FIRST DIVISION
[A.C. No. 8618. January 19, 2018.]
ALBERTO V. UNTALAN, complainant, vs. ATTY. MARSABELO JOSE D. SORIANO, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution datedJanuary 19, 2018which reads as follows: AIDSTE
"A.C. No. 8618 (Alberto V. Untalan, Complainant v. Atty. Marsabelo Jose D. Soriano, Respondent).
Before Us is a Complaint 1 for disbarment or suspension filed before the Integrated Bar of the Philippines, Commission on Bar Discipline (IBP-CBD) by Alberto V. Untalan (complainant) against Atty. Marsabelo Jose D. Soriano (respondent) for gross ignorance of law and violation of Rule 10.03 in relation to CANON 6 and Rule 6.01 of the Code of Professional Responsibility (CPR).
Complainant alleged that he is a member of the Members Church of God International, Inc. (MCGI). Respondent, on the other hand, is an Assistant City Prosecutor in Quezon City. 2
The Complainant basically questioned respondent's conduct of preliminary investigation in relation to a case entitled Daniel Razon, represented by his Attorney-In-Fact, Fredelino O. Tudio v. Domingo Pastrana y Rodriguez and Two John Does, docketed as Inquest No. XV-03-INQ-09K-04144 for libel. 3 Notably, herein complainant is not, in any way, a party-in-interest in the said libel case. 4
The Complainant narrated that on November 1, 2009, respondent issued a handwritten Resolution recommending the filing of an Information for libel against Domingo Pastrana and the bail be set at P10,000. Further investigation was also recommended as regards the two John Does. 5
On November 3, 2009, respondent issued a typewritten version of the said action taken. 6
On November 4, 2009, however, respondent issued an Amended Resolution, recommending that no case be filed due to non-payment of legal fees despite notice and directing the arresting officer to release Domingo Pastrana unless detained for a lawful cause. 7
Complainant argued that reversing the previous resolution merely due to the non-payment of filing fees is a flimsy reason, especially when the private complainant in the criminal case was not notified of such requirement in violation of Article II, Section 2B (2), Paragraph (f) of the Guidelines in the Assessment and Collection of Legal Fees by the National Prosecution Service Pursuant to Republic Act No. 9279 and its Implementing Rules and Regulations. The case, according to the complainant, should have been decided on the merits and not on such technicality. 8
Further, complainant argued that in recommending the release of the respondent, the latter failed to comply with the New Rules on Inquest (DOJ Circular No. 61) as Section 9 of the said rules provide that release may be effected only when the arrest was not proper. In this case, according to the complainant, the respondent in the criminal case was caught in flagrante delicto, hence, there is no basis for the release. 9
Considering the foregoing, complainant argued that respondent violated his duty as a member of the Bar under Rule 10.03, CANON 6, and Rule 6.01 of the CPR, to wit:
Rule 10.03 — A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice.
CANON 6 — These canons shall apply to lawyers in government services in the discharge of their official tasks.
Rule 6.01 — The primary duty of a lawyer engaged in public prosecution is not to convict but to see that justice is done. The suppression of facts or the concealment of witnesses capable of establishing the innocence of the accused is highly reprehensible and is cause for disciplinary action. 10
For his part, respondent admitted the existence of the November 1, 3, and 4, 2009 Resolutions. He, however, denied the accusation of gross ignorance of law and violation of the CPR. He insisted that there is nothing irregular with how he conducted his duty as he followed the inquest procedures and the Revised Manual for Prosecutors to the letter. 11
Respondent maintained that he personally examined the witnesses to determine the existence of probable cause and admittedly came up with the initial recommendation to file the Information for libel on November 1, 2009. Respondent averred that he gave a copy of the said initial recommendation to the investigator, PO3 Victor Baquedqued, and informed the latter to remind the private complainant to pay the legal fees. Also, in the presence of all the parties and witnesses, respondent instructed the private complainant, through his attorney-in-fact Atty. Tudio, to pay the necessary legal fees on the next business day as it was a holiday. On November 3, 2009, respondent prepared the typewritten draft of the November 1, 2009 Resolution for the approval of 1st Assistant City Prosecutor Meynardo M. Bautista, Jr. (Asst. City Pros. Bautista), Chief of the Inquest Division. However, it was not approved due to the non-payment of legal fees. Thus, the next day, respondent prepared the Amended Resolution, which was approved and signed by Asst. City Pros. Bautista. Hence, according to respondent, the Amended Resolution is the only binding resolution as it was the only one approved by his superior. 12 acEHCD
As regards the alleged violation of Section 9 of DOJ Circular No. 61 on the release of Domingo Pastrana, respondent maintained that the same is in accord with the rights of such accused under Section 1, 14, and 16 of the Bill of Rights and Articles 124, 125, and 126 of the Revised Penal Code. 13
Lastly, respondent manifested that the libel complaint against Domingo Pastrana has already been approved for filing in a Resolution dated July 13, 2010 upon therein private complainant's payment of the required legal fees in a motion for reconsideration. 14
The IBP-CBD found no reason to suspend, much more disbar the respondent based on the allegations in the complaint and records available. 15
It found that respondent's conduct of the inquest was in accordance with the Guidelines in the Assessment and Collection of Legal Fees by the National Prosecution Service Pursuant to Republic Act No. 9279 and its Implementing Rules and Regulations. The said Rules expressly provide that complaints filed for inquests, preliminary investigation and for appeals/petitions for review shall not be accepted unless the legal fees have been paid. 16
The IBP-CBD also noted that private complainant's attorney-in-fact, being a lawyer, should have knowledge of the requisite payment of legal fees with or without notice from the prosecutor. 17
According to the IBP-CBD, there is no scintilla of proof which indicates that respondent violated any law or rules of procedure. Thus:
WHEREFORE, in view of the foregoing, it is respectfully recommended that the disbarment complaint against respondent Atty. Marsabello Jose D. Soriano be dismissed for lack of merit. 18
In its September 28, 2014 Resolution No. XXI-2014-673, 19 the IBP Board of Governors adopted the IBP-CBD's findings and recommendation, thus:
RESOLUTION NO. XXI-2014-673Alberto V. Untalan vs.
