, October 4, 2003 at eight o’clock in the evening (being the earliest
available time and date) at the same venue. However, because numerous
petitions, protests, and motions for reconsideration were filed against the
retaking of the examination in mercantile law, the Court cancelled the holding
of such examination. On the recommendation of the Office of the Bar
Confidant, the Court instead decided to allocate the fifteen (15) percentage
points for mercantile law among the seven (7) other bar
examination subjects (Resolution dated October 7, 2003).

“In a Resolution dated September 29, 2003, the Supreme Court
created an Investigating Committee composed of three (3) retired Members of the
Court to conduct an investigation of the leakage and to submit its findings and
recommendations on or before December 15, 2003.

“The Court designated the following retired Associate Justices of
the Supreme Court to compose the Committee:

Chairman:     Justice CAROLINA GRIÑO-AQUINO

Members:     Justice JOSE A. R. MELO

Justice VICENTE V. MENDOZA

“The Investigating Committee was directed to determine and identify
the source of the leakage, the parties responsible therefor and those who
benefited therefrom, and to recommend measures to safeguard the integrity of
the bar examinations.

“The investigation commenced on October 21, 2003 and continued up
to November 7, 2003. The following witnesses appeared and testified at the
investigation:

1.       Associate Justice Jose C. Vitug, chairman
of the 2003 Bar Examinations Committee;

2.       Atty. Marlo Magdoza-Malagar, law clerk in
the office of Justice Vitug

3.       Atty. Marcial O. T. Balgos, examiner in
mercantile law;

4.       Cheryl Palma, private secretary of Atty.
Balgos;

5.       Atty. Danilo De Guzman, assistant lawyer
in the firm of Balgos & Perez;

6.       Atty. Enrico G. Velasco, managing partner
of Balgos & Perez;

7.       Eduardo J. F. Abella, reviewer in
commercial law at the Lex Review Center;

8.       Silvestre T. Atienza, office manager of
Balgos & Perez;

9.       Reynita Villasis, private secretary of
Atty. De Guzman;

10.     Ronan Garvida, fraternity brother of Atty.
De Guzman;

11.     Ronald F. Collado, most illustrious brother
of the Beta Sigma Lambda Fraternity;

12.     Jovito M. Salonga, Asst. Division Chief of
Systems Development for Judicial Application, MlSO;

The Committee held
nine (9) meetings – six times to conduct the investigation and three times to
deliberate on its report.

“ASSOCIATE JUSTICE JOSE C. VITUG, chairman of the Bar
Examinations Committee, testified that on Monday morning, September 22, 2003,
the day after the Bar examination in mercantile or commercial
law, upon arriving in his office in the Supreme Court, his secretary,[2]
Rose Kawada, informed him that one of the law clerks, Atty. Marlo
Magdoza-Malagar, told her that a friend of hers named Ma. Cecilia
Delgado-Carbajosa, a bar examinee from Xavier University in
Cagayan de Oro City, who was staying at the Garden Plaza Hotel in Paco,
confided to her that something was wrong with the examination in mercantile
law, because previous to the examination, i.e., on Saturday afternoon,
the eve of the examination, she received a copy of the test questions in that
subject. She did not pay attention to the test questions because no answers
were provided, and she was hard-pressed to finish her review of that subject,
using other available bar review materials, of which there
were plenty coming from various bar review centers.

“However, upon perusing the questions after the examinations,
Cecilia noticed that many of them were the same questions that were asked in
the just-concluded-examination.

“Justice Vitug requested Marlo to invite her friend to his office
in the Supreme Court, but Carbajosa declined the invitation. So, Justice Vitug
suggested that Marlo and Rose invite Carbajosa to meet them at Robinson’s
Place, Ermita. She agreed to do that.

“Cecilia Carbajosa arrived at Robinson’s Place at the appointed
time and showed the test questions to Rose and Marlo. Rose obtained a xerox
copy of the leaked questions and compared them with the bar
questions in mercantile law. On the back of the pages, she wrote, in her own
hand, the differences she noted between the leaked questions and the bar examination questions.

