April 2005 - Philippine Supreme Court Decisions/Resolutions
Philippine Supreme Court Jurisprudence
PCGG v. Sandiganbayan : 151809-12 : April 12, 2005 : J. Sandoval Gutierrez : En Banc : Concurring Opinion
EN BANC
[G.R. NOS. 151809-12. April 12, 2005]
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), Petitioner, v. SANDIGANBAYAN (Fifth Division), LUCIO C. TAN, CARMEN KHAO TAN, FLORENCIO T. SANTOS, NATIVIDAD P. SANTOS, DOMINGO CHUA, TAN HUI NEE, MARIANO TAN ENG LIAN, ESTATE OF BENITO TAN KEE HIONG (represented by TARCIANA C. TAN), FLORENCIO N. SANTOS, JR., HARRY C. TAN, TAN ENG CHAN, CHUNG POE KEE, MARIANO KHOO, MANUEL KHOO, MIGUEL KHOO, JAIME KHOO, ELIZABETH KHOO, CELSO RANOLA, WILLIAM T. WONG, ERNESTO B. LIM, BENJAMIN T. ALBACITA, WILLY CO, ALLIED BANKING CORP., ALLIED LEASING AND FINANCE CORPORATION, ASIA BREWERY, INC., BASIC HOLDINGS CORP., FOREMOST FARMS, INC., FORTUNE TOBACCO CORP., GRANDSPAN DEVELOPMENT CORP., HIMMEL INDUSTRIES, IRIS HOLDINGS AND DEVELOPMENT CORP., JEWEL HOLDINGS, INC., MANUFACTURING SERVICES AND TRADE CORP., MARANAW HOTELS AND RESORT CORP., NORTHERN TOBACCO REDRYING PLANT, PROGRESSIVE FARMS, INC., SHAREHOLDINGS, INC., SIPALAY TRADING CORP., VIRGO HOLDINGS & DEVELOPMENT CORP., and ATTY. ESTELITO P. MENDOZA, Respondents.
CONCURRING OPINION
SANDOVAL-GUTIERREZ, J.:
I join Mr. Justice Reynato S. Puno in his ponencia. Motions to disqualify counsel from representing their clients must be viewed with jaundiced eyes, for oftentimes they pose the very threat to the integrity of the judicial process.1 Such motions are filed to harass a particular counsel, to delay the litigation, to intimidate adversary, or for other strategic purposes. It therefore behooves the courts to always look for the parties' inner motivations in filing such motions.
This case illustrates the sad reality that the filing of motions for disqualification may be motivated, not by a fine sense of ethics or sincere desire to remove from litigation an unethical practitioner, but to achieve a tactical advantage.
The facts are undisputed.
Subsequent to the downfall of President Ferdinand E. Marcos in 1986, came the first edict2 of President Corazon C. Aquino creating the Presidential Commission on Good Government (PCGG) to recover the ill-gotten wealth of the Marcoses, their subordinates, and associates.
