J.A.B. Bulao & Associates

TIP 0011: THE ADMINSTRATIVE CASE OF JUDGE ADIONG.

SOURCE: NATIONAL POWER CORPORATION, REPRESENTED BY ITS PRESIDENT CYRIL DEL CALLAR VS.  JUDGE SANTOS B. ADIONG, RTC, BRANCH 8, MARAWI CITY (A.M. NO. RTJ-07-2060, 27 JULY 2011, VILLARAMA, J.) SUBJECT: ADMININSTRATIVE CASE AGAINST A JUDGE. (BRIEF TITLE: NPC VS. JUDGE ADIONG)

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IS THE CONDUCT OF PRE-TRIAL CONFERENCE MANDATORY?

YES. THE COURT IMPOSED THE PENALTY OF SUSPENSION ON A JUDGE WHO MERELY FAILED TO ISSUE A PRE-TRIAL ORDER WITHIN TEN (10) DAYS AFTER THE TERMINATION OF THE PRE-TRIAL CONFERENCE AS MANDATED BY PARAGRAPH 8,^[1][28] TITLE I (A) OF A.M. NO. 03-1-09-SC.

The mandatory character of pre-trial is embodied in Administrative Circular No. 3-99^[2][23] dated January 15, 1999, and found its way in Section 2,^[3][24] Rule 18 of the Rules of Court, which imposes a duty upon the plaintiff to promptly move ex parte that the case be set for pre-trial.  To further implement the pre-trial guidelines, this directive was reiterated in Administrative Matter No. 03-1-09-SC^[4][25] entitled “Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures” which recognized the importance of pre-trial and the deposition-discovery measures as vital components of case management in trial courts.^[5][26] 

To further show that the Court is serious in implementing the rules on pre-trial, in Alviola v. Avelino^[6][27] the Court imposed the penalty of suspension on a judge who merely failed to issue a pre-trial order within ten (10) days after the termination of the pre-trial conference as mandated by Paragraph 8,^[7][28] Title I (A) of A.M. No. 03-1-09-SC. 

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JUDGE ADIONG FAILED TO CONDUCT A PRE-TRIAL CONFERENCE. DOES  THIS FAILURE WARRANT ADMINISTRATIVE PENALTY?

YES. IT AMOUNTS TO GROSS IGNORANCE OF THE LAW AND THEREFORE WARRANTS A CORRESPONDING PENALTY.

Judge Adiong failed to conduct a pre-trial conference in Civil Case No. 1918-03 contrary to elementary rules of procedure which he should have known all too well considering his long years of service in the bench.  . . . . . . .

…………………………….

Here, respondent judge failed to conduct the pre-trial conference itself.  It is elementary and plain that the holding of such a pre-trial conference is mandatory and failure to do so is inexcusable. When the law or procedure is so elementary, such as the provisions of the Rules of Court, not to know it or to act as if one does not know it constitutes gross ignorance of the law.^[8][29]  Such ignorance of a basic rule in court procedure, as failing to conduct pre-trial, sadly amounts to gross ignorance and warrants a corresponding penalty. 

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JUDGE ADIONG GRANTED MOTIONS FOR EXECUTION PENDING APPEAL ON THE GROUND OF DIRE FINANCIAL CONDITIONS OF PLAINTIFF. DOES THIS GROUND CONSTITUTE GOOD REASON.

NO. THEY ARE UNREALIABLY WEAK AND FEEBLE.

As to the allegations of poor judgment and gross ignorance of basic legal principles in granting the motions for execution pending appeal for flimsy and unsupported reasons, we find that the particular reasons relied upon by respondent judge for issuing the writ of execution pending appeal are so unreliably weak and feeble that it highlights the lack of knowledge of respondent judge with regard to the proper appreciation of arguments.

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WHAT ARE GOOD REAONS FOR GRANTING MOTIONS FOR EXECUTION?

“GOOD REASONS,” IT HAS BEEN HELD, CONSIST OF COMPELLING CIRCUMSTANCES THAT JUSTIFY IMMEDIATE EXECUTION LEST THE JUDGMENT BECOMES ILLUSORY.

In Florendo v. Paramount Insurance Corp.,^[9][30] the Supreme Court held: 

            x x x “Good reasons,” it has been held, consist of compelling circumstances that justify immediate execution lest the judgment becomes illusory. The circumstances must be superior, outweighing the injury or damages that might result should the losing party secure a reversal of the judgment. Lesser reasons would make of execution pending appeal, instead of an instrument of solicitude and justice, a tool of oppression and inequity.

“Good reason” as required by Section 2, Rule 39 of the Rules of Court does not necessarily mean unassailable and flawless basis but at the very least, it must be on solid footing.   Dire financial conditions of the plaintiffs supported by mere self-serving statements as “good reason” for the issuance of a writ of execution pending appeal does not stand on solid footing.  It does not even stand on its own.

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WHAT ARE THE SANCTIONS FOR GROSS IGNORANCE OF THE LAW?

DISMISSAL, SUPENSION OR FINE.

Section 8, Rule 140 of the Rules of Court, as amended, classifies gross ignorance of the law as a serious charge and Section 11 thereof penalizes it with any of the following sanctions:

1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations. Provided, however, That the forfeiture of benefits shall in no case include accrued leave credits;

2. Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months; or

3. Afine of more than P20,000[.00] but not exceeding P40,000.00.^[10][31]

Considering, however, that in A.M. No. RTJ-04-1826, this Court has already dismissed Judge Adiong, the penalties of suspension from office without salary and dismissal from the service are no longer possible.  Hence, the penalty of fine is more appropriate.

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FIRST DIVISION

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DECISION

VILLARAMA, JR., J.:

Before us is an administrative complaint^[11][1] filed by the National Power Corporation (NPC) through its president Cyril C. Del Callar, charging respondent Judge Santos B. Adiong, Presiding Judge of the Regional Trial Court (RTC), Branch 8, Marawi City, with gross ignorance of the law, manifest partiality and conduct unbecoming a member of the Judiciary. 

