A.C. No. 10514. July 11, 2018
FIRST DIVISION [ A.C. No. 10514, July 11, 2018 ] SPO4 EFREN M. MISAMEN V. ATTYS. MENACHEM T. CARPIO, ADELAINE FAITH P. ZERNA AND JOHN CHRISTOPHERSON A. LEI.The instant administrative case stemmed from the Complaint[1] dated July 7, 2014 of complainant Efren M. Misamen (Misamen), charging Atty. Menachem T. Carpio (Atty. Carpio), Atty. Adelaine Faith P. Zerna, and Atty. John Christopherson A. Lei (Atty. Lei) (collectively, the respondents) for violation of the Code of Professional Responsibility (CPR) and the Lawyer's Oath.
Misamen, as the Chief Investigator of Buhangin Police Station, Davao City Police Office, brought the instant administrative complaint in behalf of his co-policemen, namely: Police Superintendent Ruben Dela Rama Ramos - Station Commander (PSupt. Ramos), Police Inspector Pacito Canete, Jr. - Station Supervisor, Senior Police Officer 4 Joseph Limbaco - Chief Intel PNCO (SPO4 Limbaco), SPO3 Cesar Aaron Robles - Assistant Chief Investigator, SPO1 Abelardo Manubag - Investigator, SPO1 Jofree Lontiong - Team Leader, PO3 Peter John De Cadez, PO3 Lester Casonete, and PO3 Ian Fernandez (co-policemen), against respondents herein.[2]
In his Complaint, Misamen narrated that in the morning of August 9, 2013, he and his co-policemen were tasked by PSupt. Ramos to respond for police assistance and investigate the criminal complaint for grave coercion lodged by spouses Peter and Rosie Tan (spouses Tan) against the security guard later known as Enrique C. Mores, Jr. (Mores, Jr.), and Eli Lui (Lui), the subdivision developer of Green Heights Subdivision (subdivision) located at Buhangin Diversion Road, Davao City. In the police investigation, Lui refused to allow spouses Tan to enter Lot 5 Block 2, Phase II of the subdivision, the title of which is registered in the latter's names. Upon likewise being denied entry to the subdivision, Misamen and his co-policemen arrested Mores, Jr. and charged him for Grave Coercion. Mores, Jr. countered by filing a complaint for Unlawful Arrest, Grave Coercion and Illegal Detention against Misamen and his co-policemen.[3] Both cases filed by Mores, Jr. and Misamen were dismissed for insufficiency of evidence, among others, by the City Prosecution Office in its Joint Resolution[4] dated November 19, 2013.
In September 2013, Mores, Jr. filed an Affidavit-Complaint[5] for Grave Misconduct, Abuse of Authority, and Conduct Unbecoming of a Police Officer against Misamen and his co-policemen before the Office of the Ombudsman docketed as OMB-P-A-13-083 8.[6]
On November 8, 2013, Lui and Mores, Jr. filed their respective administrative complaints[7] against Misamen and co-policemen before the People's Law Enforcement Board (PLEB), Davao City, docketed as Administrative Cases Nos. D2-009-13 and D2-008-13, and arising from the same incident.[8]Respondents herein are partners of the CZL Law Firm, the alleged counsel of record of Lui and Mores, Jr. in the said administrative cases before the PLEB. Misamen alleges that respondents were fully aware of Mores, Jr.'s previous filing of administrative cases before the Ombudsman as evidenced by the Verification and Certification of Non-Forum Shopping executed by Mores, Jr., annexed to his administrative complaint before the PLEB, wherein he expressly admitted such fact of his previous filing.[9]
Misamen further narrated that on November 29, 2013, respondents again assisted both Lui and Mores, Jr. in filing exactly the same set of administrative cases before the Commission on Human Rights (CHR) Regional Office XI, Davao City, both arising from the same incident which is the subject of the pending cases before the Ombudsman and the PLEB.[10]
The instant administrative complaint before Us hinges on the alleged deliberate filing of multiple administrative suits in different administrative disciplinary authorities against him and his co-policemen. Misamen posits that the said act constitutes a violation of Section 52(d) of Republic Act No. 8551,[11] also known as the Philippine National Police Reform and Reorganization Act of 1998, which provides that:
Section 52. Section 41 of Republic Act No. 6975 is hereby amended to read as follows:Misamen thus alleges that respondents engaged in forum shopping and violated their lawyer's oath, as well as the CPR, specifically Rule 12.02 of Canon 12, Rule 10.03 of Canon 10, and Rule 1.02 of Canon 1 thereof.
xxxx
(d) Forum shopping of multiple filing of complaints. -When an administrative complaint is filed with a police disciplinary authority, such as the People's Law Enforcement Board (PLEB), no other case involving the same cause of action shall be filed with any other disciplinary authority.