PCGG's initial target was Lucio Tan and the above-named private respondents (Tan et al., for brevity). It issued several writs of sequestration on their properties and business enterprises. To nullify such writs, Tan et al. filed with this Court petitions for certiorari, prohibition and injunction. On February 15, 1990, after comments thereon were submitted, this Court referred the cases to the Sandiganbayan for proper disposition. These cases were raffled to it Fifth Division, docketed as follows:ςηαñrοblεš �νιr†υαl �lαω �lιbrαrÿ
(a) Civil Case No. 0095 - Sipalay Trading Corp. v. PCGG, which seeks to nullify the PCGG's Order dated July 24, 1986 sequestering Lucio Tan's shares of stocks in Maranaw Hotels and Resort Corporation (Century Park Sheraton Hotel);chanroblesvirtuallawlibrary
(b) Civil Case No. 0096 - Lucio Tan, Mariano Tanenglian, Allied Banking Corp., Iris Holding and Development Corp., Virgo Holdings Development Corp. and Jewel Holdings, Inc. v. PCGG, which seeks to nullify the PCGG's Order dated June 19, 1986 sequestering the shares of stocks in Allied Banking Corporation held by and/or in the name of respondents Lucio Tan, Mariano Tanenglian, Iris Holding and Development Corp., Virgo Holdings Development Corp. and Jewel Holdings, Inc.;chanroblesvirtuallawlibrary
(c) Civil Case No. 0097 -- Lucio Tan, Carmen Khao Tan, Florencio T. Santos, Natividad Santos, Florencio N. Santos, Jr. and Foremost Farms, Inc. v. PCGG, which seeks to nullify the PCGG's Order dated August 12, 1986 sequestering the shares of stocks in Foremost Farms, Inc. held by and/or in the name of Lucio Tan, Carmen Khao Tan, Florencio T. Santos, Natividad Santos and Florencio N. Santos, Jr.;chanroblesvirtuallawlibrary
(d) Civil Case No. 0098 - Lucio Tan, Carmen Khao Tan, Mariano Tanenglian, Florencio T. Santos, Natividad Santos, Florencio N. Santos, Jr., Shareholdings, Inc. and Fortune Tabacco Corp. v. PCGG., which seeks to nullify the PCGG's Order dated July 24, 1986 sequestering the shares of stocks in Fortune Tobacco Corp. held by and /or in the name of Lucio Tan, Carmen Khao Tan, Mariano Tanenglian, Florencio T. Santos, Natividad Santos, Florencio N. Santos, Jr., Shareholdings, Inc.; andcralawlibrary
(e) Civil Case No. 0099 - Lucio Tan, Carmen Khao Tan, Mariano Tanenglian, Florencio T. Santos, Natividad Santos and Shareholdings, Inc. v. PCGG, which seeks to nullify the PCGG's Order dated July 24, 1986 sequestering the shares of stocks in Shareholdings, Inc. held by and/or in the name of Lucio Tan, Carmen Khao Tan, Mariano Tanenglian, Florencio T. Santos and Natividad Santos.
(f) Civil Case No. 0100 - Allied Banking Corp. v. PCGG, which seeks to nullify the PCGG's Search and Seizure Order dated August 13, 1986, issued on bank documents of Allied Banking Corp.3 ςrνll
Civil Cases Nos. 0096 and 0100 involve Tan, et al.'s shares of stocks in the Allied Banking Corporation (Allied Bank).
Meanwhile, on July 17, 1987, the PCGG and the Office of the Solicitor General (OSG) filed with the Sandiganbayan a complaint for 'reversion, reconveyance, restitution, accounting and damages' against Tan et al. This time, the case was raffled to the Second Division, docketed therein as Civil Case No. 0005. Among the properties sought to be reconveyed were Tan et al.'s shares of stocks in the Allied Bank.
Since 1987, Atty. Estelito P. Mendoza has been the counsel for Tan et al. in all the above cases. But it was not until February 5, 1991, or after four years, that the PCGG filed three (3) identical motions to disqualify Atty. Mendoza. In Civil Cases Nos. 0096-0099, PCGG filed a motion to disqualify him. It filed another similar motion in Civil Case No. 0100. The last motion was filed in Civil Case No. 0005. His disqualification was sought under Rule 6.03 of the Code of Professional Responsibility which reads:ςηαñrοblεš �νιr†υαl �lαω �lιbrαrÿ
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 each motion, PCGG alleged that Atty. Mendoza, then Solicitor General of the Marcos Administration, 'actively intervened in the liquidation of General Bank and Trust Company (GENBANK), subsequently acquired by Tan et al. and became Allied Bank. PCGG's allegations are similar in every aspect, thus:
(1) He was the former Solicitor General of the Republic of the Philippines for almost 14 years appearing on behalf of the Republic in multitudes of cases.
(2) The records show that, as then Solicitor General, Atty. Estelito P. Mendoza appeared as counsel for the Central Bank of the Philippines in Special Proceedings No. 107812, pending before the Regional Trial Court of, in connection with the Central Bank's Petition for assistance in the Liquidation of General bank and Trust Company (herein called 'Genbank', for brevity). The records also show that Defendant Lucio Tan and his group were the same persons who acquired Genbank's assets, liabilities and interest.