“Rose and Marlo delivered the copy of the leaked questions to
Justice Vitug who compared them with the bar examination
questions in mercantile law. He found the leaked questions to be the exact same
questions which the examiner in mercantile law, Attorney Marcial O. T. Balgos,
had prepared and submitted to him as chairman of the Bar
Examinations Committee. However, not al of those questions were asked in the bar examination. According to Justice Vitug, only 75% of the
final bar questions were questions prepared by Atty. Balgos;
25% prepared by Justice Vitug himself, were included in the final bar examination. The questions prepared by Justice Vitug were
not among the leaked test questions.

“Apart from the published news stories about the leakage, Chief
Justice Hilario G. Davide, Jr. and Justice Vitug received, by telephone and
mail, reports of the leakage from Dean Mariano F. Magsalin, Jr. of the Arellano
Law Foundation (Exh. H) and a certain Dale Philip R. De los Reyes (Exh. B
-B-3), attaching copies of the leaked questions and the fax transmittal sheet
showing that the source of the questions was Danny De Guzman who faxed them to
Ronan Garvida on September 17, 2003, four days before the examination in
mercantile law on September 21, 2003 (Exh. B-1).

“ATTORNEY MARLO MAGDOZA-MALAGAR was subpoenaed by the Committee.
She identified the copy of the leaked questions that came from Cecilia
Carbajosa (Exh. A). She testified that, according to Carbajosa, the latter
received the test questions from one of her co-bar reviewees
staying, like her, at the Garden Plaza Hotel in Paco, and also enrolled in the
review classes at the Lex Review Center at the corner of P. Faura Street and Roxas
Boulevard, Ermita. She did not pay for the hand-out because the Lex Review
Center gives them away for free to its bar reviewees.

“ATTORNEY MARCIAL O. T. BALGOS, 71 years of age, senior partner in
the law firm of BALGOS AND PEREZ with offices in Rm. 1009 West Tektite Tower,
Exchange Road, Ortigas Center, Pasig City, testified that in November 2002,
Justice Jose C. Vitug, as chair of the Committee on the 2003 Bar
Examinations, invited him to be the examiner in commercial law. He accepted the
assignment and almost immediately began the preparation of test questions on
the subject. Using his personal computer in the law office, he prepared for
three consecutive days, three (3) sets of test questions which covered the
entire subject of Mercantile Law (pp. 3-5, tsn, Oct. 24, 2003). As he did not
know how to prepare the questionnaire in final form, he asked his private
secretary, Cheryl Palma, to format the questions (p. 13, tsn, Oct. 24,
2003).  And, as he did not know how to
print the questionnaire, he likewise asked Cheryl Palma to make a print-out
(Id., pp. 14-15). All of this was done inside his office with only him and his
secretary there. His secretary printed only one copy (Id., p. 15). He then
placed the printed copy of the test questions, consisting of three sets, in an
envelope which he sealed, and called up Justice Vitug to inform him that he was
bringing the questions to the latter’s office that afternoon. However, as
Justice Vitug was leaving his office shortly, he advised Atty. Balgos to give
the sealed envelope to his confidential assistant who had been instructed to
keep it. When Atty. Balgos arrived in the office of Justice Vitug, he was met
by Justice Vitug’s confidential assistant to whom he entrusted the sealed
envelope containing the test questions (pp. 19-26, tsn, Oct. 24, 2003).

“Atty. Balgos admitted that he does not know how to operate a
computer except to type on it. He does not know how to open and close his own
computer which has a password for that purpose. In fact, he did not know, as he
still does, the password. It is his secretary, Cheryl Palma, who opened and
closed his computer for him (p. 45, tsn, Oct. 24, 2003).

“Atty. Balgos testified
that he did not devise the password himself. It was Cheryl Palma who devised it
(Id., p. 71).

“His computer is
exclusively for his own use. It is located inside his room which is locked when
he is not in the office. He comes to the office every other day only.

