Lawyer's sexy photos on FB, NOT immoral; electronic evidence in disbarment cases


In this Complaint[1] for disbarment, complainant charged respondent Atty. Marissa V. Manalo of gross immoral conduct for having an alleged illicit affair with complainant's husband, Ernie S. Yabut (Ernie) and for posting allegedly indecent pictures on her social media account on "Friendster".

According to complainant, respondent and Ernie started their relationship in June 2008, by sending electronic mails (e-mails) to each other as Ernie was based in the United States of America (USA) while respondent was a local television anchor in the Philippines.[2] Despite knowing Ernie's subsisting marriage with complainant, complainant alleged that respondent and Ernie continued their relationship and met in person in January 2009. After such personal encounter, respondent allegedly asked Ernie to do something about his marriage with complainant, and finally gave him an ultimatum.[3]

Complainant alleged that sometime in January 2011, respondent went to the USA and met with Ernie. Such encounter was seen by one of complainant's friends.[4]

In April 2011, complainant claimed that Ernie left complainant and their son, stopped supporting them, and went to the Philippines to live with respondent.[5]

To support her allegation of an illicit relationship between respondent and Ernie, complainant submitted in evidence the transcripts of e-mail exchanges between respondent and Ernie.[6]

Complainant also questioned the respondent's conduct of being a member of the bar when she posted several allegedly indecent pictures on her social media account, "Friendster".[7]

For her part, respondent denied the accusations against her and countered that complainant did not provide sufficient proof to establish her allegedly gross immoral conduct. Moreover, as to the indecent pictures, respondent averred that unconventional behavior is not immoral conduct which warrants disbarment.[8]

The Integrated Bar of the Philippines-Commission on Bar Discipline (IBP-CBD) dismissed the complaint for lack of merit. The IBP-CBD held, in its Report and Recommendation[9] dated July 6, 2013, that the evidence presented by complainant failed to meet the standards of the Rules on Electronic Evidence.[10]
The fallo thereof reads:

WHEREFORE, premises considered, it is respectfully recommended that the instant case be DISMISSED for lack of merit, with caution on Respondent to be more careful in her personal dealings in the future so as to not have any suspicion of impropriety.[11]
In a Resolution[12] dated October 10, 2014, the Integrated Bar of the Philippines- Board of Governors (IBP-BOG) approved and adopted the Report and Recommendation of the IBP-CBD and dismissed the complaint against respondent. The IBP- BOG disposed thus:
RESOLVED to ADOPT and APPROVE, as it is HEREBY ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner in the above-entitled case, herein made part of this Resolution as Annex "A", and finding the recommendation to be fully supported by the evidence on record and applicable laws, and considering that the Complaint lacks merit, the case against Respondent is hereby DISMISSED.[13]
We dismiss the instant complaint.

Disciplinary proceedings against lawyers are sui generis -neither purely civil nor purely criminal.[14] They do not involve a trial of an action or a suit, but rather investigations by the Court into the conduct of its officers. While these proceedings are sui generis, compliance with the basic rules on evidence may not be altogether dispensed with. More so in this case, when the evidence in consideration, i.e. the transcripts of the e-mail exchanges between respondent and Ernie, fails to comply with the basic rules on admissibility.

The e-mails between respondent and Ernie are considered electronic data messages described in A.M. No. 01-7-01-SC or the Rules on Electronic Evidence. An electronic data message refers to information generated, sent, received or stored by electronic, optical or similar means, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy.[15]

Further, the Rules on Electronic Evidence regard an electronic document as admissible in evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related laws, and is authenticated in the manner prescribed by the Rules on Electronic Evidence.[16]

Under the Rules of Court, "[ejvidence is admissible when it is relevant to the issue and is not excluded by law or [said] Rules".[17] One of the rules in admitting evidence and avoiding its exclusion is to comply with the rules on authentication.