(3) Consequently, Atty. Mendoza's appearance as counsel for the Defendant herein runs counter to the long-cherished ethical canon of the legal profession which prohibits a counsel to appear in litigation adverse to the interests of his former client. Interpreting this sanction, jurisprudence has held, that:
The lawyer's obligation to represent the client with undivided fidelity and to keep his confidences, also forbid the lawyer from accepting retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed in him. (Canon of Professional Ethics, 6). The prohibition stands even if the adverse interest is very slight; neither is it material that the intention and motive of the attorney may have been honest. (5 Am. Jur. 296).
(4) The reason for the prohibition is obvious. Apart from the obligation to keep inviolate the prior relationship between counsel and his former client, such counsel obtains material information in confidence. Consequently, he should not be allowed to represent a party with adverse interest to his former client, arising out of the very transaction subject of the former relationship.
(5) In the case at bar, it should be stressed that Defendant Lucio Tan and his group acquired the assets and liabilities of Genbank. This manner of acquisition has been alleged to have been fraudulent, arbitrary and a product of collusion between them and the Central Bank officials. (Refer to Criminal Case No. 005 pending before this Honorable Court.) Atty. Mendoza's appearance as counsel for Defendants, clearly violates the Code of Professional Responsibility, which provides that:
A lawyer shall not after leaving the government service accept engagement or employment in connection with any matter in which he had intervened while in said service. (Code of Professional Responsibility, Canon 6, Rule 6.03)
(6) In the liquidation of Genbank and its eventual acquisition by Lucio Tan and his group, Atty. Mendoza, as SolicitorGeneral, personally advised the Central Bank officials on the procedure to bring about Genbank's liquidation. In the Memorandum for the Governor of the Central Bank dated March 29, 1977 (signed by the following subordinates of then CB Governor Gregorio Licaros, namely: Senior Deputy Governor Amado R. Brinas (deceased), Deputy Governor Jaime C. Laya, Deputy Governor & General Counsel Gabriel C. Singson, Special Asst. to the Governor Carlota P. Valenzuela, Asst. to the Governor Arnulfo B. Aurellano and Director Antonio T. Castro, Jr.), the following portion disclosed Atty. Mendoza's participation:
Immediately after said meeting, we had a conference with the Solicitor General (atty. Mendoza) and he advised that the following procedure should be taken:
(1) Management should submit a memorandum to the Monetary Board reporting that studies and evaluation had been made since the last examination of the bank as of August 31, 1976 and it is believed that the bank cannot be reorganized or placed in a condition so that it may be permitted to resume business with safety to its depositors and creditors and the general public.
(2) If the said report is confirmed by the Monetary Board, it shall order the liquidation of the bank and indicate the manner of its liquidation and approve a liquidation plan.
(3) The Central Bank shall inform the principal stockholders of Genbank of the foregoing decision to liquidate the bank and the liquidation plan approved by the Monetary Board.
(4) The Solicitor General shall then file a petition in the Court of First Instance reciting the proceedings which had been taken and praying the assistance of the Court in the liquidation of Genbank.
Plainly stated, it was Atty. Mendoza who was the legal author of the closure of Genbank and the eventual sale to Mr. Lucio Tan and his Group. Clearly, Atty. Mendoza should be disqualified in this case.
On April 22, 1991, the Sandiganbayan issued a Resolution4 in Civil Case No. 0005 denying PCGG's motion to disqualify Atty. Mendoza.
On May 7, 1991, the Sandiganbayan issued a Resolution5 in Civil Case No. 0100 also denying PCGG's similar motion.
Motions for reconsideration were filed but to no avail. The PCGG took no further action. These Resolutions, therefore, became final and executory.
Subsequently, in a Decision dated August 23, 1996, the Sandiganbayan jointly granted Tan et al.'s petitions in Civil Cases Nos. 0095 and 0100. On March 29, 1996, this Court, in G.R. NOS. 112708-096 affirmed the said Decision. The PCGG neither assigned as error nor mentioned the Sandiganbayan's denial of its motion to disqualify Atty. Mendoza in Civil Case No. 0100.