“He thought that his computer was safely insulated from third
parties, and that he alone had access to it. He was surprised to discover, when
reports of the bar leakage broke out, that his computer was
in fact interconnected with the computers of his nine (9) assistant attorneys
(tsn, pp. 30,45). As a matter of fact, the employees – Jovito
M. Salonga and Benjamin R. Katly – of the Court’s Management Information
Systems Office (MISO) who, upon the request of Atty. Balgos, were directed by
the Investigating Committee to inspect the computer system in his office,
reported that there were 16, not 9, computers connected to each other via Local
Area Network (LAN) and one (1) stand-alone computer connected to the internet
(Exh. M). Atty. Balgos’ law partner, former Justice Secretary Hernando Perez,
also had a computer, but Perez took it away when he became the Secretary of
Justice.

“The nine (9) assistant attorneys with computers, connected to
Attorney Balgos’ computer, are:

1.       Zorayda Zosobrado
(she resigned in July 2003)

2.       Claravel Javier

3.       Rolynne Torio

4.       Mark Warner Rosal

5.       Charlynne Subia

6.       Danilo De Guzman
(resigned on October 22, 2003 [Exh. D])

7.       Enrico G. Velasco,
managing partner

8.       Concepcion De los Santos

9.       Pamela June Jalandoni

“Upon learning from Justice Vitug of the leakage of the bar questions prepared by him in mercantile law, Atty. Balgos
immediately called together and questioned his office staff. He interrogated
all of them except Atty. Danilo De Guzman who was absent then. All of them
professed to know nothing about the bar leakage.

“He questioned Silvestre Atienza, the office manager, Atienza is
only a second year law student at MLQU. But he is an expert in installing and
operating computers. It was he and/or his brother Gregorio who interconnected
the computers in the law office, including Attorney Balgos’ computer, without
the latter’s knowledge and permission.

“Atienza admitted to Attorney Balgos that he participated in the bar operations or ‘bar ops’ of the Beta Sigma
Lambda law fraternity of which he is a member, but he clarified that his
participation consisted only of bringing food to the MLQU bar
examinees (Tsn, pp. 46-47, Oct. 24, 2003).

“The next day, Attorney Balgos questioned Attorney Danilo De
Guzman, also a member of the Beta Sigma Lambda fraternity, FEU chapter. De
Guzman admitted to him that he downloaded the test questions from Attorney
Balgos’ computer and faxed a copy to a fraternity brother. Attorney Balgos was
convinced that De Guzman was the source of the leakage of his test questions in
mercantile law (Tsn, p. 52, Oct. 24, 2003).

“Attorney Balgos prepared a COMPARISON (Exh. E) of the juxtaposed
final bar questions and his proposed test questions, with
marginal markings made by Justice Vicente V. Mendoza (Ret.), indicating whether
the questions are similar: (S); or different: (D), together with the percentage
points corresponding to each question. On the basis of this comparative table
and Atty. Balgos’ indications as to which questions were the same or different
from those given in the final questionnaire, Justice Mendoza computed the
credit points contained in the proposed leaked questions. The proposed
questions constituted 82% of the final bar questions.
Attached to this Report as Annex A is the comparative table and the computation
of credit points marked as Exh. E-1.

“CHERYL PALMA, 34 years old, private secretary of Attorney Balgos
for the past six years, testified that she did not type the test questions. She
admitted, however, that it was she who formatted the questions and printed one
copy as directed by her employer. She confirmed Atty. Balgos’ testimony regarding
her participation in the operation of his personal computer. She disclosed that
what appears in Atty. Balgos’ computer can be seen in the neighborhood network
if the other computers are open and not in use; that Silvestre Atienza of the
accounting section, can access Atty. Balgos’ computer when the latter is open
and not in use.

“ATTORNEY ENRICO VELASCO, managing partner of the firm, testified
that on October 16, 2003, he sent De Guzman a memo (Exh. C) giving him ‘72 hours
to explain in writing why you should not be terminated for causing the Firm an
undeserved condemnation and dishonor because of the leakage aforesaid.’