In their Joint Comment,[12] respondents maintain that they did not file nor cause the filing of two or more complaints against Misamen before the Ombudsman, the PLEB or any police disciplinary authority or quasi-judicial agency. They claim that the institution of the PLEB cases against Misamen was the personal and individual acts of Lui and Mores, Jr. Atty. Carpio and Atty. Lei, merely subscribed, respectively, the complaints and accompanying verification and certification of non-forum shopping in the PLEB cases. The said act of subscribing or administering oath does not automatically make respondents the representatives or counsels on record at the time of the filing of the complaints before the PLEB. Thus, respondents claim that they are not accountable for causing the alleged institution of multiple and repetitive suits against the complainant.
Respondents further argue that Lui and Mores, Jr. may file a complaint before the CHR notwithstanding the filing of administrative cases before the PLEB and the Ombudsman without violating the rule on forum shopping. To support their argument, they cited Section 5,[13] Rule 3 of the 2012 Omnibus Rules of Procedure of the Commission on Human Rights and the court's ruling in the case of Yumol, Jr. v, Atty. Ferrer, Sr.,[14] as to the nature of the CHR's power to investigate.
In his Reply,[15] Misamen countered that regardless of the nature of respondents' participation in the act of filing the complaints, knowledge on the existence of cases pending with other forums should serve as caveat for the respondents' legal actions on the matter. Moreover, Misamen attached to his Reply the Order[16] dated September 15, 2014 of the PLEB dismissing the case on the ground of forum-shopping. Notably, the PLEB mentioned that respondents are the counsels of Lui and Mores, Jr., to wit.
Complainant Mores and Lui were represented by the same counsel/s in all of the cases filed before the different bodies, prudence would have dictated that resorting to forum shopping would eventually divest other administrative bodies of jurisdiction. Such deliberate act of filing cases before different forums is a clear violation of the prohibition against forum shopping, xxx.[17] (Emphasis ours)In a Report[18] dated August 18, 2017, the Office of the Bar Confidant recommended that the Court may resolve the merit of the case. Thus, the Court will now act on the resolution of the complaint.
The charges against respondents hinge on their involvement in the alleged act of forum shopping which violates Rules 12.02, 10.03, and 1.02 of the CPR:
Rule 12.02 - A lawyer shall not file multiple actions arising from the same cause.Time and again, the Court did not hesitate in disciplining members of the Bar who are guilty of forum shopping. In In Re: A.M. No. 04-7-373-RTC [Report on the Judicial Audit Conducted in the RTC, Br. 60, Bar Hi, CebuJ, et al.,[19] the Court administratively held a lawyer liable for filing two separate petitions for annulment of her marriage in two different courts, and meted the penalty of suspension from the practice of law for six (6) months. The same penalty was meted in the case of Olivares and/or Olivares Realty Corp. v. Atty. Villalon, Jr.,[20] where the respondent lawyer, as counsel, repeatedly sued the complainant for the same cause of action and subject matter.
Rule 10.03 - A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice.
Rule 1.02 - A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system.
Notably, in the aforecited cases and other cases decided by the Court, the erring lawyer is either the party or the counsel on record of the party who committed forum shopping. In the case at bar, respondents deny accountability for the alleged acts of forum shopping on the ground that they were not acting as counsels of Lui and Mores, Jr. during the institution of the actions before the PLEB. At most, they claim that they acted as notaries public who subscribed and administered oath to their complaints.
Respondents' claim were clearly belied by the documentary evidence presented before Us. The PLEB's Orders dated January 18, 2014,[21] March 1, 2014,[22] April 5, 2014,[23] June 7, 2014,[24] as well as the Joint Order[25] dated June 14, 2014, and Subpoena[26] dated July 9, 2014, clearly showed that copies thereof were furnished to the respondents as counsels of Lui and Mores, Jr.. More importantly, respondents signed, as counsels, Lui and Mores, Jr.'s Comment/Opposition to the Motion to Dismiss on the Ground of Forum Shopping[27] dated April 1, 2014 filed before the PLEB. Finally, the PLEB's Order[28] dated September 15, 2014 dismissing the complaint on the ground of forum shopping even specifically mentioned respondents as the same counsels of Lui and Mores, Jr. in "all cases filed before the different bodies." Such fact was not specifically denied by the respondents as their defense dwelled on their alleged lack of direct participation on the particular act of filing or instituting the action.