In the interim, the PCGG's motion to disqualify Atty. Mendoza in Civil Cases Nos. 0096-0099 remained pending with the Sandiganbayan. It was only on July 11, 2001, or after ten (10) years, that it denied the PCGG's motion by merely adopting its Resolution dated April 22, 1991 in Civil Case No. 0005 denying a similar motion, thus:ςηαñrοblεš �νιr†υαl �lαω �lιbrαrÿ
Acting on the PCGG's 'MOTION TO DISQUALIFY ATTY. ESTELITO P. MENDOZA AS COUNSEL FOR PETITIONER dated February 5,1991 which appears not to have been resolved by then Second Division of this Court, and it appearing that (1) the motion is exactly the same in substance as that motion filed in Civil Case No. 0005 as in fact, Atty. Mendoza in his 'OPPOSITION dated March 5, 1991 manifested that he was just adopting his opposition to the same motion filed by PCGG in Civil Case No. 0005 and (2) in the Court's Order dated March 7,1991, the herein incident was taken-up jointly with the said same incident in Civil Case No. 0005 (pp.134-135,Vol. I, Record of Civil Case No. 0096), this Division hereby reiterates and adopts the Resolution dated April 22, 1991 in Civil Case No. 0005 of the Second Division (pp.1418-1424, Vol. III, Record of Civil Case No. 0005) denying the said motion as its Resolution in the case at bar.7 ςrνll
The PCGG moved for the reconsideration of the foregoing Resolution, but was denied. In the Resolution dated December 5, 2001, the Sandiganbayan ruled:ςηαñrοblεš �νιr†υαl �lαω �lιbrαrÿ
Acting on respondent PCGG's 'MOTION FOR RECONSIDERATION dated August 1, 2001 praying for the reconsideration of the Court's Resolution dated July 12, 2001 denying its motion to disqualify Atty. Estelito P. Mendoza as counsel for petitioners, to which petitioners have filed an 'OPPOSITION TO MOTION FOR RECONSIDERATION DATED AUGUST 1, 2001 dated August 29, 2001, as well as the respondent's 'REPLY (To Opposition to Motion for Reconsideration) dated November 16, 2001, it appearing that the main motion to disqualify Atty. Mendoza as counsel in these cases was exactly the same in substance as that motion to disqualify Atty. Mendoza filed by the PCGG in Civil Case No. 0005 (re:Republic v. Lucio Tan, et al.) and the resolutions of this Court (Second Division) in Civil Case No. 0005 denying the main motion as well as of the motion for reconsideration thereof had become final and executory when PCGG failed to elevate the said resolutions to the Supreme Court, the instant motion is hereby DENIED.8 ςrνll
Hence, the PCGG's present petition for certiorari and prohibition alleging that the Sandiganbayan committed grave abuse of discretion in denying its motion to disqualify Atty. Mendoza in Civil Cases Nos. 0096-0099.
Mr. Justice Romeo J. Callejo, Sr., in his Dissent, granted the petition. On the procedural issues, he ruled that the assailed Resolutions dated July 11 and December 5, 2001 denying PCGG's motion to disqualify Atty. Mendoza are interlocutory orders, hence, in challenging such Resolutions, certiorari is the proper remedy, not appeal, as invoked by Tan et al. Based on the same premise, he likewise rejected Tan et al.'s claim that the Resolution dated April 22, 1991 in Civil Case No. 0005 constitutes a bar to similar motions to disqualify Atty. Mendoza under the doctrine of res judicata.
On the substantive aspect, Mr. Justice Callejo's Dissent states that Atty. Mendoza violated Rule 6.03 of the Code of Professional Responsibility. According to him, Atty. Mendoza's acts of (a) advising the Central Bank on how to proceed with the liquidation of GENBANK, and (b) filing Special Proceedings No. 107812, a petition by the Central Bank for assistance in the liquidation of GENBANK, with the then Court of First Instance (CFI) of, constitute 'intervention. And that while it may be true that his posture in Civil Cases Nos. 0096-0099 is not adverse to the interest of the Central Bank, still, he violated the proscription under the 'congruent-interest representation conflict doctrine.