“On October 22, 2003, De Guzman handed in his resignation
‘effective immediately.’ He explained that:

‘Causing the firm, its partners and members to suffer from
undeserved condemnation and humiliation is not only farthest from, but totally
out of, my mind. It is just unfortunate that the incident subject matter of your memorandum occurred. Rest
assured, though, that I have never been part of any deliberate scheme to malign
the good reputation and integrity of the firm, its partners and members.’ (Exh.
D)

“DANILO DE GUZMAN testified that he joined Balgos & Perez in
April 2000. He obtained his LLB degree from FEU in 1998. As a student, he was
an awardee for academic excellence. He passed the 1998 bar
examinations with a grade of 86.4%. In FEU, he joined the Beta Sigma Lambda law
fraternity which has chapters in MLQU, UE and MSU (Mindanao State University).
As a member of the fraternity, he was active during bar
examinations and participated in the fraternity’s ‘bar ops.’

“He testified that sometime in May 2003, when he was exploring
Atty. Balgos’ computer, (which he often did without the owner’s knowledge or
permission), to download materials which he thought might be useful to save for
future use, he found and downloaded the test questions in mercantile law
consisting of 12 pages. He allegedly thought they were quizzers for a book that
Atty. Balgos might be preparing. He saved them in his hard disk.

“He thought of faxing the test questions to one of his fraternity
‘brods,’ a certain Ronan Garvida who, De Guzman thought, was taking the 2003 bar examinations. Garvida is also a law graduate from FEU. He
had taken the 2002 bar examinations, but did not pass.

“On September 17, 2003, four days before the mercantile law bar examination, De Guzman faxed a copy of the 12-page-test
questions (Exhs. I, I-1, I-2, I-3) to Garvida because earlier he was informed
by Garvida that he was retaking the bar examinations. He
advised Garvida to share the questions with other ‘Betan’ examinees. He
allegedly did not charge anything for the test questions. Later, after the
examination was over, Garvida ‘texted’ (sent a text message on his cell phone)
him (De Guzman), that he did not take the bar examination.

“Besides Garvida, De Guzman faxed the mercantile law bar
questions to another fraternity brother named Arlan (surname unknown), through
Reynita (Nanette) Villasis, his secretary (Tsn, pp. 20-28, Oct. 29, 2003). But
he himself faxed the questions to still another ‘brod’ named Erwin Tan who had
helped him during the ‘bar ops’ in 1998 when he (De Guzman)
took the bar examinations (Id., p. 28). He obtained the cell
phone numbers of Arlan and Erwin Tan from Gabby Tanpiengco whom he informed by
text message, that they were ‘guide questions,’ not tips, in the mercantile law
examination.

“When he was confronted by Attorney Velasco on Wednesday after the
examination, (news of the leakage was already in all the newspapers), De Guzman
admitted to Attorney Velasco that he faxed the questions to his fraternity
brothers, but he did not reveal where he got the test questions.

“De Guzman received a text message from Erwin Tan acknowledging
that he received the test questions. However, Erwin informed him that the
questions were ‘kalat na kalat’ (all over the place) even if he did not share
them with others (Tsn, pp. 54-55, Oct. 29, 2003).

“De Guzman also contacted Garvida who informed him that he gave
copies of the test questions to Betans Randy Iñigo and James Bugain.

“Arlan also ‘texted’ De Guzman that almost all the questions were
asked in the examination. Erwin Tan commented that many of the leaked questions
were asked in the examination, ‘pero hindi exacto; mi binago’ (they were not
exactly the same; there were some changes).

“De Guzman tried to text Garvida, but he received no response.

“De Guzman disclosed that he learned how to operate a computer from
Silvestre Atienza, the office manager, and through self-study, by asking those
who are knowledgeable on computers. He has been using computers since 1997, and
he bought his own computer in 2001, a Pentium 3, which he uses at home.

“REYNITA VILLASIS, the 36-year-old legal secretary of Attorney De
Guzman, submitted her affidavit (Exh. F) and orally affirmed her participation
in the reproduction and transmittal by fax of the leaked test questions in
mercantile law to Ronan Garvida and Arlan, as testified by De Guzman.