The complaint arose in connection with the following cases:

1. Civil Case No. 1918-03 entitled “Ibrahim Abdo, et al. v. National Power Corporation” for Damages;

1. Civil Case No. 1322-95 entitled “Pacalna Sanggacala v. National Power Corporation” for Damages;

1. Civil Case No 1332-95 entitled “Ali Macaraya Mato v. National Power Corporation” for Damages;

1. Civil Case No. 1367-95 entitled “Camar Dipatuan v. National Power Corporation” for Damages;

1. Civil Case No. 1361-95 entitled “Casimra Sultan v. National Power Corporation” for Damages; and

1. Civil Case No. 1355-95 entitled “Mualam Dimatingcal v. National Power Corporation” for Damages.

In Civil Case No. 1918-03, plaintiffs Ibrahim Abdo, et al. who styled themselves as a “group of farmers, fishermen, laborers, workers, vendors, household members, and businessmen”, collectively sought to hold NPC liable for damages for operating seven Hydroelectric Power plants allegedly without due regard to the health and safety of the plaintiffs and other residents of Marawi City and the province of Lanao del Sur.  The plaintiffs alleged that they and several others suffered ecological and economic disasters brought about by the operation of regulatory dams which affected the natural flow of LakeLanaoand destroyed their farms, properties, businesses and sources of livelihood.  In addition to damages, the plaintiffs also sought the refund of millions of pesos from the Purchase Power Adjustment (PPA) collected by NPC from its electric consumers through the Lanao Del Sur Electric Cooperative.^[12][2]

On October 21, 2003, said plaintiffs filed an ex-parte Motion for the Release of P640,000,000 worth of PPA and other generation charges.  Judge Adiong granted the motion on November 9, 2004, but later set aside his order on November 24, 2005^[13][3] after NPC filed a motion for reconsideration on the ground of lack of notice and due process.  Judge Adiong then required the parties to present their respective evidence onDecember 8, 2005. 

Subsequently, Judge Adiong issued a Resolution on February 28, 2006, ordering NPC to refund the amount of P114,000,000, representing the Fuel Compensating Cost, Foreign Exchange, and Incremental Cost Charges collected from April 1991 to December 1995; to refund the amount of P176,000,000, representing the Fuel and Power Cost Adjustment and PPA collected from January 1996 to April 2003; and to pay the amount of P97,537,000 as attorney’s fees.^[14][4] 

NPC sought reconsideration of the order alleging that no pre-trial was conducted and yet respondent judge already passed upon the merits of the case.  NPC’s motion, however, was denied by Judge Adiong.  Judge Adiong reasoned that before issuing the questioned resolution, full-blown hearings were conducted and NPC was afforded all the opportunities to present its evidence and to participate actively in the hearings.  Having done so, NPC has submitted itself to the court’s jurisdiction and could no longer claim that no pre-trial was conducted.  Later, Judge Adiong also directed Sheriff Otto Gomampong to implement the February 28, 2006 Resolution ratiocinating that the same has already become final.^[15][5] 

Thus, NPC filed the present administrative complaint, asserting that the issuance of the February 28, 2006 Resolution is contrary to and violative of the Rules of Court because said resolution was issued by respondent judge without first conducting the requisite pre-trial conference and despite the fact that no formal offer of exhibits was made by plaintiffs in support of their allegations.  Also, NPC complains of respondent judge’s failure to lay down the basis for granting the plaintiff’s ex-parte motion to release the PPA refunds, and in awarding the exorbitant amount of P97,537,000.00 as attorney’s fees.^[16][6]

NPC further states that while it admits that judges are not to be administratively charged for acts committed in the exercise of their judicial functions, respondent judge had acted in violation of elementary rules that was equivalent to intolerable and inexcusable gross ignorance of the law.

As regards Civil Case Nos. 1322-95, 1332-95, 1367-95, 1361-95, and 1355-95, said cases involve identical causes of action arising from the same facts and raising common issues.  The plaintiffs in said cases sought to hold NPC liable for damages for its refusal to open the Agus regulation dams causing perennial flooding on their rice farmlands in 1979, 1984, 1986, 1989, 1993, 1994, 1995 and 1996.  In all of these cases, respondent judge rendered judgments in favor of the plaintiffs.  Later, respondent judge also issued Joint Special Order^[17][7] dated January 25, 2006 granting the Joint Motion for the Issuance of the Writ of Execution Pending Appeal^[18][8] filed by the plaintiffs in Civil Case Nos. 1367-95, 1361-95, and 1355-95 on January 2, 2006.^[19][9] 

A similar Order^[20][10] granting execution pending appeal was likewise issued in the two other cases, Civil Case Nos. 1322-95 and 1332-95, on January 17, 2006.  Nine days later, on January 26, 2006, a Joint Writ of Execution^[21][11] for the two cases was issued.

NPC alleges that Judge Adiong’s act of granting execution pending appeal failed to conform strictly to the rigid criteria outlined by jurisprudence for executions pending appeal.  There was no special reason for the issuance of the writ, and the grant of the writ was whimsical and clearly manifested the partiality of respondent judge.  Further, Judge Adiong’s evident bias and unexplained interest to execute the decisions manifested when he immediately set for hearing a motion to cite in contempt a Land Bank personnel who allegedly refused to comply with the notice of garnishment despite the fact that the motion lacked the required notice of hearing and the failure of the plaintiffs to comply with Rule 71 of the Rules of Court.^[22][12]  

In his Comment^[23][13] dated June 1, 2006, respondent judge raised the following in his defense.  With regard to the lack of pre-trial conference, respondent judge asserts that he has set the case for hearing on December 8 and 15, 2005, and January 12, 13, and 27, 2006.  In all these hearings, the parties were allowed to present whatever evidence they had to support their claims.  He also claims that the lack of pre-trial was never raised by NPC since the time it filed its answer on May 15, 2003 up to the time plaintiffs started presenting their evidence on December 8, 2005.  It was only on February 14, 2006 that NPC belatedly filed a manifestation calling the court’s attention to the lack of pre-trial, without formally asking or praying for the setting of one.  In addition, the records show that the plaintiffs filed their pre-trial brief while defendant NPC did not.  Thus, he argues that NPC is deemed to have waived the holding of a pre-trial conference.  Perforce, Judge Adiong argues that he should not be held administratively liable for not conducting pre-trial.^[24][14]

On the charge that he was biased and has unexplained interest to execute the Decisions in Civil Case Nos. 1322-95, 1332-95, 1367-95, 1361-95 and 1355-95, respondent judge denied the allegations and explained that he complied with the requirements for allowing an execution pending appeal.  He asserts there was good reason for its issuance and there was evidence substantiating the need to issue the writ of execution which were clearly spelled out and stated in the Special Orders dated January 17, 2006and January 25, 2006.  Further, there is no reason to complain about the bank personnel being held for contempt, as said bank personnel was not even adjudged guilty of contempt.^[25][15]

Respondent judge adds that he should be absolved from the charges against him.  He argues that mere suspicion that a judge is partial to one of the parties to the case is not enough; there should be evidence to support the charge.^[26][16]  Also, he asserts that a judge cannot be held administratively liable for errors in the appreciation of evidence unless the errors are gross or made in bad faith.^[27][17]  When such errors of judgment are committed, complainants may avail themselves of the remedy of appeal or certiorari and not the filing of administrative charges against the judge who rendered the challenged decision. 