Crucial to the resolution of the present controversy are the following queries:
(1) Is certiorari the proper remedy to assail the Sandiganbayan Resolutions dated July 11 and December 5, 2001 denying the PCGG's motion to disqualify Atty. Mendoza in Civil Cases Nos. 0096-0099?
(2) May Sandiganbayan Resolution dated April 22, 1991 in Civil Case No. 0005 be considered a bar to similar motions to disqualify Atty. Mendoza under the doctrine of res judicata?
(3) Does Atty. Mendoza's participation in the liquidation of GENBANK constitute intervention?chanroblesvirtualawlibrary
There are some important points I wish to stress at this incipient stage. I believe they should be considered if we are to arrive at a fair resolution of this case. The scattershot manner in which the PCGG filed the various motions to disqualify Atty. Mendoza shows its intent to harass him and Tan et al. It may be recalled that the PCGG filed three (3) identical motions, one in Civil Cases Nos. 0096-0099, another in Civil Case No. 0100 and the last one in Civil Case No. 0005. Of these cases, only Civil Cases Nos. 0096, 0100 and 0005 actually involve Tan et al.'s shares of stocks in the Allied Bank. Civil Cases Nos. 0097, 0098 and 0099 have entirely different subject matter. Thus, insofar as these cases are concerned, the motions to disqualify lack substantive merit. Why then would the PCGG file identical motions to disqualify Atty. Mendoza in these unrelated cases? Its intention is suspect. To subject Tan et al. to numerous and baseless motions to disqualify their lawyer is, no doubt, a form of harassment.
As this juncture, it is important to emphasize that in evaluating motions to disqualify a lawyer, our minds are not bound by stringent rules. There is room for consideration of the combined effect of a party's right to counsel of his own choice, an attorney's interest in representing a client, the financial burden on a client of replacing disqualified counsel, and any tactical abuse underlying a disqualification proceeding.9
I.
Whether the PCGG's proper
remedy to assail the Sandiganbayan
Resolutions dated July 11 and
December 5, 2001
is appeal, not
certiorari.
The bottom line of this issue lies on how we categorize an order denying a motion to disqualify an opposing party's counsel. Is it interlocutory or final?chanroblesvirtualawlibrary
An order is deemed final when it finally disposes of the pending action so that nothing more can be done with it in the lower court.10 On the other hand, an interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.11 ςrνll
In Antonio v. Samonte,12 this Court defined a final judgment, order or decree as' 'one that finally disposes of, adjudicates, or determines the rights, or some rights or rights of the parties, either on the entire controversy or on some definite and separate branch, thereof and which concludes them until it is reversed or set aside x x x. In De la Cruz v. Paras,13 it was held that a court order is final in character if 'it puts an end to the particular matter resolved or settles definitely the matter therein disposed of, such that no further questions can come before the court except the execution of the order. In Day v. Regional Trial Court of Zamboanga City,14 this Court ruled that an order which decides an issue or issues in a complaint is final and appealable, although the other issue or issues have not been resolved, if the latter issues are distinct and separate from others.
With the foregoing disquisition as basis, it is my view that an order denying a motion to disqualify counsel is final and, therefore, appealable. The issue of whether or not Atty. Mendoza should be disqualified from representing Tan et al. is separable from, independent of and collateral to the main issues in Civil Cases Nos. 0096-0099. In short, it is separable from the merits. Clearly, the present Petition for Certiorari, to my mind, is dismissible.
II. Whether
the Resolution dated April
22,
1991 in Civil Case No. 0005
constitutes
a bar to similar motions to
disqualify
Atty. Mendoza under the
doctrine of res judicata.
I am convinced that the factual circumstances of this case justify the application of res judicata.
The ponente refuses to apply res judicata on the ground that the Sandignbayan Resolution dated April 22, 1991 in Civil Case No. 0005 is just an interlocutory order.
Assuming arguendo that an order denying a motion to disqualify Atty. Mendoza is indeed an intelocutory order, still, I believe that res judicataapplies.