“RONAN GARVIDA, appeared before the Investigating Committee in
compliance with the subpoena that was issued to him. Garvida graduated from FEU
College of Law in 2000. He is about 32 years of age. While still a student in
1998, he was afflicted with multiple sclerosis or MS, a disease of the nervous
system that attacks the nerve sheaths of the brain and spinal cord. It is a
chronic disabling disease although it may have periods of remission. It causes
its victim to walk with erratic, stiff and staggering gait; the hands and fingers
may tremble in performing simple actions; the eyesight can be impaired, and
speech may be slow and slurred (p. 737, Vol. 2, Reader’s Digest Medical
Encyclopedia, 1971 Ed., compiled by Benjamin F. Miller, M.D.). All these
symptoms were present when Garvida testified before the Committee on November
6, 2003 to answer its questions regarding his involvement in the leakage of the
examiner’s test questions in mercantile law.

“Garvida testified that when he was a freshman at FEU, he became a
member of the Beta Sigma Lambda fraternity where he met and was befriended by
Attorney De Guzman who was his senior by one and a half years. Although they
had been out of touch since he went home to the province on account of the
recurrence of his illness, De Guzman was able [to] get this cell phone number
from his compadre, Atty. Joseph Pajara. De Guzman told Garvida that he was
faxing him ‘possible questions in the bar examination in
mercantile law.’ Because the test questions had no answers, De Guzman stressed
that they were not ‘tips’ but only ‘possible test questions.’

“Garvida had intended to take the 2003 bar
examinations. He enrolled in the Consortium Review Center in FEU, paying
P10,000.00 as enrollment fee. However, on his way to the Supreme Court to file
his application to take the bar examination, he suffered
pains in his wrist – symptoms that his MS had recurred. His physician advised
him to go to the National Orthopedic Hospital in Quezon City for treatment.
This he did.

“He gave up his plan to take the 2003 bar examinations.
Nevertheless, he continued to attend the review classes at the Consortium
Review Center because he did not want to waste completely the
P10,000-enrollment fee that he paid for the review course (‘Nahihinayang ako’).
That was presumably why De Guzman thought that Garvida was taking the bar exams and sent him a
copy of the test questions in mercantile law.

“Upon receipt of the test questions, Garvida faxed a copy to his
‘brod’ Randy Iñigo who was reviewing at the Consortium Review Center. Randy photocopied
them for distribution to other fraternity brods. Some of the brods doubted the
usefulness of the test questions, but Randy who has a high regard for De
Guzman, believed that the questions were ‘tips.’ Garvida did not fax the
questions to any other person than Randy Iñigo. He allegedly did not sell the
questions to Randy. ‘I could not do that to a brod,’ he explained.

“In view of the fact that one of the copies of the leaked test
questions (Exh. H) bore on the left margin a rubber stamp composed of the Greek
initials ‘BEA-MLQU,’ indicating that the source of that copy was the Beta Sigma
Lambda chapter at MLQU, the Committee subpoenaed Ronald Collado, the Most
Illustrious Brother of the Beta Sigma Lambda fraternity of MLQU.

“RONALD COLLADO is a senior law student at the MLQU. He admitted
that his fraternity conducted ‘Bar Ops’ for the 2003 bar exams. Bar Ops are the biggest activity of
the fraternity every year. They start as soon as new officers of the fraternity
are elected in June, and they continue until the bar
examinations are over. The bar operations consist of
soliciting funds from alumni brods and friends to be spent in reproducing bar review materials for the use of their ‘barristers’ (bar candidates) in the various review centers, providing meals
for their ‘brod’-barristers on examination days; and to rent a ‘bar
site’ or place near De la Salle University where the examinees and the frat
members can convene and take their meals during the break time. The Betans’ bar site for the 2003 bar examinations was
located on Leon Guinto Street, Malate. On September 19 and 21, before [the]
start of the examination, Collado’s fraternity distributed bar
review materials for the mercantile law examination to the examinees who came
to the bar site. The test questions (Exh. H) were received by
Collado from a brod, Alan Guiapal, who had received them from Randy Iñigo.

“Collado caused 30 copies of the test questions to be printed with
the logo and initials of the fraternity (BEA-MLQU) for distribution to the 30 MLQU
examinees taking the bar exams. Because of time constraints,
frat members were unable to answer the test questions despite the clamor for
answers, so, they were given out ‘as is’ – without answers.