On October 2, 2007, this Court referred the present complaint to the Court of Appeals, Cagayan De Oro City, for investigation, report and recommendation.  Pursuant to the Rules of Court, now retired Associate Justice Ruben C. Ayson, to whom this case was assigned, sent notices to the parties informing them of the schedule of investigation and hearings.  The case was heard for five days, fromMay 25 to 29, 2009, and the parties were required to present oral, as well as documentary evidence in support of their respective allegations and counter-allegations.

On July 10, 2009, Justice Ayson submitted his report finding respondent judge administratively liable.  Justice Ayson did not delve into the correctness of the Resolution dated February 28, 2006, granting the refund of millions of pesos representing the PPA charges, as the resolution is now the subject of an appeal with this Court, docketed as G.R. No. 177288 entitled, Ibrahim Abdo, et al. v. Court of Appeals and National Power Corporation.  Neither did he delve into the merits of all the other cases from which the administrative cases filed by NPC against Judge Adiong arose, for the reason that the proper venue for their review would be through the usual judicial process of review by appellate courts.^[28][18]   

The Investigating Justice also noted the well-entrenched rule that a judge may not be held administratively liable for every erroneous decision he renders, for no person called upon to determine the facts or interpret the law in the administration of justice can be infallible.  However, he also noted that there is a prominent exception to the rule, that is, when the law is so elementary that not to know it constitutes gross ignorance of the law.^[29][19]  In said cases, a judge committing such error may face administrative sanctions. 

Specifically, Justice Ayson noted that in Civil Case No. 1918-03, Judge Adiong failed to conduct a pre-trial conference and erred in conducting the series of hearings in the case without determining the existence of necessary pre-conditions before the court could take cognizance of the case. Records revealed that Judge Adiong failed to resolve (1) the issue on the insufficiency of the complaint as a class suit; (2) the issue of nonpayment of docket fees necessary to vest the court with jurisdiction over the case; (3) the issue on forum-shopping allegedly committed by therein plaintiffs; and (4) the question regarding the alleged failure of therein plaintiffs to state with particularity their respective residences.  Justice Ayson noted that without a proper resolution of these threshold jurisdictional questions, any decision in the case is premature and without factual and legal basis.  In other words, the court would only be engaged in a useless exercise and would merely be wasting the time and resources of the parties.^[30][20]

Further, the Investigating Justice stressed that the conduct of a pre-trial is mandatory.  He explained that pre-trial is a procedural device whereby the court is called upon to compel the parties and their lawyers to appear before it and negotiate an amicable settlement or otherwise make a formal statement and embody in a single document the issues of fact and law involved in the action. Respondent judge asserts that NPC only called the attention of the court in passing in one of its hearings held sometime inDecember 8, 2005andJanuary 27, 2006.  Judge Adiong alleges that he then advised NPC to file the appropriate pleading, but it was only after the case was terminated that NPC made a manifestation on the lack of pre-trial.  Judge Adiong adds that the conduct of a pre-trial conference would have been a mere superfluity, and claims that the absence of pre-trial did not cause substantial prejudice or injury to the parties as the purpose of expediting the proceedings has been attained.  However, Justice Ayson opined that under the circumstances, Judge Adiong should have scheduled the case for pre-trial as he was already aware of the procedural defect.  His act of not minding the setting of pre-trial, when he had every opportunity and reasonable time to do so, can be characterized as negligent and imprudent, according to Justice Ayson.  Justice Ayson added that respondent judge apparently failed to comply with the rules and failed to exercise the required initiative to set the case for pre-trial. Considering Judge Adiong’s long years of service, a total of thirty-nine (39) years in the Judiciary, more than anyone else, he should be presumed to be conversant with the law and the rules.  The law involved in this case being elementary, failure to consider it or to act as if he does not know it, constitutes gross ignorance of the law. Justice Ayson said,

x x x Indeed, when the inefficiency springs from a failure to consider so basic and elemental a rule, a law or a principle in the discharge of his duties, a judge is either too incompetent and undeserving of the position and the title he holds or is too vicious that the oversight or omission was deliberately done in bad faith and in grave abuse of judicial authority.^[31][21]

As to the granting of the motions for execution pending appeal, Justice Ayson pointed out that respondent judge gave flimsy and unsupported reasons to support his order to issue the writ of execution pending appeal.

In Civil Case No. 1367-95, respondent judge granted the execution pending appeal on the ground that the plaintiff therein suffered a stroke and allegedly needed to undergo an operation costing millions of pesos.  However, said allegations were based only on the self-serving testimony of the plaintiff’s sister whose testimony was uncorroborated by any other evidence. 

In Civil Case Nos. 1361-95 and 1355-95, Judge Adiong granted the motion for execution pending appeal based on the testimony of the plaintiff who testified on his medical condition as stated in his medical certificate.  Said medical certificate, however, was never verified by the doctor who allegedly issued it.  Hence, it was unreliable and was merely hearsay evidence.

Meanwhile, in Civil Case No. 1322-95, the motion for execution pending appeal was granted based on the plaintiff’s claim that he is getting old and needed money to support his family of four wives and twenty-nine (29) children.  But the plaintiff’s allegation was not corroborated by any competent evidence. 

In all these cases, respondent judge found justification that the financial conditions of the plaintiffs warranted the issuance of the writ of execution pending appeal.  Justice Ayson, however, opined that while the power to grant or deny immediate or advance execution is addressed to the sound discretion of the court, it is required that good reason exists for granting execution pending appeal as provided under Section 2,^[32][22] Rule 39 of the Rules of Court.  Absent any such good reason, the special order of execution must be struck down for having been issued with grave abuse of discretion. 

Standing alone, the alleged dire financial distress of the plaintiffs in Civil Case Nos. 1918-03, 1322-95, 1332-95, 1367-95, 1361-95, 1355-95 cannot be taken as “good reason” for the immediate execution of respondent judge’s decisions, according to Justice Ayson.  Justice Ayson opined that indeed, when respondent judge acted hastily in granting the execution of his Decision pending appeal, his actuation did not indicate zeal to his duty but a clear disservice to the cause of justice.  Indubitably, respondent judge showed poor judgment and gross ignorance of basic legal principles, added Justice Ayson.

After careful review of the records of this case, we find the above observations and findings of the Investigating Justice well taken.