It will be recalled that on August 23, 1996, the Sandiganbayan rendered a Decision granting Tan et al.'s petitions in Civil Cases Nos. 0095 and 0100. Such Decision reached this Court in G.R. NOS. 112708-09.15 On March 29, 1996, we affirmed it. The PCGG could have assigned or raised as error in G.R. NOS. 112708-09 the Sandiganbayan Resolution dated May 7, 1991 in Civil Case No. 0100 denying its motion to disqualify Atty. Mendoza but it did not. The fact that a final Decision therein has been promulgated by this Court renders the Resolution dated May 7, 1991 beyond review. The PCGG may not relitigate such issue of disqualification as it was actually litigated and finally decided in G.R. NOS. 112707-09.16 To rule otherwise is to encourage the risk of inconsistent judicial rulings on the basis of the same set of facts. This should not be countenanced. Public policy, judicial orderliness, economy of judicial time and the interest of litigants, as well as the peace and order of society, all require that stability should be accorded judicial rulings and that controversies once decided shall remain in repose, and that there be an end to litigation.17
III. Whether Atty.
Mendoza's
participation
in the liquidation of
GENBANK constitutes intervention.
As stated earlier, Atty. Mendoza is sought to be disqualified under Rule 6.03 of the Code of Professional Responsibility which states:ςηαñrοblεš �νιr†υαl �lαω �lιbrαrÿ
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 determining whether Atty. Mendoza committed a breach of this Rule, certain factual predicates should be established, thus: (a) in connection with what 'matter has Atty. Mendoza accepted an engagement or employment after leaving the government service?; (b) in connection with what 'matter did he intervene while in government service?; and (c) what acts did he particularly perform in 'intervening in connection with such 'matter?chanroblesvirtualawlibrary
The PCGG insists that Atty. Mendoza, as Solicitor General, 'actively intervened in the closure and liquidation of GENBANK. As primary evidence of such intervention, it cited his act of filing Special Proceedings No. 107812 with the then Court of First Instance (CFI) of; and the Memorandum dated March 29, 1977 of certain key officials of the Central Bank stating that he (Atty. Mendoza) advised them of the procedure to be taken in the liquidation of GENBANK and that he was furnished copies of pertinent documents relating to such liquidation.
Tan et al. denied Atty. Mendoza's alleged 'intervention, claiming that when he filed Special Proceedings No. 107812 with the CFI of, the decision to prohibit GENBANK from doing business had already been made by the Central Bank Monetary Board. Also, Atty. Mendoza, in appearing as their counsel in Civil Cases Nos. 0096-0099, does not take a position adverse to his former client, the Central Bank.
The first concern in assessing the applicability of the Rule is the definition of 'matter. The American Bar Association Committee on Ethics and Professional Responsibility stated in its Formal Opinion 342 that:ςηαñrοblεš �νιr†υαl �lαω �lιbrαrÿ
Although a precise definition of 'matter as used in the Disciplinary Rule is difficult to formulate, the term seems to contemplate a discrete and isolatable transaction or set of transactions between identifiable parties. Perhaps the scope of the term 'matter may be indicated by examples. The same lawsuit or litigation is the same matter. The same issue of fact involving the same parties and the same situation or conduct is the same matter. By contrast, work as a government employee in drafting, enforcing or interpreting government or agency procedures, regulations, or laws, or in briefing abstract principles of law, does not disqualify the lawyer under DR 9-101 (B) from subsequent private employment involving the same regulations, procedures, or points of law; the same 'matter is not involved because there is lacking the discrete, identifiable transaction or conduct involving a particular situation and specific parties.
In the case at bar, the Court's task is to determine whether Special Proceedings No. 107812 falls within the concept of 'matter. This must be analyzed in relation with Civil Case No. 0096. Anent Civil Cases Nos. 0097, 0098 and 0099, there is no doubt that they do not involve the shares of stocks of Tan et al. in Allied Bank. Thus, only Special Proceedings No. 107812 and Civil Case No. 0096 must be considered.
