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SECOND DIVISION

[ A.C. No. 8911, July 08, 2019 ]

IN RE: ATTY. ROMULO P. ATENCIA: REFERRAL BY THE COURT OF APPEALS OF A LAWYER'S UNETHICAL CONDUCT AS INDICATED IN ITS DECISION DATED JANUARY 31, 2011 IN CA-G.R. CR-HC NO. 03322 (PEOPLE OF THE PHILIPPINES V. AURORA TATAC, ET AL.).

R E S O L U T I O N

PERLAS-BERNABE, J.:

For the Court's resolution is an administrative complaint[1] filed against respondent former Judge Romulo P. Atencia (respondent) for violation of Rule 6.03 of the Code of Professional Responsibility (CPR).

The Facts


On December 16, 2003, respondent, then Presiding Judge of the Regional Trial Court of Virac, Catanduanes, Branch 43 (RTC), presided over the arraignment of accused Aurora Tatac (Tatac), Maria Gaela (Gaela), and Maritess Cunanan (Cunanan; collectively, accused) in Criminal Case Nos. 3265, 3266, and 3267 for transporting dangerous drugs, and thereafter, ordered a joint trial of the cases upon his determination that the cases involved a commonality of evidence.[2]

On February 11, 2004, respondent tendered his resignation as Presiding Judge of the RTC due to health reasons, which took effect on April 30, 2004.[3]

On April 21, 2006, or almost two (2) years after he resigned, respondent entered his appearance in the same criminal cases as substitute counsel for accused Tatac, Gaela, and Cunanan.

After trial, the RTC convicted the accused, prompting Tatac and Gaela to appeal to the CA with respondent as counsel.[4]

On appeal, the CA acquitted the accused[5] but noted that respondent committed an ethical infraction because of his acceptance of the cause of the accused, who had earlier appeared before him when he was still a judge, viz.:

First, a word on the perceived unethical conduct of former Judge Romulo Atencia who, after presiding over the initial stages of the case, including the arraignment of the accused, was later engaged as counsel for the same accused.

x x x x

x x x [H]is acceptance of the cause of the accused-appellants, who had earlier appeared before him when he was still a judge, seriously taints his stature as a lawyer. It cannot be helped that his acceptance of the same case which he presided over may not have been made with the most pristine of intentions. While a lawyer should not reject, except for valid reasons, the cause of the defenseless or the oppressed, it is also true that he should avoid conflict of interest. Moreover, former Judge Romulo Atencia's tenure as judge of the same court may have been a significant factor for the accused-appellants' decision to engage his services. A lawyer should never allow himself to be perceived as able to influence any public official, tribunal or legislative body.

x x x x


In this regard, the CA observed that the matter should be referred6 to the Integrated Bar of the Philippines (IBP) for further investigation pursuant to Section 1 of Rule 139-B of the Rules of Court (Rules).[7]

Subsequently, the Commission on Bar Discipline of the IBP referred the matter to the Office of the Bar Confidant (OBC) for appropriate action.[8]

In a Memorandum[9] dated March 11, 2011, the OBC recommended: (1) the docketing of the complaint; and (2) that respondent be required to comment.[10] Pursuant to the OBC's recommendation, the Court issued a Resolution[11] dated April 11, 2011, approving the formal docketing of the complaint against respondent and requiring him to comment on his alleged unethical conduct.[12]

In his Comment,[13] respondent refuted the charges against him, claiming that there is no prohibition against a former judge to accept as his client somebody who was an accused in his sala when he was still judge.[14] Respondent also argued that his participation was limited to the arraignment of the accused and to the issuance of the order directing the joint trial of the cases due to commonality of evidence.[15]

In a Resolution[16] dated November 28, 2011, the Court referred the case to the IBP for investigation, report, and recommendation.[17]

The IBP's Report and Recommendation


In a Report and Recommendation[18] dated June 10, 2013, the IBP Investigating Commissioner found respondent administratively liable for violating Rule 6.03 of the CPR, and accordingly, recommended that he be meted the penalty of suspension from the practice of law for one (1) year.

The Investigating Commissioner noted that as a former judge of the court where the cases were then pending, respondent is considered to have "intervened" when he accepted to be the counsel for the accused. Indeed, as a judge, respondent had the power to influence the proceedings, regardless of his limited participation in the case as aforementioned. Thus, he is prohibited from accepting any engagement from the accused involving the same matter.[19]

In a Resolution[20] dated August 9, 2014, the IBP Board of Governors adopted the aforesaid report and recommendation.[21]

However, during the pendency of this case, or on July 6, 2017, respondent unfortunately passed away.[22]

The Issue Before the Court


The issue for the Court's resolution is whether or not respondent should be held administratively liable for violation of Rule 6.03 of the CPR.

