THIRD DIVISION
[A.C. No. 12108. June 6, 2018.]
SPO1 ROGELIO ORIT, PO2 WINDEE LIM AND PO3 GIOVANNI GALO, complainants, vs. ATTY. WINSOR BASE CALAMBA, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution dated June 6, 2018, which reads as follows:
"A.C. No. 12108 (SPO1 Rogelio Orit, PO2 Windee Lim and PO3 Giovanni Galo vs. Atty. Winsor Base Calamba). — For resolution of the Court is a disbarment complaint against respondent Atty. Winsor B. Calamba filed by complainants SPO1 Rogelio Orit, PO2 Windee Lim and PO3 Giovanni Galo for violations of Canon 10 and Rule 10.01 of the Code of Professional Responsibility and his oath as a lawyer.
In the Petition for Disbarment, complainants alleged that respondent assisted one Federico Ozon (Ozon) in the preparation of a Judicial Affidavit Complaint for serious illegal detention allegedly containing untruthful, false and fictitious statements and accusations against them before the Office of the City Prosecutor in Maasin, Leyte. In the said affidavit, Ozon claimed that he was illegally arrested on October 10, 2014, when, in fact, he was legally arrested for violation of Section 103 of the Philippine Mining Act for having extracted minerals without the required license and permits and a corresponding case had been filed against him. The complainants added that Ozon could not feign ignorance as he had waived his rights under Article 125 of the Revised Penal Code and was well-informed of the reason for his arrest.
In his Answer, respondent denied violating the Code of Professional Responsibility. He contended that the legal assistance he extended to Ozon was privileged and in the performance of his duties as a lawyer to his client. He further maintained that there was indeed a basis for charging complainants for serious illegal detention as shown in a Resolution dated March 11, 2016 of the Regional State Prosecutor wherein it was found that there was actually no theft of minerals and that the warrantless arrest was illegal. Respondent thus prayed for the dismissal of the disbarment complaint against him. DcHSEa
After investigation, Investigating Commissioner Jose Villanueva Cabrera, Commission on Integrity and Bar Discipline, Integrated Bar of the Philippines (IBP), submitted the following Report and Recommendation dated February 11, 2015:
DISCUSSION
xxx xxx xxx
A careful examination of the records disclosed the following:
1. On October 16, 2014, [Ozon] filed a criminal complaint for serious illegal detention against herein complainants before the Office of the City Prosecutor in Maasin City, Leyte.
2. On May 14, 2015, the Office of the Prosecutor has dismissed the complaint for kidnapping or serious illegal detention against herein complainants for lack of probable cause.
3. On May 14, 2015, in a criminal complaint for violation of Philippine Mining Act, Provincial Ordinance (Sec. 103, RA 7942, Sangguniang Panlalawigan Ordinance No. 2005-4, dated April 11, 2005, filed by Eva P. Abad and Inigo C. Malobo against [Ozon], et al., a Joint Resolution was issued by the Provincial Prosecution, Southern Leyte which reads:
"xxx xxx xxx
Furthermore, respondents [Ozon] and Ernesto Dacay, Jr., in unison with one other are INDICTED for violation of Section 103 of R.A. 7942 and for violation of SP Ordinance No. 2005-4 dated April 11, 2005, as amended."
4. On February 02, 2015, complainants filed the present disbarment complaint for perpetrating falsehood in assisting [Ozon] in the preparation and filing of serious illegal detention against herein complainants.
5. On March 19, 2015, in a criminal complaint of complainants for PERJURY against [Ozon], et al., the Office of the Prosecutor of Maasin City issued a Resolution which reads:
"WHEREFORE, foregoing considered, it is hereby [resolved] that the complaint for perjury against [Ozon], x x x and Atty. Winsor Calamba be DISMISSED for lack of probable cause."
6. On March 11, 2016, the Regional State Prosecutor issued a Resolution reversing the Joint Resolution [in] NPS Docket No. VIII-07-INV-14J-00076 which reads:
"WHEREFORE, premises considered, the separate petitions of respondent-appellants Ernesto U. Dacay, Jr. and [Ozon] are hereby GRANTED. The assailed Joint Resolution of the Office a quo is hereby REVERSED and SET ASIDE and a new one entered dismissing the probable cause. x x x
The Provincial Prosecutor of Southern Leyte is hereby directed to cause the withdrawal of the Information filed in court and report the action taken to this Office within fifteen (15) days from receipt hereof."