We do not deny that the filing of the complaints before the CHR does not constitute forum shopping. As held by this Court in a plethora of cases, the CHR is not a court of justice nor a quasi-judicial body.[29] As such, it may conduct investigation independent of the pendency of cases before other forums. However, the Court agrees with the PLEB that the filing of the cases before it constitutes forum shopping. Relevant portions of PLEB's ruling are quoted and adopted by the Court, as follows:
All of the requisites of litis pendentia are present.As to the extent of respondents' participation in the act of filing multiple suits before different bodies, the Court differs with the PLEB's finding. Although the rule is that factual findings of administrative bodies are given great weight,[31] the PLEB's finding that respondents acted as counsels of Lui and Mores, Jr. in all the cases filed with different bodies is not supported by evidence. Such finding was not even necessary in arriving at PLEB's ruling on whether forum-shopping was committed.
The first element, identity of parties, or at least representing the same interest in both actions, exists. A substantial identity of parties is enough to qualify under the first requisite, x x x
x x x x
The second element, identity of rights asserted and reliefs prayed for, the reliefs being founded on the same facts, is also present. The complaint filed before the Office of the Ombudsman was for Grave Misconduct, Abuse of Authority and Conduct Prejudicial to the Best Interest of the Service while that filed before this Board were for Grave Misconduct, Abuse of Authority and Conduct Unbecoming of Men in Uniform. A careful examination of the complaints filed, reveals that it would pertain to the same set of facts relating to one and the same incident. The filing of the different cases before the OMB, PLEB and CHR were all prompted by the same factual antecedents.
Indeed, the true test in determining the identity of causes of action lies not in the form or nature of the actions but rather in the evidence that would be presented.
xxx x
The third element, that the identity of the two cases should be such that the judgment that may be rendered in one would, regardless of which party is successful, amount to res judicata in the other, is clear and undeniable. The evil sought to be prevented by the prohibition on forum shopping, i.e., the possibility of conflicting decisions is definite considering that the cases have originated from the same incident and consequently any administrative sanctions rendered in one disciplinary body would certainly be binding upon other disciplinary bodies.
Correlatively, Section 4 of Rule II of M.C. No. 2007-001 specifically provides that:
"Violation of the prohibition against forum shopping shall be a ground for the dismissal of the case motu proprio or upon motion of the respondent."Complainant Mores and Lui were represented by the same counsel/s in all of the cases filed before the different bodies, prudence would have dictated that resorting to forum shopping would eventually divests other administrative bodies of jurisdiction. Such deliberate act of filing cases before different forums is a clear violation of the prohibition against forum shopping. In filing administrative cases which falls under the concurrent jurisdiction of a number of disciplinary agencies, a cautious, judicious and a circumspect approach must be observed in order that the legal remedies available may not be smeared upon in an attempt to seek favorable ruling or judgment.
Applicability of the Principle of Exclusivity
Section 2 of Rule II of M.C. No. 2007-001 is clear and unequivocal on the Principle of Exclusivity:
x x x xThe prior filing of a case before the Office of the Ombudsman divests this Board of any authority to hear and try the case. From the moment the complaint was filed before the Office of the Ombudsman, all other disciplinary bodies and/or agencies are hereby excluded from trying the case.
When a complaint or charge is filed against a PNP member, it shall be heard and decided exclusively by the disciplinary authority which first acquired original jurisdiction over the case.
x x x x
Jurisdiction, once acquired, is not lost upon the instance of the parties but continues until the case is terminated. When herein complainant/s first filed the complaint in the Ombudsman, jurisdiction was already vested on the latter. Jurisdiction was first acquired by the Office of the Ombudsman stripping all other disciplinary bodies including this Board of any jurisdiction over the case.[30]
As far as the Court is concerned, the only fact supported by the records and other documentary evidence is that respondents started to represent Lui and Mores, Jr. before the PLEB on January 18, 2014 onwards as evidenced by the PLEB's Order[32] on the said date and all its subsequent Orders.[33] A perusal of the attached records of the case before the Ombudsman also does not indicate any participation of the respondents in the proceedings before the Ombudsman.
Nonetheless, the respondents' act of representing Lui and Mores, Jr. before the PLEB, albeit belatedly, is subject to the Court's disciplinary action.