The Rules of Court provides that authenticity and due execution of a private document, offered as authentic, must be proved before it is received in evidence.[18] However, in cases of electronic evidence, the manner in which such due execution and authenticity are to be proved is specifically stated under Rule 5, Section 2 of the Rules on Electronic Evidence which provides that "[b]efore any private electronic document[19] is offered as authentic is received in evidence, its authenticity must be proved by any of the following means:
(a) by evidence that it had been digitally signed by the person purported to have signed the same;
(b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or
(c) by other evidence showing its integrity and reliability to the satisfaction of the judge."
In this case, complainant merely presented in evidence the transcripts of the e-mails with no proof of authentication. Failure to comply with the above-mentioned proof of authentication, therefore, renders it inadmissible. Furthermore, We agree with the IBP-CBD that the integrity of the e-mails was put into doubt when complainant highlighted certain parts of the same for emphasis[20]. The act of being able to edit the texts of the e-mails, such as highlighting, underscoring, and using the bold style, to support the accusation of illicit relationship all the more reinforces the fact that these electronic documents may easily be tampered, manipulated, and edited.

The questionable integrity of the presented e-mail exchanges imperatively necessitates the application of the Rules on Evidence.

Apart from e-mail exchanges, complainant submitted in evidence several pictures of respondent and Ernie together. However, We find that such pictures do not categorically depict an illicit relationship as said pictures are equivocal.As to the indecent pictures, We do not find respondent's act of posting her pictures, portraying herself in a seductive manner, on her social media account as grossly immoral. While the kind of pictures which respondent posted do not exemplify and represent how a lawyer, who is an officer of the court, must properly behave in the eyes of the public, We are not inclined to rule that such act is grossly immoral.
Immoral conduct has been described as that conduct which is so willful, flagrant, or shameless as to show indifference to the opinion of good and respectable members of the community. To be the basis of disciplinary action, such conduct must not only be immoral, but grossly immoral. That is, it must be so corrupt as to virtually constitute a criminal act or so unprincipled as to be reprehensible to a high degree or committed under such scandalous or revolting circumstances as to shock the common sense of decency.[21]
We emphasize that "in disbarment proceedings, the burden of proof rests upon the complainant, and for the Court to exercise its disciplinary powers, the case against the respondent must be established by clear, convincing and satisfactory proof'.[22] In this case, the complainant failed to discharge the burden of proving that the actions of respondent would warrant the imposition of a penalty.

WHEREFORE, the complaint for disbarment against Atty. Marissa V. Manalo is DISMISSED. Let this case be considered CLOSED and TERMINATED.


SERENO, C.J., on leave; LEONARDO-DE CASTRO, J., on official leave.

 [1] Rollo, p. 18-30

[2] Id. at 20.

[3] Id. at 24.

[4] Id. at 26.

[5] Id. at 28.

[6] Id. 71-130.

[7] Id. 50-59.

[8] Id. at 503-515.

[9] Id. at 674-679.

[10] Id. at 677-678.

[11] Id. 679.

[12] Id. at 612.

[13] Id.

[14] Gonzales v. Atty. Alcaraz, 534 Phil. 471, 482 (2006), citing In Re Almacen, 142 Phil. 353, 390 (1970).

[15] Implementing Rules and Regulations of Section 6 (e), Republic Act No. 8792 or An Act Providing For The Recognition And Use Of Electronic Commercial And Non-Commercial Transactions And Documents, Penalties For Unlawful Use Thereof, And For Other Purposes.

[16] Rule 3 of the Rules on Electronic Evidence reads:

SECTION 1 .Electronic Documents as functional equivalent of paper-based documents. Whenever a rule of evidence refers to the term writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document as defined in these Rules.

SECTION. 2. Admissibility. An electronic document is admissible in evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by these Rules.

[17] Rule 128, Section 3.

[18] Rule 132, Section 20.

[19] Section l(h) of the Rules on Electronic Evidence provides that an "[electronic document refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored processed, retrieved or produced electronically. It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term 'electronic document' may be used interchangeably with electronic data message".

[20]Rollo, p. 679.

[21] Arnobit v. Atty. Arnobit, 590 Phil. 270, 276 (2008), citing Narag v. Atty. Narag, 353 Phil. 643, 655 (1998), emphasis omitted.

[22] Dalu Budencio Dumanlag v. Atty. Winston B. Jnlong, A.C. No. 8638, October 10, 2016.