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SECOND DIVISION
MARCIANO
P.
BRION,
JR.,
Petitioner,
A.
C.
No. 5305
March 17, 2003
-versus-
FRANCISCO
F.
BRILLANTES,
JR.,
Respondent.
D
E C I S I
O N
QUISUMBING, J.:
In this petition for disbarment,
complainant Marciano Brion, Jr., charges the respondent, Atty.
Francisco
Brillantes, Jr., of having willfully violated a lawful order of this
Court
in A.M. No. MTJ-92-706, entitled Lupo Almodiel Atienza v. Judge
Francisco
F. Brillantes, Jr.[1]
The decretal portion of our resolution in Atienza reads:
WHEREFORE, respondent
is DISMISSED from the service with forfeiture of all leave and
retirement
benefits and with prejudice to reappointment in any branch,
instrumentality
or agency of the government, including government-owned and controlled
corporations. This decision is immediately executory.cralaw:red
SO ORDERED.[2]
Respondent's dismissal
in the aforesaid case was ordered after he was found guilty of Gross
Immorality
and Appearance of Impropriety during his incumbency as presiding judge
of the Metropolitan Trial Court, Branch 20, Manila.chanrobles virtuallaw libraryred
Petitioner now avers
that respondent violated our decree of perpetual disqualification
imposed
upon him from assuming any post in government service, including any
posts
in government-owned and controlled corporations, when he accepted a
legal
consultancy post at the Local Water Utilities Administration (LWUA),
from
1998 to 2000. Said consultancy included an appointment by LWUA as 6th
member
of the Board of Directors of the Urdaneta (Pangasinan) Water
District.
Upon expiration of the legal consultancy agreement, this was
subsequently
renewed as a Special Consultancy Agreement.cralaw:red
Petitioner contends
that while both consultancy agreements contained a proviso to the
effect
that nothing therein should be construed as establishing an
employer-employee
relationship between LWUA and respondent, the inclusion of this proviso
was only a ploy to circumvent our order barring respondent from
appointment
to a government agency. Petitioner points out in reality, respondent
enjoys
the same rights and privileges as a regular employee, to wit:[3]
1. Issuance of
LWUA properties such as a cellular phone with accessories, as evidenced
by the covering Property Issue Slips with respondent signing as
"Accountable
Employee";[4]
2. Official travel
to various places in the country as shown by Reports of Authorized
Travel
kept by LWUA's General Services Division[5]
and Report of Travel accomplished by respondent himself;[6]
3. Designation
as supervising officer over other LWUA employees as brought to light by
written instructions personally signed by respondent;[7]
4. Attendance
in water district conventions and meetings held in various provinces;[8]chanrobles virtuallaw libraryred
5. Membership
in several sensitive LWUA committees such as the
Prequalification,
Bids, and Awards Committee (PBAC), Build-Operate-Transfer (BOT)
Committee,
among others, with receipt of corresponding honoraria as borne out by
various
Disbursement Vouchers;[9]
6. Sitting at
meetings of the LWUA Board of Trustees as evidenced by the minutes of
such
meetings;[10]
and
7. Receipt of
Productivity Incentive Bonus in 1999.cralaw:red
Petitioner submits that
all of the foregoing constitute deceitful conduct, gross misconduct,
and
willful disobedience to a decree of this Court, and show that
respondent
is unfit to be a member of the Bar.cralaw:red
In his comment,[11]
respondent admits the existence of the Legal Consultancy Contract as
well
as the Special Consultancy Contract. However, he raises the
affirmative
defense that under Civil Service Commission (CSC) Memorandum Circular
No.
27, Series of 1993, services rendered pursuant to a consultancy
contract
shall not be considered government services, and therefore, are not
covered
by Civil Service Law, rules and regulations.cralaw:red
Further, says respondent,
according to the same Memorandum Circular issued by the Commission,
consultancy
contracts do not have to be submitted to the Commission for
approval.
With respect to his designation as the 6th Member of the Board of
Directors
of the Urdaneta Water District, respondent reasons out that the same is
not a "reappointment", which is prohibited by our ruling in Atienza, as
said designation is not an organic appointment to a LWUA plantilla
position.