Canon 1 of the CPR requires that a lawyer shall obey the laws of the land and promote respect for law and legal processes. Respondents specifically violated Rule 1.02 of the said Canon, which prohibits lawyers from counselling or abetting activities aimed at defiance of the law. As aptly held by the PLEB, jurisdiction was already acquired by the Ombudsman, which exercises concurrent jurisdiction over the said administrative case with the PLEB. Respondents, having been informed of the pendency of the administrative case before the Ombudsman through the Verification and Certification of Non-Forum Shopping attached to the complaints before the PLEB, should have advised Lui and Mores, Jr. not to proceed with the cases before the PLEB as the same would clearly violate the rule on forum shopping.
Considering, however, that this is the first infraction of respondents, having been admitted to the Bar roughly a year before the filing of the instant administrative case, We find the penalty of disbarment too harsh. "[T]he power to disbar must be exercised with great caution, and may be imposed only in a clear case of misconduct that seriously affects the standing and character of the lawyer as an officer of the Court and a member of the bar."[34] Disbarment should never be decreed where a lesser penalty would accomplish the end desired.[35]
Under Standard 9.3 of the Integrated Bar of the Philippines-Commission on Bar Discipline's Guidelines for Imposing Lawyer Sanctions, the absence of a prior disciplinary record is considered a mitigating factor to be considered in imposing sanctions. Moreover, unlike in other administrative cases involving the act of forum shopping wherein harsher penalties were imposed by the Court, herein respondents' participation in the proceedings before the Ombudsman as well as the filing of the cases before the PLEB was not clearly established by substantial evidence. In view of the foregoing factors, We find that the penalty of reprimand will suffice.
ACCORDINGLY, the Court find respondents Arty. Menachem T. Carpio, Atty. Adelaine Faith P. Zerna, and Atty. John Christopherson A. Lei GUILTY of violating Rule 1.02 of the Code of Professional Responsibility, for which they are REPRIMANDED, with a STERN WARNING that a repetition of the same or similar act shall be dealt with more severely.
SO ORDERED. Leonardo-De Castro, J., designated as Acting Chairperson of the First Division per Special Order No. 2559 dated May 11, 2018; Gesmundo, J., designated as Acting Member of the First Division per Special Order No. 2560 dated May 11, 2018.
[1] Rollo, pp. 2-8.
[2] Id. at 2.
[3] Id. at 3.
[4] Id. at 12-15.
[5] Id. at 21-22.
[6] Id. at 3.
[7] Id. at 23-32.
[8] Id. at 4.
[9] Id.
[10] Id. at 44.
[11] AN ACT PROVIDING FOR THE REFORM AND REORGANIZATION OF THE PHILIPPINE NATIONAL POLICE AND FOR OTHER PURPOSES, AMENDING CERTAIN PROVISIONS OF REPUBLIC ACT NUMBERED SIXTY-NINE HUNDRED AND SEVENTY- FIVE ENTITLED, "AN ACT ESTABLISHING THE PHILIPPINE NATIONAL POLICE UNDER A RE-ORGANIZED DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, AND FOR OTHER PURPOSES." Approved on February 25, 1998.
[12] Id. at 85-100.
[13] Rule 3. INVESTIGATION AND MONITORING POWERS AND FUNCTIONS.
Sec. 5. Non-Applicability of the Rule on Forum-Shopping. - The rule on forum shopping does not apply in CHR investigations. The CHR has the authority to investigate human rights violations and abuses notwithstanding cases filed/pending in court involving the same subject matter/issues between the same parties, as the Commission's investigation is concerned with the human rights dimension of the case.
[14] 496 Phil. 363 (2005).
[15] Rollo, pp. 118-122.
[16] Id. at 123-129.
[17] Id. at 128.
[18] Id. at 134.
[19] 788 Phil. 492(2016).
[20] 549 Phil. 528 (2007).
[21] Rollo, p. 107.
[22] Id. at 108.
[23] Id. at 109.
[24] Id. at 110.
[25] Id. at 111-112.
[26] Id. at 113.
[27] Id. at 48-55.
[28] Id. at 123-129.
[29] Cudia, et al. v. The Superintendent of the Philippine Military Academy, et al, 754 Phil. 590,703(2015).
[30] Rollo, pp. 125-128.
[31] E. Y. Industrial Sales, Inc., et al. v. Shen Dar Electricity and Machinery Co., Ltd., 648 Phil. 572, 586(2010).
[32] Rollo, p. 107.
[33] Id. at 108-113, 123-129.
[34] San Juan v. Venida, A.C. No. 11317, August 23, 2016, 801 SCRA268,276.
[35] Montano v. IBP, 410 Phil. 201, 209 (2001).