Judge Adiong failed to conduct a pre-trial conference in Civil Case No. 1918-03 contrary to elementary rules of procedure which he should have known all too well considering his long years of service in the bench.  The mandatory character of pre-trial is embodied in Administrative Circular No. 3-99^[33][23] dated January 15, 1999, and found its way in Section 2,^[34][24] Rule 18 of the Rules of Court, which imposes a duty upon the plaintiff to promptly move ex parte that the case be set for pre-trial.  To further implement the pre-trial guidelines, this directive was reiterated in Administrative Matter No. 03-1-09-SC^[35][25] entitled “Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures” which recognized the importance of pre-trial and the deposition-discovery measures as vital components of case management in trial courts.^[36][26] 

To further show that the Court is serious in implementing the rules on pre-trial, in Alviola v. Avelino^[37][27] the Court imposed the penalty of suspension on a judge who merely failed to issue a pre-trial order within ten (10) days after the termination of the pre-trial conference as mandated by Paragraph 8,^[38][28] Title I (A) of A.M. No. 03-1-09-SC. 

Here, respondent judge failed to conduct the pre-trial conference itself.  It is elementary and plain that the holding of such a pre-trial conference is mandatory and failure to do so is inexcusable. When the law or procedure is so elementary, such as the provisions of the Rules of Court, not to know it or to act as if one does not know it constitutes gross ignorance of the law.^[39][29]  Such ignorance of a basic rule in court procedure, as failing to conduct pre-trial, sadly amounts to gross ignorance and warrants a corresponding penalty. 

As to the allegations of poor judgment and gross ignorance of basic legal principles in granting the motions for execution pending appeal for flimsy and unsupported reasons, we find that the particular reasons relied upon by respondent judge for issuing the writ of execution pending appeal are so unreliably weak and feeble that it highlights the lack of knowledge of respondent judge with regard to the proper appreciation of arguments.

In Florendo v. Paramount Insurance Corp.,^[40][30] the Supreme Court held: 

            x x x “Good reasons,” it has been held, consist of compelling circumstances that justify immediate execution lest the judgment becomes illusory. The circumstances must be superior, outweighing the injury or damages that might result should the losing party secure a reversal of the judgment. Lesser reasons would make of execution pending appeal, instead of an instrument of solicitude and justice, a tool of oppression and inequity.

“Good reason” as required by Section 2, Rule 39 of the Rules of Court does not necessarily mean unassailable and flawless basis but at the very least, it must be on solid footing.   Dire financial conditions of the plaintiffs supported by mere self-serving statements as “good reason” for the issuance of a writ of execution pending appeal does not stand on solid footing.  It does not even stand on its own.

Section 8, Rule 140 of the Rules of Court, as amended, classifies gross ignorance of the law as a serious charge and Section 11 thereof penalizes it with any of the following sanctions:

1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations. Provided, however, That the forfeiture of benefits shall in no case include accrued leave credits;

2. Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months; or

3. Afine of more than P20,000[.00] but not exceeding P40,000.00.^[41][31]

Considering, however, that in A.M. No. RTJ-04-1826, this Court has already dismissed Judge Adiong, the penalties of suspension from office without salary and dismissal from the service are no longer possible.  Hence, the penalty of fine is more appropriate.

WHEREFORE, the now dismissed respondent Judge Santos B. Adiong of the Regional Trial Court of Marawi City, Branch 8 is, for gross ignorance of the law, FINED in the amount of P40,000.00 to be deducted from his retained/withheld accrued leave credits. 

SO ORDERED.

TIP 0010: SUPPOSE YOUR STENOGRAPHER FAILS TO SUBMIT TSN DESPITE DEMANDS. WHAT IS HIS OR HER LIABILITY? THE CASE OF JUDGE ABSIN VS. MONTALLA (JUNE 2011) IS PERTINENT.

SOURCE: JUDGE EDILBERTO G. ABSIN VS. EDGARDO A. MONTALLA (A.M. NO. P-10-2829, 21 JUNE 2011, PER CURIAM) BRIEF TITLE: JUDGE ABSIN VS. MONTALLA.

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SUBJECT/DOCTRINE/ DIGEST

STENOGRAPHER MONTALLA FAILED TO SUBMIT TSNs DESPITE SEVERAL DEMANDS. WHAT IS HIS LIABILITY?

FAILURE TO SUBMIT TSN IS GROSS NEGLECT OF DUTY. IT IS A GRAVE OFFENSE. PENALTY IS DISMISSAL.

Montalla should be reminded that it is the duty of the court stenographer who has attended a session of a court to immediately deliver to the clerk of court all the notes he has taken, the same to be attached to the record of the case.¹ Precisely, Administrative Circular No. 24-90² was issued in order to minimize delay in the adjudication of cases as a great number of cases could not be decided or resolved promptly because of lack of TSNs. The circular required all stenographers to transcribe all stenographic notes and to attach the TSNs to the record of the case not later than 20 days from the time the notes are taken. The attaching may be done by putting all TSNs in a separate folder or envelope, which will then be joined to the record of the case.³ The circular also provided that the stenographer concerned shall accomplish a verified monthly certification as to compliance with this duty and in the absence of such certification or for failure and/or refusal to submit it, his salary shall be withheld.⁴

The Court has ruled, in a number of cases,⁵ that the failure to submit the TSNs within the period prescribed under Administrative Circular No. 24-90 constitutes gross neglect of duty. Gross neglect of duty is classified as a grave offense and punishable by dismissal even if for the first offense pursuant to Section 52(A)(2) of Rule IV of the Uniform Rules on Administrative Cases in the Civil Service.

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EN BANC

Present:

CORONA, C.J.,

CARPIO,

VELASCO, JR.,

LEONARDO-DE CASTRO,

BRION,

– versus – PERALTA,

BERSAMIN,

DELCASTILLO,

ABAD,

VILLARAMA, JR.,

PEREZ,

MENDOZA, and

SERENO, JJ.

EDGARDO A. MONTALLA,

Stenographer, Regional

Trial Court, Branch 29,

San Miguel, Zamboanga Promulgated:

Del Sur,

Respondent. June 21, 2011

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D E C I S I O N

PER CURIAM:

This administrative matter stemmed from a letter-complaint filed by Judge Edilberto G. Absin (Judge Absin), Presiding Judge of the Regional Trial Court, Branch 29, San Miguel, Zamboanga del Sur (RTC-Branch 29), charging respondent Edgardo A. Montalla (Montalla), stenographer of the same court, with neglect of duty in failing to submit the required transcripts of stenographic notes (TSNs) despite repeated reminders from the court.

