TOMAS B. YUMOL, JR., FELIX S. VENTIC, ELMER L. MANIEGO AND JAKE M. MAGCALAS, COMPLAINANTS, VS. ATTY. ROBERTO R. FERRER, SR., RESPONDENT.

Yumol versus Ferrer

The Case

This is a complaint for disbarment filed by Atty. Tomas Yumol, Jr., Felix Ventic, Elmer Maniego, and Jake Magcalas against Atty. Roberto Ferrer, Sr., for grave misconduct. The complainants were employees of the Commission on Human Rights, and the respondent was an Attorney IV in the same Commission. The case matters because it fixes the outer limits of what a Commission on Human Rights lawyer may lawfully do: it cannot adjudicate, it cannot practice law without written authority and approved leave, and it cannot notarize before being authorized to do so. It is a compact review of the grounds for suspension under the Rules of Court and of the meaning of gross misconduct.

Procedural History

The complainants filed the disbarment complaint directly with the Supreme Court. The Court referred the case to the Integrated Bar of the Philippines for investigation, report, and recommendation. The respondent moved for and was granted an extension to file his answer, which he thereafter filed. After investigative hearings, IBP Investigating Commissioner Rebecca Villanueva-Maala submitted her report recommending that the respondent be suspended for two years from the practice of law. The IBP Board of Governors approved the recommendation but modified the penalty, suspending him for six months. The case then came before the Supreme Court, which rendered its own decision on the report and recommendation.

Facts

On 17 September 2001, Mrs. Ma. Cecilia Mallari-Dy sought the assistance of the Commission on Human Rights for the alleged kidnapping of her child, Jianzil Irish Dy, by her husband, John Burt Dy, and for his coercive act in transferring her account with the Porac Rural Bank. Acting on this, the respondent, a Senior Legal Officer of the Commission, issued two orders. The order dated 18 September 2001 awarded custody of the child to the mother, invoking the Family Code provision that children five years and below should remain under the custody of the mother, in relation to Section 18, Article XIII of the 1987 Constitution. The order dated 19 September 2001, finding the allegations sufficiently established, ordered the Rural Bank of Porac to reinstate the account of the mother.

On 28 September 2001, a heated altercation took place between the respondent and John Burt Dy, who accused the Commission of conniving with his wife and of destroying his reputation at the bank. Atty. Yumol, as Officer-in-Charge, asked Mr. Dy to substantiate his accusations, and Mr. Dy showed him the two orders signed by the respondent, which had already been enforced. Atty. Yumol wrote the bank manager advising that the Commission's participation was limited to legal guidance and that the order of 19 September 2001 should be disregarded. He then required the respondent to explain the unauthorized issuance of the orders within seventy-two hours.

Investigation revealed that the respondent was engaged in private practice, handling cases before courts and quasi-judicial bodies, and that he had notarized several documents. It also appeared that on the dates he attended court hearings, he declared in his Daily Time Records that he was present at the office. Criminal cases for falsification of public documents, usurpation of functions, and violation of Republic Act Number 6713 were filed against him, yet he continued attending hearings in different courts. In his defense, he invoked Commission resolutions allowing lawyers of the Commission to appear for underprivileged victims, and claimed that he had been commissioned as a notary public.

Issues

• Whether or not the respondent committed gross misconduct by engaging in the private practice of his profession while being a government employee.
• Whether or not the respondent falsified his Daily Time Records.
• Whether or not the respondent issued unauthorized orders.
• Whether or not the respondent continuously engaged in private practice even after the filing of the case against him.

Applicable Provisions

Section 27, Rule 138 of the Rules of Court provides:

SEC. 27. Disbarment or Suspension of Attorneys by Supreme Court; grounds therefore. A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a willful disobedience of any lawful order of a superior court, or for corruptly or willfully appearing as an attorney for a party to a case without authority so to do.

This is the provision under which the respondent was suspended, the Court holding that his acts constitute gross misconduct within its terms.