“DEAN EDUARDO J. F. ABELLA
of the Jose Rizal University law school in Mandaluyong City, was the
reviewer in Mercantile Law and Practical Exercises at the Lex Review Center
which is operated by the Lex Review & Seminars Inc., of which Dean Abella
is one of the incorporators. He learned about the leakage of test questions in
mercantile law when he was delivering the pre-week lecture on Legal Forms at
the Arellano University. The leaked questions were shown to him by his
secretary, Jenylyn Domingo, after the mercantile law exam. He missed the
Saturday lecture in mercantile law because he was suffering from a touch of
flu. He gave his last lecture on the subject on Wednesday or Thursday before
the exam. He denied having bought or obtained and distributed the leaked test
questions in Mercantile Law to the bar reviewees in the Lex
Review Center.

“F I N D I N G S

“The Committee finds that
the leaked test questions in Mercantile Law were the questions which the
examiner, Attorney Marcial O. T. Balgos, had prepared and submitted to Justice
Jose C. Vitug, as chairman of the 2003 Bar
Examinations Committee. The questions constituted 82% of the questions asked in
the examination in Mercantile Law in the morning of September 21, 2003, Sunday,
in some cases with slight changes which were not substantial and in other cases
exactly as proposed by Atty. Balgos. Hence, any bar examinee
who was able to get hold of the leaked questions before the mercantile law
examination and answered them correctly, would have been assured of passing the
examination with at least a grade of 82%!

“The circumstance that the leaked test questions consisted entirely
of test questions prepared by Atty. Balgos, proves conclusively that the
leakage originated from his office, not from the Office of Justice Vitug, the Bar Examinations Chairman.

“Atty. Balgos claimed that
the leaked test questions were prepared by him on his computer. Without any
doubt, the source of the leaked test questions was Atty. Balgos’
computer. The culprit who stole or downloaded them from Atty. Balgos’ computer
without the latter’s knowledge and consent, and who faxed them to other
persons, was Atty. Balgos’ legal assistant, Attorney Danilo De Guzman, who
voluntarily confessed the deed to the Investigating Committee. De Guzman
revealed that he faxed the test questions, with the help of his secretary
Reynita Villasis, to his fraternity ‘brods,’ namely, Ronan Garvida, Arlan
(whose surname he could not recall), and Erwin Tan.

“In turn, Ronan Garvida faxed the test questions to Betans Randy
Iñigo and James Bugain.

“Randy Iñigo passed a copy or copies of the same questions to
another Betan, Alan Guiapal, who gave a copy to the MLQU-Beta Sigma [Lambda’s]
Most Illustrious Brother, Ronald F. Collado, who ordered the printing and
distribution of 30 copies to the MLQU’s 30 bar candidates.

“Attorney Danilo De Guzman’s act of downloading Attorney Balgos’
test questions in mercantile law from the latter’s computer, without his
knowledge and permission, was a criminal act of larceny. It was theft of
intellectual property; the test questions were intellectual property of
Attorney Balgos, being the product of his intellect and legal knowledge.

“Besides theft, De Guzman also committed an unlawful infraction of
Attorney Balgos’ right to privacy of communication, and to security of his
papers and effects against unauthorized search and seizure – rights zealously
protected by the Bill of Rights of our Constitution (Sections 2 and 3, Article
III, 1987 Constitution).

“He transgressed the very first canon of the lawyers’ Code of
Professional Responsibility which provides that ‘[a] lawyer shall uphold the
Constitution, obey the laws of the land, and promote respect for law and legal
processes.’

“By transmitting and distributing the stolen test questions to some
members of the Beta Sigma Lambda Fraternity, possibly for pecuniary profit and
to given them undue advantage over the other examiners in the mercantile law
examination, De Guzman abetted cheating or dishonesty by his fraternity
brothers in the examination, which is violative of Rule 1.01 of Canon 1, as
well as Canon 7 of the Code of Professional Responsibility for members of the Bar, which provide:

Rule 1.01 – A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct

Canon 7 – A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND
DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR.

“De Guzman was guilty of grave misconduct unbecoming a member of
the Bar. He violated the law instead of promoting respect for
it and degraded the noble profession of law instead of upholding its dignity
and integrity. His actuations impaired public respect for the Court, and
damaged the integrity of the bar examinations as the final
measure of a law graduate’s academic preparedness to embark upon the practice of
law.