In his letter-complaint dated 23 November 2009, Judge Absin alleged that in the Resolution dated 23 October 2009 issued by the Court of Appeals (CA) in CA-G.R. No. 01280-MIN (Heirs of Victoriano Magallanes, et al. v. Ernesto Pono and Crispina Pono), the CA noted that Montalla failed to submit signed copies of the TSNs taken on the following dates: (1) 13 October 2004 on the witness Maria Sabuero; (2) 11 January 2005 on the witness Rodolfo Omboy; (3) 26 April 2005 on the witness Rosalinda Magallanes; (4) 12 October 2005 on the witness Ernesto Pono; (5) 7 December 2005 on the witness Crispina Pono; and (6) 25 January 2006 and 2 March 2006 on the witness Rogelio Magallanes. Montalla allegedly asked for time to submit the required TSNs but failed to submit the same. Montalla was repeatedly reminded to comply with the CA’s resolution but he still did not comply.

In his Comment dated and mailed on 10 March 2010, Montalla admitted he was the stenographer who took down the stenographic notes on the dates mentioned and both the presiding judge and the clerk of court repeatedly reminded him to transcribe the stenographic notes of the proceedings. Montalla, however, claimed he was prevented from performing his tasks due to poor health as he was diagnosed with pulmonary tuberculosis, peptic ulcer, and diabetes. Montalla now seeks the compassion of the Court as he is allegedly still recovering from his illnesses.

In the Resolution dated 2 August 2010, the parties were required to manifest if they were willing to submit the matter for resolution on the basis of the pleadings filed. We noted the letter dated 24 September 2010 of Judge Absin informing the Court that he was submitting the case for resolution on the basis of the pleadings filed without further comment. We dispensed with the manifestation of Montalla who failed to file the same within the period despite receipt of the resolution.

The Office of the Court Administrator (OCA) opined that Montalla should have been fully aware that public officers are repositories of public trust and are under obligation to perform the duties of their office honestly, faithfully, and to the best of their ability. For failure to submit the required TSNs, Montalla is guilty of gross neglect of duty classified as a grave offense and punishable by dismissal. However, for humanitarian reasons, the OCA recommended the imposition of the penalty of suspension of six months without pay with a stern warning that a repetition of the same or similar infraction in the future shall be dealt with more severely.

On 9 February 2011, we issued a Resolution ordering Montalla to manifest whether he has submitted the required TSNs. In effect, this Resolution gave Montalla one more chance to redeem himself. However, Montalla mailed on 4 March 2011 his Comment, which was received by OCA on 2 May 2011, containing the same statements he made in his Comment dated/mailed on 10 March 2010. He admits that the Clerk of Court and Judge Absin had reminded him, repeatedly, to transcribe the stenographic notes. Montalla admits his transgressions but this time his excuse is that his failure to submit the required TSNs was due to poor health (allegedly because of “previous pulmonary tuberculosis, peptic ulcer and diabetes”) that prevented him from performing simple tasks. But one thing is clear. Montalla still has not submitted the required TSNs which were taken sometime in 2004, 2005, and 2006. Verily, Montalla has been remiss in his duty as a court stenographer.

Montalla should be reminded that it is the duty of the court stenographer who has attended a session of a court to immediately deliver to the clerk of court all the notes he has taken, the same to be attached to the record of the case.¹ Precisely, Administrative Circular No. 24-90² was issued in order to minimize delay in the adjudication of cases as a great number of cases could not be decided or resolved promptly because of lack of TSNs. The circular required all stenographers to transcribe all stenographic notes and to attach the TSNs to the record of the case not later than 20 days from the time the notes are taken. The attaching may be done by putting all TSNs in a separate folder or envelope, which will then be joined to the record of the case.³ The circular also provided that the stenographer concerned shall accomplish a verified monthly certification as to compliance with this duty and in the absence of such certification or for failure and/or refusal to submit it, his salary shall be withheld.⁴

The Court has ruled, in a number of cases,⁵ that the failure to submit the TSNs within the period prescribed under Administrative Circular No. 24-90 constitutes gross neglect of duty. Gross neglect of duty is classified as a grave offense and punishable by dismissal even if for the first offense pursuant to Section 52(A)(2) of Rule IV of the Uniform Rules on Administrative Cases in the Civil Service.

This is not the first time that Montalla was charged with neglect of duty for delay in the submission of the TSNs. He was previously warned of a repetition of the same or similar infraction. In Office of the Court Administrator v. Montalla,⁶ Montalla incurred a delay of more than three years in transcribing the TSNs despite constant reminders from his superiors to submit the same. In that case, Montalla admitted lapses in the performance of his function which caused a delay in the speedy disposition of cases. He invoked serious marital problems which allegedly greatly affected his work. The Court considered Montalla’s “humble acknowledgment of his transgressions and his offer of sincere apology and promise to be more circumspect in the performance of his duties” and the fact that it was his first infraction. Montalla was found guilty of simple neglect of duty and was fined P2,000 with a stern warning that a repetition of the same or similar offense in the future shall be dealt with more severely.

In the present case, Montalla also failed to submit the required TSNs despite the warnings and the chances given to him to submit the same. The TSNs were taken in 2004, 2005, and 2006 and he was required to submit the same in 2009, 2010 and just recently, in February 2011. His utter disregard of the court directives and the reminders from his superiors and his lapses in the performance of his duty as a court stenographer caused delay in the speedy disposition of the case. This is no longer simple neglect of duty. Montalla, in repeatedly failing to submit the required TSNs for several years now, no longer deserves the compassion and understanding of the Court.

As a stenographer, Montalla should realize that the performance of his duty is essential to the prompt and proper administration of justice, and his inaction hampers the administration of justice and erodes public faith in the judiciary. The Court has expressed its dismay over the negligence and indifference of persons involved in the administration of justice. No less than the Constitution mandates that public officers must serve the people with utmost respect and responsibility. Public office is a public trust, and Montalla has without a doubt violated this trust by his failure to fulfill his duty as a court stenographer.⁷

WHEREFORE, we find respondent Edgardo A. Montalla, Stenographer, Regional Trial Court, Branch 29, San Miguel, Zamboanga del Sur, GUILTY of Gross Neglect of Duty. We DISMISS him from the service and FORFEIT his retirement benefits, except accrued leave credits. He is further disqualified from reemployment in the Judiciary. This judgment is immediately executory.