Commission on Human Rights Resolution Number A2002-133, which the respondent invoked, provides in part:

Lawyers employed in the Civil Service Commission, upon written request, may be authorized to practice their profession subject to the following conditions: It shall not entail any conflict of interest insofar as the functions of the Commission are concerned; It shall not be in representation of a client whose cause of action is against the government; It shall not involve the use of government funds or property; It shall not impair the lawyer's efficiency in the discharge of his regular functions in the office, and absences incurred, if any, shall be covered by duly approved vacation leaves and pass slips; It shall be subject to the provisions of RA No. 6713 and such other relevant Civil Service Laws and Rules; The lawyers can appear only in courts of law, offices of state prosecutors (Department of Justice), Office of the Ombudsman and quasi-judicial agencies decisions of which are rendered by presidential appointees; Authority is for one year subject to renewal after review of the lawyer's office performance; Provided, that, the commission reserves its right to revoke the said authority.

The Court used this resolution to show that private practice by Commission lawyers is not a matter of right but requires a written request, approval, and a duly approved leave of absence, none of which the respondent had.

Ruling

On the first issue, the Court held that private practice of law by Commission lawyers is not a matter of right. Although the Commission allows it, a written request and approval thereof, with a duly approved leave of absence, are indispensable. The record was bereft of any such written request or approved leave. On the notarization, the respondent applied for a notary commission before the Regional Trial Court of San Fernando, Pampanga, which was granted on 01 December 2000, but the Commission authorized him to act as notary public only on 29 October 2001. Since acts of notarization fall within the practice of law, the belated authority cannot retroact to documents notarized before it. The Court defined the practice of law as any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience.

On the second issue, the Court held that since the respondent was actually attending hearings in different courts, as shown by the minutes of hearings and orders, and was not authorized to do so, he falsified his Daily Time Records when he certified that he was at the office on the same days and time. He could not be at two different places at the same time.

On the third issue, the Court held that the Commission on Human Rights has merely the power to investigate and cannot try and decide cases as courts of justice or quasi-judicial bodies do. To investigate is not to adjudicate. The Commission therefore cannot and should not have resolved the matters involved in the two orders, which were clearly within the judicial and adjudicatory powers of a regular court.

On the fourth issue, the Court held that despite the cases filed against him, the respondent continued, without proper authority and approved leave of absence, to engage in private practice, as shown by certified true copies of minutes and orders of the different courts where he attended hearings.

On the penalty, the Court held 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, and that it will not disbar where a lesser penalty will suffice. Suspension is primarily intended not as a punishment, but as a means to protect the public and the legal profession.

Doctrine

A lawyer in the government service may engage in private practice only upon written request, approval by the agency, and a duly approved leave of absence; absent these, private practice is a violation. Notarization is within the ambit of the practice of law, and authority to notarize cannot be given retroactive effect. The Commission on Human Rights has the power to investigate but not to adjudicate; it cannot issue orders awarding custody of a child or directing a bank to reinstate an account. Falsifying Daily Time Records to make it appear that one was at the office while attending court hearings is falsification and gross misconduct. Gross misconduct is any inexcusable, shameful or flagrant unlawful conduct in the administration of justice prejudicial to the rights of the parties or to the right determination of the cause, generally motivated by a premeditated, obstinate or intentional purpose, though it need not imply corruption or criminal intent. Under Section 27, Rule 138 of the Rules of Court, a member of the bar may be suspended for gross misconduct in his office.

Disposition

The Court found Atty. Roberto Ferrer, Sr. guilty of gross misconduct and suspended him for one year from the practice of law, effective upon his receipt of the decision, with a warning that a repetition of the same or similar acts will be dealt with more severely.

Remember This

The single line worth memorizing: to investigate is not to adjudicate, and a government lawyer's private practice requires a written request, approval, and approved leave. Examiners use this case to test the limits of the Commission on Human Rights' powers and the requisites for private practice by government lawyers.