7. In a Resolution dated May 31, 2016, the Office of the Regional Prosecutor denied the motion for reconsideration in the foregoing resolution.
Based on the foregoing facts, this Commission is of the considered view that complainants have failed to present clear preponderant evidence that respondent has violated any provision of the Rules of Court, his oath as a lawyer and the Code of Professional Responsibility in view of the following considerations: SCaITA
1. The act of assisting clients in the preparation, filing and representing them in the filing of complaints (civil, criminal, administrative), petitions, pleadings and legal documents are inherently the role or functions of lawyers and are embraced in the broad scope of the "practice of law." (Cayetano v. Monsod, G.R. No. 100113, September 3, 1991)
2. Essentially, unless a lawyer has transgressed a specific rule or law, a lawyer cannot be disciplined much less disbarred for performing his duties to the society, the legal profession, to the court and to his client.
3. Public office is a public trust. (Section 1, Article XI, 1987 Constitution) Hence, public officials, officers and employees must not be thinned-skin in the performance of their public duties and responsibilities. Herein complainants, being public officers charged before the Prosecutor's Office is already an inherent occupational hazard. The determination of whether complainants have indeed exceeded or abused their duties is within the authority of the prosecutorial service of the government to determine and recommend either to dismiss the charge or recommend the appropriate indictment. The only guarantee of any public official is the balm of a clear conscience.
4. The act of respondent in assisting and representing Federico B. Ozon in the filing of criminal complaint against herein complainants for serious illegal detention before the Office of the City Prosecutor in Maasin City, Leyte, is per se not actionable or a crime, neither did it constitute an administrative infraction of the Code of Professional Responsibility. Respondent cannot be held liable for performing his sworn oath and duty to protect or defend the rights of his client(s) within the limits permitted by law. Unless complainants can clearly show and prove that respondent has clearly violated any rule or canon, this Commission has no choice but to recommend the dismissal of the administrative case. In fact, Rule 14.01 of the Code provides that "a lawyer shall not decline to represent a person solely on account of the latter's race, sex or creed or status of life, or because of his own opinion regarding the guilt of said person." Likewise, Rule 2.01 of the Code states that "a lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed." And Rule 2.02 mandates that "in such cases, even if the lawyer does not accept a case, he shall not refuse to render a legal advice to the person concerned if only to the extent necessary to safeguard the latter's rights."
5. Based on the records, there is no proof that respondent is guilty of malicious prosecution in a civil action by final judgment or has been found guilty by final judgment of the crime punishable under Article 209 of the Revised Penal Code.
6. Complainants' allegations that respondent has violated Canon 10 and Rule 10.01 for assisting [Ozon] in preparing the Judicial Affidavit Complaint allegedly containing untruthful, false and fictitious statements and accusations has not been proven. Clearly, in the Judicial Affidavit Complaint itself, [Ozon] has sworn before the Assistant City Prosecutor Judy Navarosa on the truth and veracity of all his allegations contained in the judicial affidavit. There is nothing illegal or unethical in the act of respondent in assisting [Ozon] in the preparation of his affidavit. In fact, the Judicial Affidavit Rule, A.M. No. 12-8-8-SC which became effective on January 1, 2013 provides under Sec. 4 thereof of an attestation that the lawyer who conducted or supervised the examination of the witness has faithfully recorded or caused to be recorded the questions he asked and the corresponding answers that the witness gave. Any false attestation shall subject the lawyer to disciplinary action, including disbarment. In this case, however, no attestation was made by herein respondent which may hold respondent liable for false attestation. Instead, the affidavit was sworn before the Assistant Prosecutor Judy Navarosa. Clearly, if indeed the allegations contained therein are "untruthful, false, fictitious statements and accusations," at the very least, it should be [Ozon] who should be sued civilly or [criminally] and not herein respondent Atty. Calamba. Besides, there is nothing in the records which indicate that [Ozon] has ever executed any statement to the effect that respondent has advised him to indicate untruthful, false and fictitious statements against herein complainants. Obviously, complainants' allegations are self-serving and clearly unsubstantiated. Independently of this Commission's findings, the Office of the City Prosecutor has made similar findings dismissing the criminal complaints for Perjury against respondent Atty. Calamba. Finally, contrary to the self-serving claims of herein complainants, the Regional State Prosecutor has resolved to reverse the indictment of [Ozon] for theft of mineral deposit x x x.