To avoid further delay in the disposition of CA-G.R. No. 01280-MIN (Heirs of Victoriano Magallanes, et al. v. Ernesto Pono and Crispina Pono), Montalla is ordered to submit, within a non-extendible period of thirty (30) days from receipt hereof, the transcripts of stenographic notes mentioned above, under pain of contempt.

SO ORDERED.

RENATO C. CORONA

Chief Justice

1 Section 17, Rule 136 of the Revised Rules of Court provides:

SEC. 17. Stenographer. – It shall be the duty of the stenographer who has attended a session of a court either in the morning or in the afternoon, to deliver to the clerk of court, immediately at the close of such morning or afternoon session, all the notes he has taken, to be attached to the record of the case; and it shall likewise be the duty of the clerk to demand that the stenographer comply with said duty. The clerk of court shall stamp the date on which such notes are received by him. When such notes are transcribed, the transcript shall be delivered to the clerk, duly initialed on each page thereof, to be attached to the record of the case.

Whenever requested by a party, any statement made by a judge of first instance, or by a commissioner, with reference to a case being tried by him, or to any of the parties thereto, or to any witness or attorney, during the hearing of such case, shall be made of record in the stenographic notes.

2 Revised Rules on Transcription of Stenographic Notes and Their Transmission to Appellate Courts, 12 July 1990.

3 Paragraph 2(a).

4 Paragraph 2(b).

5 Marquez v. Pacariem, A.M. No. P-06-2249, 8 October 2008, 568 SCRA 77, 89; Banzon v. Hechanova, A.M. No. P-04-1765 (Formerly OCA IPI No. 01-1174-P), 8 April 2008, 550 SCRA 554, 559-560; Judge Reyes v. Bautista, 489 Phil. 85, 93 (2005); Judge Santos v. Laranang, 383 Phil. 267, 276-277 (2000).

6 A.M. No. P-06-2269, 20 December 2006, 511 SCRA 328.

7 Banzon v. Hechanova, supra note 5 at 560.

TIP 0009: COURT RECORDS MUST NOT BE BROUGHT OUT OF THE COURT PREMISES. PERTINENT TO THIS RULE IS THE THE CASE OF ATTY. AVECILLA.

SOURCE: RE: RESOLUTION OF THE COURT DATED 1 JUNE 2004 IN G.R. NO. 72954 AGAINST ATTY. VICTOR C. AVECILLA (A.C. NO. 6683, 21 JUNE 2011, PEREZ, J.) SUBJECT: BRINGING OUT ROLLO OUTSIDE COURT FOR UNOFFICIAL USE. (BRIEF TITLE: CASE AGAINST ATTY. AVECILLA).

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ATTY. AVECILLA, THEN A COURT EMPLOYEE, TOOK OUT ROLLO OUTSIDE COURT. IS HIS ACT PUNISHABLE?

YES. COURT EMPLOYEES ARE NOT ALLOWED TO TAKE OUT ANY COURT RECORD OUTSIDE THE COURT PREMISES.

Given the foregoing, We find that there are sufficient grounds to hold respondent administratively liable. 

First.  Taking judicial records, such as a rollo, outside court premises, without the court’s consent, is an administratively punishable act.  In Fabiculana, Sr. v. Gadon,^[1][55] this Court previously sanctioned a sheriff for the wrongful act of bringing court records home, thus:

Likewise Ciriaco Y. Forlales, although not a respondent in complainant’s letter-complaint, should be meted the proper penalty, having admitted taking the records of the case home and forgetting about them.  Court employees are, in the first place, not allowed to take any court records, papers or documents outside the court premises.  It is clear that Forlales was not only negligent in his duty of transmitting promptly the records of an appealed case to the appellate court but he also failed in his duty not to take the records of the case outside of the court and to subsequently forget about them.^[2][56] (Emphasis supplied)

XXXXXXXXXXXXXXXXXXXXX

WHAT RULE DID ATTY. AVECILLA VIOLATE?

RULE 6.02, CANON 6 OF THE CODE OF PROFESSIONAL RESPONSIBILITY WHICH PROHIBITS GOVERNMENT LAWYERS TO USE THEIR PUBLIC POSITION TO ADVANCE THEIR INTERESTS.

Second.  The act of the respondent in borrowing a rollo for unofficial business entails the employment of deceit not becoming a member of the bar.  It presupposes the use of misrepresentation and, to a certain extent, even abuse of position on the part of the respondent because the lending of rollos are, as a matter of policy, only limited to official purposes.

As a lawyer then employed with the government, the respondent clearly violated Rule 6.02, Canon 6 of the Code of Professional Responsibility, to wit:

Rule 6.02 – A lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties. (Emphasis supplied).

XXXXXXXXXXXXXXXX

THE OFFICE OF THE CHIEF ATTORNEY (OCAT) RECOMMENDED THAT ATTY. AVECILLA BE  METED PENALTY OF ONE YEAR SUSPENSION. WAS THIS PROPER?

NO. THE PENALTY IS TOO HARSH CONSIDERING CERTAIN CIRCUMSTANCES IN FAVOR OF ATTY. AVECILLA.

          Third.  However, We find the recommended penalty of suspension from the practice of law for one (1) year as too harsh for the present case.  We consider the following circumstances in favor of the respondent:

1.     G.R. No. 72954 was already finally resolved when its rollo was borrowed on 13 September 1991.  Thus, the act of respondent in keeping the subject rollo worked no prejudice insofar as deciding G.R. No. 72954 is concerned.

2.     It was never established that the contents of the rollo, which remained confidential despite the finality of the resolution in G.R. No. 72954, were disclosed by the respondent.

3.     After his possession of the subject rollo was discovered, the respondent cooperated with the JRO for the return of the rollo.

We, therefore, temper the period of suspension to only six (6) months.

================================   

EN BANC

x———————————————————————————————– x

D E C I S I O N

PEREZ, J.:

          The present administrative case is based on the following facts:

Prelude

          Sometime in 1985, respondent Atty. Victor C. Avecilla (Atty. Avecilla) and a certain Mr. Louis C. Biraogo (Mr. Biraogo) filed a petition before this Court impugning the constitutionality of Batas Pambansa Blg. 883, i.e., the law that called for the holding of a presidential snap election on 7 February 1986.  The petition was docketed as G.R. No. 72954 and was consolidated with nine (9) other petitions^[3][1] voicing a similar concern.