The Court's Ruling


Rule 6.03 of the CPR states:

Rule 6.03 – A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in said service.


In Olazo v. Tinga,[23] the Court held that Rule 6.03 contemplates of a situation where a lawyer, formerly in the government service, accepted engagement or employment in a matter which, by virtue of his public office, had previously exercised power to influence the outcome of the proceedings.[24]

The rationale for the prohibition under Rule 6.03 is this: private lawyers who, during their tenure in government service, had possessed the power to influence the outcome of the proceedings, are bound to enjoy an undue advantage over other private lawyers because of their substantial access to confidential information on the matter (including the submissions of a counter-party), as well as to the government's resources dedicated to process/resolve the same (including contacts in the institution where the matter is pending). Thus, to obviate the temptation of these government lawyers to exploit the information, contacts, and influence garnered while in the service when they leave for private practice, the prohibition under Rule 6.03 was formulated.

In Presidential Commission on Good Government v. Sandiganbayan (PCGG),[25] the Court took pains to trace the roots of Rule 6.03 and discussed the so-called "revolving door" concern, which was the original impetus behind the prohibition under Rule 6.03:

In 1917, the Philippine Bar found that the oath and duties of a lawyer were insufficient to attain the full measure of public respect to which the legal profession was entitled. In that year, the Philippine Bar Association adopted as its own, Canons 1 to 32 of the ABA Canons of Professional Ethics.

As early as 1924, some ABA members have questioned the form and function of the canons. Among their concerns was the "revolving door" or "the process by which lawyers and others temporarily enter government service from private life and then leave it for large fees in private practice, where they can exploit information, contacts, and influence garnered in government service." These concerns were classified as "adverse-interest conflicts" and "congruent-interest conflicts." "Adverse-interest conflicts" exist where the matter in which the former government lawyer represents a client in private practice is substantially related to a matter that the lawyer dealt with while employed by the government and the interests of the current and former are adverse. On the other hand, "congruent-interest representation conflicts" are unique to government lawyers and apply primarily to former government lawyers, x x x To deal with problems peculiar to former government lawyers, Canon 36 was minted which disqualified them both for "adverse-interest conflicts" and "congruent-interest representation conflicts." The rationale for disqualification is rooted in a concern that the government lawyer's largely discretionary actions would be influenced by the temptation to take action on behalf of the government client that later could be to the advantage of parties who might later become private practice clients. Canon 36 provides, viz.:

26. Retirement from judicial position or public employment

A lawyer should not accept employment as an advocate in any matter upon the merits of which he has previously acted in a judicial capacity.

A lawyer, having once held public office or having been in the public employ should not, after his retirement, accept employment in connection with any matter he has investigated or passed upon while in such office or employ.[26] (Emphases and underscoring supplied)


According to the PCGG case, Rule 6.03 of CPR retained the general structure of paragraph 2, Canon 36 of the Canons of Professional Ethics "but replaced the expansive phrase "investigated and passed upon " with the word "intervened."[27] Notably, the word "intervened" was held to only include "an act of a person who has the power to influence the subject proceedings." The intervention cannot be insubstantial and insignificant. It does not "includ[e] participation in a proceeding even if the intervention is irrelevant or has no effect or little influence."[28]

In this case, it is undisputed that respondent not only presided over the arraignment proceedings involving the accused but also ordered the joint trial of Criminal Case Nos. 3265, 3266, and 3267 upon his determination that the cases involved a commonality of evidence. Accordingly, he performed acts that influenced the outcome of the proceedings. To be sure, the arraignment[29] is an essential stage of criminal prosecution where discretionary matters (such as plea bargaining or a motion to suspend arraignment[30]) may be raised, and without which the criminal cases cannot proceed. Furthermore, by conducting the arraignment of the accused, respondent had necessarily examined the records forwarded by the prosecutor and consequently, determined the existence of probable cause; otherwise, the case would have already been dismissed.[31]

Meanwhile, in ordering the joint trial, respondent had to examine the records of these cases in order to determine the commonality of evidence. Case law states that joint trial is permissible where the actions arise from the same act, event or transaction, involve the same or like issues, and depend largely or substantially on the same evidence, provided that the court has jurisdiction over the cases to be consolidated and that a joint trial will not give one party an undue advantage or prejudice the substantial rights of any of the parties.[32] Given respondent's directive for joint trial, the presentation of evidence must now cover ail the charges against and the defenses for all the accused, unlike before when they were to be taken individually.

Thus, given the significance of these acts to the outcome of the proceedings, respondent's acts fall within the ambit of the prohibition under Rule 6.03. Hence, he should not have accepted the engagement to be the private counsel of the accused in the same criminal cases in which he had previously intervened while in the government service.