However, the Investigating Committee does not believe that De
Guzman was solely responsible for the leakage of Atty. Balgos’ proposed test
questions in the mercantile law examination. The Committee does not believe
that he acted alone, or did not have the assistance and cooperation of other
persons, such as:

“Cheryl Palma, Atty. Balgos’ private secretary, who, according to
Atty. Balgos himself, was the only person who knew the password, who could open
and close his computer; and who had the key to his office where his computer
was kept. Since a computer may not be accessed or downloaded unless it is
opened, someone must have opened Atty. Balgos’ computer in order for De Guzman
to retrieve the test questions stored therein.

“Silvestre Atienza, also a fraternity
‘brod’ of De Guzman, who was responsible for interconnecting Atty. Balgos’
computer with the other computers outside Atty. Balgos’ room or office, and who
was the only other person, besides Cheryl Palma, who knew the password of Atty.
Balgos’ computer.

“The following persons who received from De Guzman, and distributed
copies of the leaked test questions, appear to have conspired with him to steal
and profit from the sale of the test questions. They could not have been
motivated solely by a desire to help the fraternity, for the leakage was
widespread (‘kalat na kalat’) according to Erwin Tan. The possible
co-conspirators were:

Ronan Garvida,

Arlan,

Erwin
Tan,

Randy
Iñigo,

Ronald
Collado, and

Allan
Guiapal

“The Committee does not believe that De Guzman recklessly broke the
law and risked his job and future as a lawyer, out of love for the Beta Sigma
Lambda fraternity. There must have been an ulterior material consideration for
his breaking the law and tearing the shroud of secrecy that, he very well
knows, covers the bar examinations.

“On the other hand, the Committee finds that the theft of the test
questions from Atty. Balgos’ computer could have been avoided if Atty. Balgos
had exercised due diligence in safeguarding the secrecy of the test questions
which he prepared. As the computer is a powerful modern machine which he
admittedly is not fairly familiar with, he should not have trusted it to deep
secret the test questions that he stored in its hard disk. He admittedly did
not know the password of his computer. He relied on his secretary to use the
password to open and close his computer. He kept his computer in a room to
which other persons had access. Unfamiliar with the use of the machine whose
potential for mischief he could not have been totally unaware of, he should
have avoided its use for so sensitive an undertaking as typing the questions in
the bar examination. After all he knew how to use the
typewriter in the use of which he is quite proficient. Atty. Balgos should
therefore have prepared the test questions in his trusty typewriter, in the
privacy of his home, (instead of his law office), where they would have been
safe from the prying eyes of secretaries and assistant attorneys. Atty. Balgos’
negligence in the preparation and safekeeping of his proposed test questions
for the bar examination in mercantile law, was not the
proximate cause of the ‘bar leakage;’ it was, in fact, the
root cause. For, if he had taken those simple precautions to protect the
secrecy of his papers, nobody could have stolen them and copied and circulated
them. The integrity of the bar examinations would not have
been sullied by the scandal. He
admitted that ‘Mali siguro ako, but that was what happened’ (43 tsn, Oct. 24,
2003).

“R E C O M M E N D A T I O N

“This Honorable court in the case of Burbe v. Magulta, A.C. No.
5713, June 10, 2002, 383 SCRA 276, pronounced the following reminder for
lawyers: ‘Members of the bar must do nothing that may tend to
lessen in any degree the confidence of the public in the fidelity, the honesty
and integrity of the profession.’ In another case, it likewise intoned: ‘We
cannot overstress the duty of a lawyer to at all times uphold the integrity and
dignity of the legal profession. He can do this by faithfully performing his
duties to society, to the bar, to the courts, and to his
clients.’ (Reyes v. Javier, A.C. No. 5574, February 2, 2002, 375 SCRA 538). It
goes without saying that a lawyer who violates this precept of the profession
by committing a gross misconduct which dishonors and diminishes the public’s
respect for the legal profession, should be disciplined.