          On 19 December 1985, the Court En banc issued a Resolution dismissing the consolidated petitions, effectively upholding the validity of Batas Pambansa Blg. 883.^[4][2]

          On 8 January 1986, after the aforesaid resolution became final, the rollo^[5][3] of G.R. No. 72954 was entrusted to the Court’s Judicial Records Office (JRO) for safekeeping.^[6][4]

The Present Case

On 14 July 2003, the respondent and Mr. Biraogo sent a letter^[7][5] to the Honorable Hilario G. Davide, Jr., then Chief Justice of the Supreme Court (Chief Justice Davide), requesting that they be furnished several documents^[8][6] relative to the expenditure of the Judiciary Development Fund (JDF).  In order to show that they have interest in the JDF enough to be informed of how it was being spent, the respondent and Mr. Biraogo claimed that they made contributions to the said fund by way of the docket and legal fees they paid as petitioners in G.R No. 72954.^[9][7]

On 28 July 2003, Chief Justice Davide instructed^[10][8] Atty. Teresita Dimaisip (Atty. Dimaisip), then Chief of the JRO, to forward the rollo of G.R. No. 72954 for the purpose of verifying the claim of the respondent and Mr. Biraogo.

On 30 July 2003, following a diligent search for the rollo of G.R. No. 72954, Atty. Dimaisip apprised^[11][9] Chief Justice Davide that the subject rollo could not be found in the archives.  Resorting to the tracer card^[12][10] of G.R. No. 72954, Atty. Dimaisip discovered that the subject rollo had been borrowed from the JRO on 13 September 1991 but, unfortunately, was never since returned.^[13][11]  The tracer card named the respondent, although acting through a certain Atty. Salvador Banzon (Atty. Banzon), as the borrower of the subject rollo.^[14][12]

The next day, or on 31 July 2003, Chief Justice Davide took prompt action by directing^[15][13] Atty. Dimaisip to supply information about how the respondent was able to borrow the rollo of G.R. No. 72954 and also to take necessary measures to secure the return of the said rollo.

Reporting her compliance with the foregoing directives, Atty. Dimaisip sent to Chief Justice Davide a Memorandum^[16][14] on 13 August 2003.  In substance, the Memorandum relates that:

1.     At the time the rollo of G.R. No. 72954 was borrowed from the JRO, the respondent was employed with the Supreme Court as a member of the legal staff of retired Justice Emilio A. Gancayco (Justice Gancayco).  Ostensibly, it was by virtue of his confidential employment that the respondent was able to gain access to the rollo of G.R. No. 72954.^[17][15]

2.     Atty. Dimaisip had already contacted the respondent about the possible return of the subject rollo.^[18][16]  Atty. Dimaisip said that the respondent acknowledged having borrowed the rollo of G.R. No. 72954 through Atty. Banzon, who is a colleague of his in the office of Justice Gancayco.^[19][17]

On 18 August 2003, almost twelve (12) years after it was borrowed, the rollo of G.R. No. 72954 was finally turned over by Atty. Avecilla to the JRO.^[20][18]

          On 22 September 2003, Chief Justice Davide directed^[21][19] the Office of the Chief Attorney (OCAT) of this Court, to make a study, report and recommendation on the incident.  On 20 November 2003, the OCAT submitted a Memorandum^[22][20] to the Chief Justice opining that the respondent may be administratively charged, as a lawyer and member of the bar, for taking out the rollo of G.R. No. 72954.  The OCAT made the following significant observations:

1.     Justice Gancayco compulsorily retired from the Supreme Court on 20 August 1991.^[23][21]  However, as is customary, the coterminous employees of Justice Gancayco were given an extension of until 18 September 1991 to remain as employees of the court for the limited purpose of winding up their remaining affairs.  Hence, the respondent was already nearing the expiration of his “extended tenure” when he borrowed the rollo of G.R. No. 72954 on 13 September 1991.^[24][22]

2.     The above circumstance indicates that the respondent borrowed the subject rollo not for any official business related to his duties as a legal researcher for Justice Gancayco, but merely to fulfill a personal agenda.^[25][23]  By doing so, the respondent clearly abused his confidential position for which he may be administratively sanctioned.^[26][24]

3.     It must be clarified, however, that since the respondent is presently no longer in the employ of the Supreme Court, he can no longer be sanctioned as such employee.^[27][25]  Nevertheless, an administrative action against the respondent as a lawyer and officer of the court remains feasible.^[28][26]

Accepting the findings of the OCAT, the Court En banc issued a Resolution^[29][27] on 9 December 2003 directing the respondent to show cause why he should not be held administratively liable for borrowing the rollo of G.R. No. 72954 and for failing to return the same for a period of almost twelve (12) years.

The respondent conformed to this Court’s directive by submitting his Respectful Explanation (Explanation)^[30][28] on 21 January 2004.  In the said explanation, the respondent gave the following defenses:

1.     The respondent maintained that he neither borrowed nor authorized anyone to borrow the rollo of G.R. No. 72954.^[31][29]  Instead, the respondent shifts the blame on the person whose signature actually appears on the tracer card of G.R. No. 72954 and who, without authority, took the subject rollo in his name.^[32][30]  Hesitant to pinpoint anyone in particular as the author of such signature, the respondent, however, intimated that the same might have belonged to Atty. Banzon.^[33][31]

2.     The respondent asserted that, for some unknown reason, the subject rollo just ended up in his box of personal papers and effects, which he brought home following the retirement of Justice Gancayco.^[34][32]  The respondent can only speculate that the one who actually borrowed the rollo might have been a colleague in the office of Justice Gancayco and that through inadvertence, the same was misplaced in his personal box.^[35][33]

3.     The respondent also denounced any ill-motive for failing to return the rollo, professing that he had never exerted effort to examine his box of personal papers and effects up until that time when he was contacted by Atty. Dimaisip inquiring about the missing rollo.^[36][34]  The respondent claimed that after finding out that the missing rollo was, indeed, in his personal box, he immediately extended his cooperation to the JRO and wasted no time in arranging for its return.^[37][35]

On 24 February 2004, this Court referred the respondent’s Explanation to the OCAT for initial study.  In its Report^[38][36] dated 12 April 2004, the OCAT found the respondent’s Explanation to be unsatisfactory.

On 1 June 2004, this Court tapped^[39][37] the Office of the Bar Confidant (OBC) to conduct a formal investigation on the matter and to prepare a final report and recommendation.  A series of hearings were thus held by the OBC wherein the testimonies of the respondent,^[40][38] Atty. Banzon,^[41][39] Atty. Dimaisip^[42][40] and one Atty. Pablo Gancayco^[43][41] were taken.  On 6 August 2007, the respondent submitted his Memorandum^[44][42] to the OBC reiterating the defenses in his Explanation.