Special Proceedings No. 107812 is a 'petition by the Central Bank for Assistance in the Liquidation of General Bank and Trust Company filed by Atty. Mendoza as Solicitor General. The parties therein are the Central Bank of the Philippines and Arnulfo B. Aurellano, on the one hand, and the Worldwide Insurance & Surety Company, Midland Insurance Corporation, Standard Insurance Co., Inc and General Bank & Trust Company, on the other. The issues, among others, are whether or not the Central Bank acted in good faith in ordering the liquidation of GENBANK; and, whether the bidding for GENBANK is a sham.
Civil Case No. 0096 is for the annulment of various sequestration orders issued by the PCGG over Tan et al.'s properties. The parties therein are Lucio Tan, Mariano Tanenglian, Allied Banking Corporation, Iris Holdings & Development Corp., Virgo Holdings & Development Corp., and Jewel Holdings, Inc., as petitioners, and the PCGG, as respondent. The issues here are 'whether the Sequestration Order issued by the PCGG on June 19, 1986 over the shares of stocks in Allied Bank of Lucio C. Tan and his co-petitioners in Civil Case No. 0096 was issued without notice, hearing and evidence.
A careful perusal of the above distinctions shows that the two cases are different in all aspects, such as the parties, issues, facts and relief sought. Special Proceedings No. 107812 cannot therefore be considered a 'matter in connection with which Atty. Mendoza accepted his engagement as counsel in Civil Case No. 0096. The connection between the two cases, if there be, is very minimal as to give rise to the application of the proscription.
As aptly stated by Justice Puno:ςηαñrοblεš �νιr†υαl �lαω �lιbrαrÿ
But more important, the 'matter involved in Sp. Proc. No. 107812 is entirely different from the 'matter involved in Civil Case No. 0096. Again the bald facts speak for themselves. It is given that Atty. Mendoza had nothing to do with the decision of the Central Bank to liquidate GENBANK. It is also given that he did not participate in the sale of GENBANK to Allied Bank. The 'matter where he got himself involved was in informing Central Bank on the procedure provided by law to liquidate GENBANK through the courts and in filing the necessary petition in Sp. Proc. No. 107812 in the then Court of First Instance. The subject 'matter Sp. Proc. No. 107812, however, is not the same nor related to but different from the subject 'matter in Civil Case No. 0096. Civil Case No. 0096 involves the sequestration of the stocks owned by Tan, et al., in Allied Bank on the alleged ground that they are ill- gotten. The case does not involve the liquidation of GENBANK. Nor does it involve the sale of GENBANK to Allied Bank. Whether the shares of stocks of the reorganized Allied Bank are ill-gotten is far removed from the issue of the dissolution and liquidation of GENBANK. GENBANK was liquidated by the Central Bank due, among others, to the banking malpractices of its owners and officers. In other words, the legality of the liquidation of GENBANK is not an issue in the sequestration cases. Indeed, the jurisdiction of the PCGG does not include the dissolution and liquidation of banks. It goes without saying that Code 6.03 of the Code of Professional Responsibility cannot apply to Atty. Mendoza because his alleged intervention while a Solicitor General in Sp. Proc. No. 107812 is an intervention on a matter different from the matter involved in Civil Case No. 0096.
As Solicitor General, Atty. Mendoza represented the Republic of the Philippines in every case where it was involved. As a matter of practice and procedure, he signed every pleading prepared by his Associates. Taking this into consideration, will it be just to disqualify him in all the cases containing pleadings bearing his signature? The answer must be in the negative. His disqualification might be too harsh a penalty for one who had served the government during the best years of his life and with all his legal expertise.
Webster Dictionary18 defines 'intervene as 'to come or happen between two points of time or events; 'to come or be in between as something unnecessary or irrelevant; or 'to come between as an influencing force. The ponencia defines 'to intervene as 'to enter or appear as an irrelevant or extraneous feature or circumstance. 'Intervention is interference that may affect the interest of others. Corollarily, the counterpart of Rule 6.03 is the Disciplinary Rule (DR) 9-101 (B) of the American Bar Association (ABA), thus:ςηαñrοblεš �νιr†υαl �lαω �lιbrαrÿ
A lawyer shall not accept private employment in a manner in which he had 'substantial responsibility while he was a public employee.