Hence, according to respondent, the CSC need not pass approval upon his
temporary designation.chanrobles virtuallaw libraryred
Respondent also argues
that all the members of the Urdaneta Water District Board, especially
the
6th Member, who comes from the LWUA, assumed such functions merely by
virtue
of a designation and only in addition to their regular duties. In
any event, says respondent, his designation as 6th Member was revoked
in
April 2000 and the Special Consultancy Contract was pre-terminated on
April
30, 2000. It has never been renewed since then. With respect to
his
use of LWUA properties, respondent admits receiving the cellular phone
unit but insists that he merely borrowed it from one Solomon Badoy, a
former
LWUA Board of Trustees Member.cralaw:red
In our Resolution of
February 19, 2001, we referred this case to the Integrated Bar of the
Philippines
(IBP) for investigation, report and recommendation. The IBP
Commission
on Bar Discipline found that respondent willfully violated a lawful
order
of this Court and recommended that respondent be suspended from the
practice
of law for one (1) year and fined ten thousand (P10,000) pesos.cralaw:red
There is no question
that the LWUA is a government-owned and controlled corporation, created
by virtue of Presidential Decree No. 198.[12]
As such, our ruling in the Atienza case, A.M. No. MTJ-92-706, which
categorically
prohibits respondent's appointment to any position in any
government-owned
and controlled corporation, clearly encompasses and extends to LWUA
positions.cralaw:red
In the instant case
the respondent does not deny the petitioner's allegations.[13]
Instead, he offers the existence of Memorandum Circular No. 27, Series
of 1993 (MC No. 27, s. 1993) to exculpate himself from the charge
against
him. However, it does not escape our attention that the very
Memorandum
Circular that respondent cites before this Court provides that the
duties
enumerated in the consultancy contract are mainly advisory in nature.[14]
Without belaboring the
definition of "advisory,"[15]
it appears obvious to us that the tasks and duties that respondent
performed
pursuant to the consultancy contract cannot, by any stretch of
imagination,
be deemed merely advisory in nature.chanrobles virtuallaw libraryred
An adviser does not
exercise supervisory powers over LWUA employees nor does he issue
written
instructions to them. An adviser is not entitled to a seat in such
vital
LWUA committees like PBAC and the BOT Committee. Also, respondent's
continuous
receipt of honoraria for sitting as a member of certain LWUA
Committees,
particularly the BOT Committee, belies his claim that he is a mere
consultant
for the LWUA. The evidence on record clearly shows that the LWUA
Office Order implementing National Compensation Circular No. 75-95[16]
refers to payments of honoraria to officials/employees in consideration
of services rendered.cralaw:red
Most telling, in our
view, is respondent's acceptance of his 1998 Productivity Incentive
Bonus
(PIB). The Board of Trustees Resolution No. 26, Series of 1999,
of
the LWUA,[17]
which governed the release of the PIB, limited the entitlement to said
bonus only to "officials" and "employees" (permanent, temporary,
casual,
or contractual) of LWUA.cralaw:red
In sum, we find that
for all intents and purposes, respondent performed duties and functions
of a non-advisory nature, which pertain to a contractual employee of
LWUA.
As stated by petitioner in his reply,[18]
there is a difference between a consultant hired on a contractual basis
(which is governed by CSC M.C. No. 27, s. 1993) and a contractual
employee
(whose appointment is governed, among others, by the CSC Omnibus Rules
on Appointment and other Personnel Actions). By performing duties
and functions, which clearly pertain to a contractual employee, albeit
in the guise of an advisor or consultant, respondent has transgressed
both
letter and spirit of this Court's decree in Atienza.chanrobles virtuallaw libraryred
The lawyer's primary
duty as enunciated in the Attorney's Oath is to uphold the
Constitution,
obey the laws of the land, and promote respect for law and legal
processes.[19]
That duty in its irreducible minimum entails obedience to the legal
orders
of the courts. Respondent's disobedience to this Court's order
prohibiting
his reappointment to any branch, instrumentality, or agency of
government,
including government owned and controlled corporations, cannot be
camouflaged
by a legal consultancy or a special consultancy contract. By
performing
duties and functions of a contractual employee of LWUA, by way of a
consultancy,
and receiving compensation and perquisites as such, he displayed acts
of
open defiance of the Court's authority, and a deliberate rejection of
his
oath as an officer of the court. It is also destructive of the
harmonious
relations that should prevail between Bench and Bar, a harmony
necessary
for the proper administration of justice. Such defiance not only
erodes respect for the Court but also corrodes public confidence in the
rule of law.cralaw:red
What aggravates respondent's
offense is the fact that respondent is no ordinary lawyer. Having
served in the judiciary for eight (8) years, he is very well aware of
the
standards of moral fitness for membership in the legal
profession.