“After careful deliberation, the Investigating Committee recommends
that:

“1.     Attorney Danilo De
Guzman be DISBARRED for he had shown that he is morally unfit to continue as a
member of the legal profession, for grave dishonesty, lack of integrity, and
criminal behavior. In addition, he should make a written PUBLIC APOLOGY and pay
DAMAGES to the Supreme Court for involving it in another ‘bar
scandal,’ causing the cancellation of the mercantile law examination, and
wreaking havoc upon the image of this institution.

“2.     Attorney Marcial O. T. Balgos should be REPRIMANDED by the Court
and likewise be required to make a written APOLOGY to the Court for the public
scandal he brought upon it as a result of his negligence and lack of due care
in preparing and safeguarding his proposed test questions in mercantile law. As
the Court had to cancel the Mercantile Law examination on account of the
‘leakage’ of Attorney Balgos’ test questions, which comprised 82% of the bar questions in that
examination, Atty. Balgos is not entitled to receive any honorarium as examiner
for that subject.

“3.     FURTHER INVESTIGATION of Danilo De Guzman, Cheryl Palma,
Silvestre Atienza, Ronan Garvida, Arlan, Erwin Tan, Randy Iñigo, James Bugain,
Ronald Collado and Allan Guiapal by the National Bureau of Investigation and
the Philippine National Police, with a view to their criminal prosecution as
probable co-conspirators in the theft and leakage of the test questions in
mercantile law.

“With regard to
recommending measures to safeguard the integrity of the bar
examinations and prevent a repetition of future leakage in the said
examinations, inasmuch as this matter is at present under study
by the Court’s Committee on Legal Education and Bar Matters,
as an aspect of proposals for bar reforms, the Investigating
Committee believes it would be well-advised to refrain from including in this
report what may turn out to be duplicative, if not contrary, recommendations on
the matter.”[3]

The Court adopts the report, including with some modifications
the recommendation, of the Investigating Committee. The Court, certainly will
not countenance any act or conduct that can impair not only the integrity of
the Bar Examinations but the trust reposed on the Court.

The Court also takes note that Mr. Jovito M. Salonga and Mr.
Benjamin R. Katly, two of its employees assigned to the Management Information
Systems Office (MISO), who were tasked by the Investigating Committee to
inspect the computer system in the office of Atty. Balgos, found that the
Court’s Computer-Assisted Legal Research (CALR) database[4] was installed in the computer used by Atty.
Balgos. Mr. Salonga and Mr. Katly reported that the system, which was developed
by the MISO, was intended for the exclusive use of the Court. The installation
thereof to any external computer would be unauthorized without the permission
of the Court. Atty. Velasco informed the two Court employees that the CALR database
was installed by Atty. De Guzman on the computer being used by Atty. Balgos. The
matter would also
need further investigation to determine how Atty. De Guzman was able to obtain
a copy of the Court’s CALR database.

WHEREFORE, the Court, acting on the recommendations of the
Investigating Committee, hereby resolves to –

(1)            DISBAR Atty.
DANILO DE GUZMAN from the practice of law effective upon his receipt of this
RESOLUTION;

(2)            REPRIMAND
Atty. MARCIAL O.T. BALGOS and DISENTITLE him from receiving any honorarium as
an Examiner in Mercantile Law;

(3)            Direct the
National Bureau of Investigation (a) to undertake further investigation of
Danilo De Guzman, Cheryl Palma, Silvestre Atienza, Ronan Garvida, Erwin Tan,
Randy Iñigo, James Bugain, Ronald Collado and Allan Guiapal with a view to
determining their participation and respective accountabilities in the bar examination leakage and to
conduct an investigation on how Danilo De Guzman was able to secure a copy of
the Supreme Court’s CALR database.

Let a copy of this Resolution be made part of the records of
Danilo De Guzman in the Office of the Bar Confidant, Supreme
Court of the Philippines, and copies to be furnished the Integrated Bar of the Philippines and circulated by the Office of the
Court Administrator to all courts.

SO ORDERED.

Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing,
Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,
Carpio-Morales, and Callejo, Sr., JJ., concur.

Azcuna, J., on official leave.

Tinga, J., No part. Close to
family of one of the parties involved in bar scandal.