Substantial responsibility envisages a lawyer having such a heavy responsibility for the matter in question that it is likely he becomes personally and substantially involve in the investigative or deliberative processes regarding the matter.19 Since the word 'intervene has two connotations, one affecting interest of others and one done merely in influencing others, Rule 6.03 should be read in the context of the former. To interpret it otherwise is to enlarge the coverage of Rule 6.03. Surely, this could not have been the intention of the drafters of our Code of Professional Responsibility.
Further, that Atty. Mendoza was furnished copies of pertinent papers relative to the liquidation of GENBANK is not sufficient to disqualify him in Civil Case No. 0096. In Laker Airway Limited v. Pan American World Airways,20 it was held that:
Like the case law, policy considerations do not support the disqualification of a government attorney merely because during his government service he had access to information about a corporation which subsequently turned out to become an opponent in a private lawsuit . If the law were otherwise, the limiting language of the Disciplinary Rule could be bypassed altogether by the simple claim that an attorney may have viewed confidential information while employed by the government, and government lawyers would face perpetual disqualification in their subsequent practices.
In fine, I fully concur in Justice Puno's Dissent that 'Rule 6.03 of the Code of Professional Responsibility cannot apply to Atty. Mendoza because his alleged intervention while a Solicitor General in Special Proceedings No. 107812 is an intervention in a matter different from the matter involved in Civil Case No. 0096.
WHEREFORE, I vote to dismiss the instant Petition for Certiorari.
Endnotes:
1 Gregori v. Bank of America, 207 Cal.App. 3d 291 (1989); McPhearson v. Michaels Co., No. CO34390, March 4, 2002.
2 Executive order No. 1, issued on February 28, 1986.
3 Resolution, at 3-4. See also Memorandum for Respondents, rollo, at 397-398.
4 Attachment 'F of the Petition, rollo, at 57-63. Civil Case No. 0005 involved the PCGG's and the OSG's complaint for 'reversion, reconveyance, restitution, accounting and damages against Tan et al.'s shares of stock in Allied Bank.
5 Comment on the Petition, rollo, at 148. Civil Case No. 0100 involved Allied Bank's petition seeking to nullify PCGG's Search and Seizure Order against Tan, et al.'s shares of stock.
6 Entitled Republic of the Philippines, represented by Presidential Commission on Good Government, Petitioner, v. Sandiganbayan, Sipalay Trading Corporation and Allied Banking Corporation, Respondents. 255 SCRA 438, March 29, 1996.
7 Attachment 'A of the Petition, rollo, at 42.
8 Attachment 'A-1 of the Petition, rollo, at 43.
9 7 Am Jur 2d '197 citing Higdon v. Superior Court (5th Dist) 227 Cal App 3d 1667, 278 Cal Rptr 588, 91 CDOS 1622, 91 Daily Journal DAR 2595.
10 Mejia v. Alimorong, 4 Phil. 573, 1905, Insular Government v. Bishop of Nueva Segovia, 17 Phil. 487, (1910); People v. Makaraig, 54 Phil. 904, 1930.
11 Tambaoan v. Court of Appeals, 365 SCRA 359 (2001); Halili v. Court of Industrial Relations, 22 SCRA 785 (1968).
12 111 Phil. 699 (1961).
13 69 SCRA 556, G.R. No. L-41053. February 27, 1976.
14 191 SCRA 610, G.R. No. 79119. November 22, 1990.
15 Entitled Republic of the Philippines, represented by Presidential Commission on Good Government, v. Sandiganbayan, Sipalay Trading Corporation and Allied Banking Corporation ,255 SCRA 438, March 29, 1996.
16 46 Am Jur 2d - 516.
17 46 Am Jur 2d - 515
18 Second Edition, New Twentieth Century Dictionary, Unabridged, 183.
19 ABA Formal Opinion 342 (November 24, 1975.
20 103 F.R.D. 22; 1984 U.S. Dist. LEXIS 15513, June 26, 1984.