RESOLVED to ADOPT and APPROVED, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner in the above-entitled case, herein made part of this Resolution as Annex "A", and finding the recommendation to be fully supported by the evidence on record and applicable laws, and considering that the Complaint lacks merit, the case against Respondent is hereby DISMISSED.
On November 29, 2016, complainant's motion for reconsideration was denied by the Board of Governors in its Resolution No. XXII-2016-625, 20 thus:
RESOLUTION NO. XXII-2016-625Alberto V. Untalan vs.
RESOLVED to DENY the Motion for Reconsideration and AFFIRM the dismissal of the complaint, there being no new reason nor argument adduced to justify the reversal of the Decision of the Board of Governors.
The case is now before this Court for confirmation.
We find no reason to deviate from the findings and conclusion of the IBP-CBD as adopted by the Board of Governors.
Jurisprudence is consistent in that an attorney enjoys the legal presumption that he is innocent of the charges against him until the contrary is proved, and that as an officer of the court, he is presumed to have performed his duties in accordance with his oath. 21 Corollarily, basic is the rule that in disbarment proceedings, the burden of proof rests upon the complainant. For the Court to exercise its disciplinary powers, the case against the respondent must be established by convincing and satisfactory proof. 22 Needless to say, in disbarment proceedings as in any other case, mere allegation is not evidence and is not equivalent to proof. 23
In this case, the IBP-CBD correctly found that there is no scintilla of proof that respondent violated any rules of procedure or law in the conduct of his duty as assistant city prosecutor in the inquest of the subject criminal case. Indeed, the dismissal of the criminal complaint was warranted for non-payment of the legal fees pursuant to the Guidelines in the Assessment and Collection of Legal Fees Pursuant to R.A. No. 9279 and its Implementing Rules and Regulations. Specifically, Section 5 thereof provides:
5. Non-compliance.
5.1. Complaints filed for Inquests, Preliminary Investigations and for appeals/petitions for review shall not be acted upon unless the Legal Fees have been paid.
5.2. No Prosecutor shall initiate the conduct of the Preliminary Investigation of a case or accept the filing of Motions/Manifestations/Pleadings relative to such case as prescribed under the Schedule of Legal Fees without proof that Legal Fees have been paid. SDHTEC
Complainant's bare allegation that respondent did not notify private complainant in the criminal case as to the required payment of legal fees cannot prevail over respondent's denial of the same which was supported by PO3 Baquedqued's affidavit attesting to respondent's claim that private complainant, through his attorney-in-fact, was notified of such requirement. Moreover, the IBP-CBD correctly considered that the attorney-in-fact, being a lawyer, should have known that non-payment of the legal fees is fatal to the prosecution of their case.
There is also no proof as to complainant's allegation that respondent arbitrarily changed his mind in issuing the Amended Resolution. What is clear in this case is that the Amended Resolution was issued instead of respondent's prior Resolution/s as the former was the one approved by his superior.
Likewise, there is nothing arbitrary nor irregular to respondent's order to release the respondent in the dismissed criminal complaint. Indeed, complainant's reliance upon DOJ Circular No. 61, Section 9 was misplaced. The said provision speaks of the recommendation to release a person arrested or detained when the arrest was not properly effected. In this case, the order of release was indeed not due to the illegality of arrest but because of the dismissal of the complaint against him. As such, there is no more reason to hold the person in detention.
Lastly, the filing of the subject libel case upon payment of the legal fees on private complainant's motion for reconsideration, only proves that respondent's actions were dictated not by bias or gross ignorance of the law as claimed by the complainant, but by provisions of the law and the rules.
WHEREFORE, premises considered, Resolution No. XXII-2016-625 dated November 29, 2016 is hereby ADOPTED. Accordingly, the administrative case against Atty. Marsabelo Jose D. Soriano is hereby DISMISSED.
SO ORDERED."
Very truly yours,
(SGD.) LIBRADA C. BUENADeputy Division Clerk of Court
Footnotes
1.Rollo, pp. 1-8.
2.Id. at 1.
3.Id. at 238-239.
4.Id. at 237.
5.Id. at 2.
6.Id.
7.Id. at 3.
8.Id. at 239.
9.Id. at 4-5.
10.Id. at 6-7.
11.Id. at 242.
12.Id. at 242-244.
13.Id. at 244.
14.Id. at 244-245.
15.Id. at 245.
16.Id.
17.Id. at 247-248.
18.Id. at 249.
19.Id. at 236.
20.Id. at 234.
21.Dumanlag v. Atty. Intong, A.C. No. 8638, October 10, 2016, 805 SCRA 489, 497.
22.Francia v. Atty. Abdon, 739 Phil. 299, 308 (2014).
23.Cruz, Jr. v. Atty. Reyes, A.C. No. 9090, August 31, 2016, 801 SCRA 608, 625.