7. This Commission cannot also inquire into the client and lawyer relationship between [Ozon] and respondent. This is privileged communication and is prohibited under Section 24(b) of Rule 130 of the Revised Rules on Evidence. The privacy of communications between [Ozon] and herein respondent is also inviolable by constitutional prescription [Sec. 3 (1), Article III, 1987 Constitution]. Canon 17 of the Code itself provides that "a lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him." The betrayal of trust by an attorney or the revelation of the secrets learned by him in his professional capacity shall render the lawyer liable administratively and criminally under Article 209 of the Revised Penal Code. aTHCSE
As it stands, the opinion of respondent Atty. Calamba is correct in that, with the dismissal of the criminal charge of theft against [Ozon] by the Regional Prosecutor, complainants have no basis to claim that [Ozon] was legally arrested for theft of mineral deposits. Consequently, the allegations of [Ozon] that he was seriously detained by complainants were not at all untruthful, false, or fictitious despite the dismissal of said criminal complaint by the Office of the Prosecutor.
Conversely, the mere fact that the complaint for serious illegal detention against the complainants has been dismissed by the Prosecution Office does not automatically give rise to any civil, administrative or criminal liability. The same is true with the dismissal of the perjury case, filed by herein complainants against respondent Atty. Calamba and the dismissal of the criminal complaint for theft of mineral deposit against [Ozon]. To follow complainants' reasoning would simply mean that the complainants themselves should also be held administratively liable merely on account of the dismissal of their criminal complainants against respondent Atty. Calamba. Unfortunately, this is not how the rule of law works in a republican state like the Philippines.
8. Complainants failed to prove that respondent has committed falsehood, or that he has dictated or advised [Ozon] and others to state false accusations against the complainants.
9. Complainants' allegation that respondent was fully aware of the alleged false accusation occasioned by his assistance extended to [Ozon] in waiving the latter's rights under Article 125 of the Revised Penal Code and the request for the conduct of preliminary investigation, does not by itself prove that respondent had knowledge of the alleged false accusations. Insinuations, allegations and erroneous conclusions are not proof or evidence. The dismissal of the criminal charge for serious illegal detention against the complainants for lack of probable cause does not prove that said charge was maliciously filed against herein complainants. The dismissal of the complainants' charge for perjury against respondent neither proves that complainants should also be charged for malicious prosecution.
IN VIEW THEREOF, it is the considered view of this Commission that complainants have failed to present clear preponderant evidence that respondent has violated any provision of the Rules of Court, his lawyer's oath and or any provision of the Code of Professional Responsibility.
RECOMMENDATION
WHEREFORE, premises considered, it is hereby recommended that the administrative charges against respondent ATTY. WINSOR B. CALAMBA be DISMISSED for insufficiency of evidence. 1
Acting on said recommendation, the IBP Board of Governors issued Resolution No. XXII-2017-901 dated April 19, 2017 upholding the dismissal of the complaint. cAaDHT
The Court's Ruling
After due consideration, the Court finds the recommendation of Investigating Commissioner Cabrera, as adopted and approved by the IBP Board of Governors, to be well taken.
We have always considered disbarment and suspension of an attorney as the most severe form of disciplinary action which should be imposed with great caution. As such, they should be meted out only for duly proven serious administrative charges. 2 In Arsenio v. Tabuzo, this Court held that substantial evidence is necessary to justify the imposition of the administrative penalty on, a member of the bar. 3 Therefore, the Court will exercise its disciplinary power only if the complainant establishes the complaint with substantial evidence. 4
In the case at bar, complainants utterly failed to sufficiently establish its claims that Atty. Calamba committed any act which overstepped his boundaries as a lawyer and officer of the court. Having failed to discharge the necessary burden of proof, the Petition for Disbarment against Atty. Calamba should be dismissed.
WHEREFORE, the complaint against respondent Atty. Winsor B. Calamba is DISMISSED for lack of merit. IDSEAH
SO ORDERED."
Very truly yours,
(SGD.) WILFREDO V. LAPITANDivision Clerk of Court
Footnotes
1.Rollo, pp. 1598-1605.
2.Jimenez v. Jimenez, A.C. No. 6712, February 6, 2006, 481 SCRA 528, 534.
3. A.C. No. 8658, April 24, 2017.
4.Reyes v. Nieva, A.C. No. 8560, September 6, 2016, 802 SCRA 196.