His propensity to try to "get away" with an indiscretion becomes
apparent
and inexcusable when he entered into a legal "consultancy" contract
with
the LWUA. Perhaps realizing its own mistake, LWUA terminated said
contract with respondent, but then proceeded to give him a "special
consultancy."
This travesty could not be long hidden from public awareness, hence the
instant complaint for disbarment filed by petitioner. Given the
factual
circumstances found by Commission on Bar Discipline, we have no
hesitance
in accepting the recommendation of the Board of Governors, Integrated
Bar
of the Philippines, that respondent be fined and suspended from the
practice
of law. The Code of Professional Responsibility, Rule 1.01,
provides
that a lawyer shall not engage in unlawful, dishonest, immoral or
deceitful
conduct. For violating the Code as well as transgressing his oath
as an officer of the court, his suspension for one (1) year and a fine
of ten thousand (P10,000) pesos are in order.chanrobles virtuallaw libraryred
WHEREFORE, respondent
Atty. Francisco Brillantes, Jr., is found liable for having willfully
violated
a lawful order of this Court in our decision of March 29, 1995 rendered
in A.M. No. MTJ-92-706, entitled Lupo Almodiel Atienza vs. Judge
Francisco
F. Brillantes, Jr. He is hereby SUSPENDED from the practice of law for
one (1) year and ordered to pay a FINE of Ten Thousand (P10,000.00)
Pesos,
with a STERN WARNING that a repetition of the same or similar conduct
shall
be dealt with more severely. Let a copy of this Decision be furnished
to
the Bar Confidant and the Integrated Bar of the Philippines and spread
on the personal records of respondent as well as circulated to all
courts
in the Philippines. This decision is immediately executory.cralaw:red
SO ORDERED.cralaw:red
Bellosillo, J.,
(Chairman),
Mendoza, Austria-Martinez, and Callejo, Sr., JJ., concur.cralaw:red
____________________________
Endnotes:
[1]
312 Phil. 939 (1995).
[2]
Supra, note 1 at 944.
[3]
Rollo, pp. 2-3.chanrobles virtuallaw libraryred
[4]
Id. at 13-17.chanrobles virtuallaw libraryred
[5]
Id. at 18-21.
[6]
Id. at 22-26.
[7]
Id. at 27-29.
[8]
Id. at 30-33.
[9]
Id. at 34-35.
[10]
Id. at 36-40.
[11]
Id. at 2-5.chanrobles virtuallaw libraryred
[12]
Declaring A National Policy Favoring Local Operation and Control of
Water
System; Authorizing the Formation of Local Water Districts and
Providing
for the Government and Administration of Such Districts; Chartering a
National
Administration to Facilitate Improvement of Local Water Utilities;
Granting
Said Administration Such Powers as are Necessary to Optimize Public
Service
From Water Utility Operations; and for Other Purposes.
[13]
Rollo, pp. 5-7.chanrobles virtuallaw libraryred
[14]
Rollo, p. 70. (Emphasis Supplied)
[15]
Advisory, according to Webster's International Dictionary, 3rd ed.,
means
"having or exercising power to advise."
[16]
Id. at 84-89.chanrobles virtuallaw libraryred
[17]
Id. at 71-73.
[18]
Id. at 77.
[19]
See also Code of Professional Responsibility, Canon 1. "A lawyer shall
uphold the Constitution, obey the laws of the land, and promote respect
for law and legal processes." |