However, due to respondent's supervening death, the Court finds it apt to dismiss the instant administrative complaint. The general rule is that "the Court is not ousted of its jurisdiction over an administrative matter by the mere fact that the respondent public official ceases to hold office during the pendency of the respondent's case;[33] jurisdiction once acquired, continues to exist until the final resolution of the case." In Loyao, Jr. v. Caube,[34] it was explained that:

This jurisdiction that was ours at the time of the filing of the administrative complaint was not lost by the mere fact that the respondent public official had ceased in office during the pendency of his case. The Court retains its jurisdiction either to pronounce the respondent public official innocent of the charges or declare him guilty thereof. A contrary rule would be fraught with injustice and pregnant with dreadful and dangerous implications... If innocent, respondent public official merits vindication of his name and integrity as he leaves the government which he has served well and faithfully; if guilty, he deserves to receive the corresponding censure and a penalty proper and imposable under the situation.[35]


The above rule, however, is not without exceptions. In Limliman v. Judge Ulat-Marrero,[36] the Court ruled that the death of the respondent necessitates the dismissal of the administrative case upon a consideration of any of the following factors: first, the observance of respondent's right to due process; second, the presence of exceptional circumstances in the case on the grounds of equitable and humanitarian reasons', and third, it may also depend on the kind of penalty imposed.[37]

Here, the Court would have merely reprimanded respondent for his ethical violation. However, since this penalty cannot anymore be implemented because respondent had already passed away, and further taking into account equitable and humanitarian considerations, the Court finds it proper to dismiss the administrative complaint against him.

WHEREFORE,  the administrative complaint against respondent former Judge Romulo P. Atencia is hereby DISMISSED.

SO ORDERED.

Carpio, (Chairperson), Caguioa, J. Reyes, Jr., and Lazaro-Javier, JJ., concur.



[1] In the Court's Resolution dated April 11, 2011 (rollo, p. 41), the Court considered the statements made by the Court of Appeals (CA) in the CA Decision dated January 31, 2011 in CA-G.R. CR HC No. 03322 entitled, "People of the Philippines v. Aurora Tatac y Dela Viña and Maria Gaela y Tatac" (see id. at 5-20) as an Administrative Complaint against herein respondent.

[2] See id. at 82.

[3] Id. at 83.

[4] Id.

[5] Id. at 37.

[6] Id. at 28-29.

[7] x x x "[T]he IBP Board of Governors may, motu proprio or upon referral by the Supreme Court or by a Chapter Board of Officers, or at the instance of any person, initiate and prosecute proper charges against any erring attorneys including those in the government service x x x."

[8] See Indorsement dated February 14, 2011 signed by Director for Bar Discipline Alicia A. Risos-Vidal; id. at 2.

[9] Id. at 1. Signed by Deputy Clerk of Court and Bar Confidant Ma. Cristina B. Layusa.

[10] Id.

[11] Id. at 41. Signed by Assistant Clerk of Court Wilfredo V. Lapitan.

[12] Id.

[13] Dated July 7, 2011; id. at 43-52.

[14] Id. at 46.

[15] Id. at 47.

[16] Id. at 55. Signed by Deputy Division Clerk of Court Wilfredo V. Lapitan.

[17] Id.

[18] Id. at 82-86. Penned by Commissioner Michael G. Fabunan.

[19] See id. at 86.

[20] Id. at 108-109. Signed by National Secretary Nasser A. Marohomsalic.

[21] Id.

[22] See Notice of Death dated December 14, 2017 with attached Certificate of Death; id. at 115-117, including dorsal portion.

[23] 651 Phil. 290 (2010).

[24] Id. at 305, citing Presidential Commission on Good Government v. Sandiganbayan, 495 Phil. 485, 520-521 (2005).

[25] 495 Phil. 485 (2005).

[26] Id. at 520-521.

[27] Id. at 513-514.

[28] See id. at 520-521.

[29] Arraignment is the formal mode and manner of implementing the constitutional right of an accused to be informed of the nature and cause of the accusation against him. The purpose of arraignment is, thus, to apprise the accused of the possible loss of freedom, even of his life, depending on the nature of the crime imputed to him, or at the very least to inform him of why the prosecuting arm of the State is mobilized against him. Notably, an entire rule, i.e., Rule 116 of the Rules, on Criminal Procedure, is dedicated to arraignment proceedings.

[30] See Sections 2 and 11, Rule 116 of the Rules.

[31] Section 5(a), Rule 112 of the Revised Rules of Criminal Procedure states that "[w]ithin ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. x x x."

[32] See Caños v. Peralta, 201 Phil. 422, 426 (1982).

[33] Re: Audit Report on Attendance of Court Personnel of RTC, Branch 32, Manila, 532 Phil. 51, 62-63 (2006).

[34] 450 Phil. 38 (2003).

[35] Id. at 44-45.

[36] 443 Phil. 732 (2003).

[37] See id. at 735-736.

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