On 13 October 2009, the OBC submitted its Report and Recommendation^[45][43] to this Court.  Like the OCAT, the OBC dismissed the defenses of the respondent and found the latter to be fully accountable for taking out the rollo of G.R. No. 72954 and failing to return it timely.^[46][44]  The OBC, thus, recommended that the respondent be suspended from the practice of law for one (1) year.^[47][45]

Our Ruling

          We agree with the findings of the OBC.  However, owing to the peculiar circumstances in this case, we find it fitting to reduce the recommended penalty. 

The Respondent Borrowed The Rollo

          After reviewing the records of this case, particularly the circumstances surrounding the retrieval of the rollo of G.R. No. 72954, this Court is convinced that it was the respondent, and no one else, who is responsible for taking out the subject rollo.

          The tracer card of G.R. No. 72954 bears the following information:

1.     The name of the respondent, who was identified as borrower of the rollo,^[48][46] and

2.     The signature of Atty. Banzon who, on behalf of the respondent, actually received the rollo from the JRO.^[49][47]

The respondent sought to discredit the foregoing entries by insisting that he never authorized Atty. Banzon to borrow the subject rollo on his behalf.^[50][48]  We are, however, not convinced.

First.  Despite the denial of the respondent, the undisputed fact remains that it was from his possession that the missing rollo was retrieved about twelve (12) years after it was borrowed from the JRO.  This fact, in the absence of any plausible explanation to the contrary, is sufficient affirmation that, true to what the tracer card states, it was the respondent who borrowed the rollo of G.R. No. 72954.

Second.  The respondent offered no convincing explanation how the subject rollo found its way into his box of personal papers and effects.  The respondent can only surmise that the subject rollo may have been inadvertently placed in his personal box by another member of the staff of Justice Gancayco.^[51][49]  However, the respondent’s convenient surmise remained just that—a speculation incapable of being verified definitively.

Third. If anything, the respondent’s exceptional stature as a lawyer and former confidante of a Justice of this Court only made his excuse unacceptable, if not totally unbelievable.  As adequately rebuffed by the OCAT in its Report dated 12 April 2004:

x x x However, the excuse that the rollo “inadvertently or accidentally” found its way to his personal box through his officemates rings hollow in the face of the fact that he was no less than the confidential legal assistance of a Member of this Court.  With this responsible position, Avecilla is expected to exercise extraordinary diligence with respect to all matters, including seeing to it that only his personal belongings were in that box for taking home after his term of office in this Court has expired.^[52][50]

          Verily, the tracer card of G.R. No. 72954 was never adequately controverted.  We, therefore, sustain its entry and hold the respondent responsible for borrowing the rollo of G.R. No. 72954.

Respondent’s Administrative Liability

          Having settled that the respondent was the one who borrowed the rollo of G.R. No. 72954, We next determine his administrative culpability.

          We begin by laying the premises:

1.     The respondent is presently no longer in the employ of this Court and as such, can no longer be held administratively sanctioned as an employee.^[53][51]   However, the respondent, as a lawyer and a member of the bar, remains under the supervisory and disciplinary aegis of this Court.^[54][52]

2.     The respondent was already nearing the expiration of his “extended tenure” when he borrowed the rollo of G.R. No. 72954 on 13 September 1991.^[55][53]  We must recall that Justice Gancayco already retired as of 20 April 1991. Hence, it may be concluded that for whatever reason the respondent borrowed the subject rollo, it was not for any official reason related to the adjudication of pending cases.^[56][54]

3.     The respondent’s unjustified retention of the subject rollo for a considerable length of time all but confirms his illicit motive in borrowing the same.  It must be pointed out that the subject rollo had been in the clandestine possession of the respondent for almost twelve (12) years until it was finally discovered and recovered by the JRO.

          Given the foregoing, We find that there are sufficient grounds to hold respondent administratively liable. 

First.  Taking judicial records, such as a rollo, outside court premises, without the court’s consent, is an administratively punishable act.  In Fabiculana, Sr. v. Gadon,^[57][55] this Court previously sanctioned a sheriff for the wrongful act of bringing court records home, thus:

Likewise Ciriaco Y. Forlales, although not a respondent in complainant’s letter-complaint, should be meted the proper penalty, having admitted taking the records of the case home and forgetting about them.  Court employees are, in the first place, not allowed to take any court records, papers or documents outside the court premises.  It is clear that Forlales was not only negligent in his duty of transmitting promptly the records of an appealed case to the appellate court but he also failed in his duty not to take the records of the case outside of the court and to subsequently forget about them.^[58][56] (Emphasis supplied)

Second.  The act of the respondent in borrowing a rollo for unofficial business entails the employment of deceit not becoming a member of the bar.  It presupposes the use of misrepresentation and, to a certain extent, even abuse of position on the part of the respondent because the lending of rollos are, as a matter of policy, only limited to official purposes.

As a lawyer then employed with the government, the respondent clearly violated Rule 6.02, Canon 6 of the Code of Professional Responsibility, to wit:

Rule 6.02 – A lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties. (Emphasis supplied).

          Third.  However, We find the recommended penalty of suspension from the practice of law for one (1) year as too harsh for the present case.  We consider the following circumstances in favor of the respondent:

1.     G.R. No. 72954 was already finally resolved when its rollo was borrowed on 13 September 1991.  Thus, the act of respondent in keeping the subject rollo worked no prejudice insofar as deciding G.R. No. 72954 is concerned.

2.     It was never established that the contents of the rollo, which remained confidential despite the finality of the resolution in G.R. No. 72954, were disclosed by the respondent.

3.     After his possession of the subject rollo was discovered, the respondent cooperated with the JRO for the return of the rollo.

We, therefore, temper the period of suspension to only six (6) months.

WHEREFORE, in light of the foregoing premises, the respondent is hereby SUSPENDED from the practice of law for six (6) months.  The respondent is also STERNLY WARNED that a repetition of a similar offense in the future will be dealt with more severely.

          SO ORDERED.

WE CONCUR:

RENATO C. CORONA

Chief Justice

ANTONIO T. CARPIO                         PRESBITERO J. VELASCO, JR.   

      Associate Justice                                   Associate Justice

TERESITA J. LEONARDO-DECASTRO           ARTURO D. BRION

     Associate Justice                                         Associate Justice

                    DIOSDADO M. PERALTA                         LUCAS P. BERSAMIN

       Associate Justice                                         Associate Justice

       MARIANO C. DEL CASTILLO                   ROBERTO A. ABAD

        Associate Justice                                        Associate Justice     

        MARTIN S. VILLARAMA, JR.            JOSE CATRAL MENDOZA

         Associate Justice                                    Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice