Valdez v. Lao

THIRD DIVISION

[A.C. No. 11015. April 6, 2016.]

ATTY. CARNELL S. VALDEZ, petitioner, vs. ATTY. LLOYD CHRISTOPHER A. LAO, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Third Division, issued a Resolution dated April 6, 2016, which reads as follows:

"A.C. No. 11015 — (Atty. Carnell S. Valdez vs. Atty. Lloyd Christopher A. Lao). — The Court NOTES the letter dated December 7, 2015 of the IBP transmitting the documents pertaining to this case.

For the resolution of the Court is the Complaint for Disbarment dated February 6, 2012 filed before the Integrated Bar of the Philippines (IBP) by complainant Atty. Carnell S. Valdez against respondent Atty. Lloyd Christopher A. Lao for alleged abuse of judicial and administrative process or forum shopping on account of the latter's act of simultaneously filing a Motion for Judicial Determination of Probable Cause before the Metropolitan Trial Court (MTC) and a Petition for Review before the Department of Justice (DOJ). 1

The pertinent portions of the Report and Recommendation dated May 28, 2013 of Investigating Commissioner Atty. Michael G. Fabunan, Commission on Bar Discipline, IBP, are as follows: 2

REPORT AND RECOMMENDATION

xxx xxx xxx

FOR THE COMPLAINANT:

. . . . The instant complaint arose from a complaint for violation of six (6) counts of B.P. 22 filed by complainant against Mr. Teodorico S. Adarna (Adarna) who was then represented by herein respondent Atty. Lao as Adarna's defense counsel. On 10 November 2011, the Prosecutor's Office of Parañaque City issued a Resolution finding probable cause against Adarna for violation of six (6) counts of B.P. 22 . . . and on even date, six (6) Information finding probable cause for violation of B.P. 22 against the (sic) Adarna were filed by the investigating prosecutor and forwarded to the Office of the Clerk of Court, Metropolitan Trial Court the following day. Respondent Atty. Lao, as defense counsel for Adarna, filed a Motion for Reconsideration with the Parañaque Prosecutor's Office dated 25 November 2011 praying for a reconsideration of the aforementioned resolution . . . . In the meanwhile, the case against Adarna was raffled and assigned to MTC, Branch 77 Parañaque City and docketed as Criminal Case No. 11-740-45 ("MTC 77", hereafter) entitled "People of the Philippines vs. Teodorico S. Adarna". Pending resolution of Adarna's Motion for Reconsideration, a Motion for Judicial Determination of Probable Cause . . . was filed by respondent Atty. Lao in MTC 77. On 15 December 2011, the Motion for Reconsideration . . . was denied by the investigating prosecutor. A Petition for Review . . . before the Department of Justice (DOJ) was filed by respondent Atty. Lao and received by the complainant on 27 January 2011. Both Motion for Judicial Determination of Probable Cause and the Petition for Review filed by the respondent are pending resolution before the Court and the DOJ, respectively. With the foregoing narration of events, the complainant called the attention of this Commission and raised the issue that both pleadings filed by the respondent are substantially the same, and by doing so, respondent Atty. Lao have abused both judicial and administrative processes considering that both the Court and the DOJ will be conducting simultaneous and parallel proceedings on an identical issue. Hence, this instant complaint for disbarment filed by complainant Atty. Valdez against respondent Atty. Lao.

xxx xxx xxx

ISSUE:

For resolution is whether or not respondent Atty. Lloyd Christopher Lao committed forum shopping, in violation of Rule 12.02, Canon 12 of the Code of Professional Responsibility which provides that: cSEDTC

"A lawyer shall not file multiple actions arising from the same cause."

CONCLUSION AND RECOMMENDATION:

xxx xxx xxx

In resolving the instant case, it is necessary to determine whether there is forum shopping in the act of respondent in filing a Petition for Review before the DOJ pending resolution of the latter's Motion for Judicial Determination of Probable Cause filed before MTC 77.

In the case of Zenaida Polanco, et al. vs. Carmen Cruz, G.R. No. 182426, 13 February 2009, the Supreme Court held that:

"There is forum-shopping when as a result of an adverse decision in one forum, or in anticipation thereof, a party seeks a favorable opinion in another forum through means other than appeal or certiorari. Forum-shopping exists when two or more actions involve the same transactions, essential facts, and circumstances; and raise identical causes of action, subject matter, and issues. Still another test of forum-shopping is when the elements of litis pendencia are present or where a final judgment in one case will amount to res judicata in another — whether in the two or more pending cases, there is an identity of (a) parties (or at least such parties as represent the same interests in both actions), (b) rights or causes of action, and (c) reliefs sought".

As can be gleaned from the facts of the case, respondent Atty. Lao filed three pleadings: (1) a Motion for Reconsideration before the City Prosecutor's Office of Parañaque City; (2) Motion for Judicial Determination of Probable Cause before the Metropolitan Trial Court in view of the filing of the Information against his client, Mr. Teodorico Adarna; and (3) Petition for Review (which was later on withdrawn in view of the scheduled arraignment of the accused Adarna) with the DOJ after the City Prosecutor's office denied his motion for reconsideration while his Motion for Judicial Determination of Probable Cause is pending resolution with MTC 77. The pleadings filed by herein respondent are not initiatory pleadings considering that both the Petition for Review and Motion for Judicial Determination of Probable [C]ause are remedies of an accused in a criminal case. The latter is a remedial measure specifically allowed and provided for the rules (see Section 6[b] in relation to Section 6[a], Rules of Court). The granting or denial of the Petition for Review (as stated both in the Answer and Position Paper of the respondent) will not necessarily cause the immediate dismissal of the Information as the public prosecutor is still required to file a motion to dismiss or withdraw the Information before the court where it is filed in the event that the petition would be granted. The dismissal of the Information is still vested to the sound discretion of the court and based on the evidence attached to the information. Thus, despite the favorable resolution of the petition for review, the court is mandated to evaluate the evidence of the prosecution, thereafter, the court may rule either to grant or deny the motion of the public prosecutor. The resolution of the petition for review will not necessarily bar the prosecution of the criminal case filed before the court. In fact, the court upon receipt of a petition for review may suspend the arraignment of the accused for a period of sixty (60) days in order to await the resolution of the petition for review before the Department of Justice (Section 11[c], Rule 116 of the Rules of Court). With the foregoing, there is no forum shopping in the acts committed by the respondent considering that the elements of forum shopping are lacking.

Moreover, as correctly pointed out by the respondent, the Motion for Judicial Determination of Probable Cause is not tantamount to forum shopping since such pleading is merely a remedial pleading in response to the initiatory pleading filed by the prosecution, and this motion was filed in connection with the Information filed before MTC 77. To deny accused Adarna through respondent as his counsel to avail of this remedy is tantamount to the denial of accused's right to due process.

WHEREFORE, in view of the foregoing, it is respectfully recommended that the instant complaint for disbarment filed by complainant Atty. Carnell Valdez against respondent Atty. Lloyd Christopher A. Lao be DISMISSED.

In Resolution No. XXI-2014-490, the Board of Governors of the IBP adopted and approved the Report and Recommendation of the Investigating Commissioner dismissing the case against respondent.

The Court finds the recommendation of the IBP fully supported by the evidence on record and the applicable laws.

In filing a petition for review before the DOJ questioning the finding of probable cause by the prosecutor and a motion for judicial determination of probable cause before the trial court, respondent did not commit forum shopping.

In Co v. Lim, et al., 3 the Court held that the determination by the DOJ that no prima facie case exists for the prosecution of the case is distinct from the judicial determination of the trial court that there is no probable cause for the continued hearing of the criminal case. The Court explained:

. . . The former is pursuant to the powers and functions of the Department of Justice as provided under Section 2, Chapter 1, Title III of the Revised Administrative Code:

Section 3. Powers and Functions. — To accomplish its mandate, the Department shall have the following powers and functions:

xxx xxx xxx

(2) Investigate the commission of crimes, prosecute offenders and administer the probation and correction system.

On the other hand, the determination made by the RTC, which is being questioned in the present case, is pursuant to the judicial powers conferred by Section 1, Article VIII of the Constitution:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. SDAaTC

In Mendoza v. People and Juno Cars, Inc., 4 where petitioner therein similarly filed a petition for review of the denial before the DOJ and a motion for judicial determination of probable cause before the trial court, the Court explained that there are two kinds of determination of probable cause: executive and judicial. The Court elaborated:

. . . The executive determination of probable cause is one made during preliminary investigation. It is a function that properly pertains to the public prosecutor who is given a broad discretion to determine whether probable cause exists and to charge those whom he believes to have committed the crime as defined by law and thus should be held for trial. Otherwise stated, such official has the quasi-judicial authority to determine whether or not a criminal case must be filed in court. Whether or not that function has been correctly discharged by the public prosecutor, i.e., whether or not he has made a correct ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does not and may not be compelled to pass upon.

The judicial determination of probable cause, on the other hand, is one made by the judge to ascertain whether a warrant of arrest should be issued against the accused. The judge must satisfy himself that based on the evidence submitted, there is necessity for placing the accused under custody in order not to frustrate the ends of justice. If the judge finds no probable cause, the judge cannot be forced to issue the arrest warrant.

The difference is clear: The executive determination of probable cause concerns itself with whether there is enough evidence to support an Information being filed. The judicial determination of probable cause, on the other hand, determines whether a warrant of arrest should be issued.

WHEREFORE, in view of the foregoing, the Court resolves to DISMISS the complaint against Atty. Lloyd Christopher A. Lao, and consider this case as CLOSED and TERMINATED.

SO ORDERED.

Very truly yours,

 

(SGD.) WILFREDO V. LAPITANDivision Clerk of Court

Footnotes

1. Rollo, p. 5.

2. Id. at 218-221.

3. 619 Phil. 704, 718-719 (2009).

4. G.R. No. 197293, April 21, 2014.