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[A.C. No. 6467.� August 1, 2005]

CRUZ vs. GONZALES

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of this Court dated AUG 1 2005.

Adm. Case No. 6467 (Arturo S. Cruz vs. Atty. Ricardo D. Gonzales.)

Respondent Atty. Ricardo D. Gonzales (Atty. Gonzales) filed a complaint dated 22 October 2003 with the Professional Regulation Commission (PRC) against Florentina R. Antonio (Antonio), a certified public accountant who audited the financial statements of the Rural Green Bank of Caraga, Butuan City. Therein, he alleged that Antonio did not possess the independence required of an external auditor, considering that her "common-law husband," Dr. Arturo Cruz (Dr. Cruz), served as a consultant of the said bank when she audited the said financial statements. It was claimed that as a result, Antonio bore an indirect pecuniary interest in the bank, which she had failed to disclose pursuant to Sections 4 and 7 of the Rules of Professional Conduct as promulgated by the Board of Accountancy. Atty. Gonzales likewise assailed Antonio's professional competency and alluded to several instances in support of this claim.

On 28 April 2004, Atty. Gonzales filed with the PRC a Motion to Render Judgment on his complaint. Attached thereto was an Affidavit-Testimony, wherein he averred that Antonio was living with Dr. Cruz, who happened to be a married man, and that circumstance constituted immorality on her part.

On these, Dr. Cruz now seeks from this Court the disbarment or suspension of Atty. Gonzales. He characterizes the averment of immorality made in the Affidavit-Testimony as contrary to his rights to due process and fair play, considering that he was not a party to the case against Antonio before the PRC and thus was unable to answer the said allegations, which cast aspersion on his reputation and character. Dr. Cruz likewise asserted that these allegations warranted a separate criminal charge for libel. Dr. Cruz concludes that Atty. Gonzales violated Rule 1.01, Canon 1 of the Code of Professional Responsibility, which proscribes lawyers from engaging in lawful, dishonest, immoral and deceitful conduct.

In his Comment, Atty. Gonzales claims that the instant complaint is the third disbarment case filed against him by the same group of persons in control of the Rural Green Bank of Caraga who have likewise filed perjury and libel cases against him. He recounts that as minority stockholders of the said bank, he and his wife's family had filed a case with the Securities and Exchange Commission for inspection and accounting of expenses, and posits that the said disbarment and criminal cases were mere retaliatory actions of the bank. He argues that he never impleaded an additional ground of immorality through the Motion to Render Judgment, considering that he had already averred in his complaint the fact that Antonio and Dr. Cruz had a common-law relationship. Moreover, the allegation of that anomalous circumstances was integral to the complaint, which had alleged that Antonio, by reason of her relationship with Dr. Cruz, did not possess the requisite independence required of an external auditor. Pertinently, Atty. Gonzales claims that Dr. Cruz had also filed a libel case against him, now pending with the Manila City Prosecutor's Office arising from the same allegation; and that his allegations against Antonio and Dr. Cruz were privileged communications which enjoy protection of law.

There is no impediment to the immediate dismissal of this complaint. We certainly cannot see how Atty. Gonzales's allegation in the proceedings before the PRC of the "immoral" common-law relationship between Antonio and Dr. Cruz would constitute a violation of Dr. Cruz's rights to due process and "fair play." Dr. Cruz is not a respondent in the complaint before the PRC. The PRC has no jurisdiction to pass judgment on any aspect of Dr. Cruz's behavior, only that of Antonio's. He will not be inflicted sanction or punishment should the PRC find merit in the complaint. As such, none of his legal rights are at stake in the PRC complaint so as to require his participation in the aforestated action. The Court is not apt to impose severe penalties on a member of the Bar on the basis of a haphazard invocation of an alleged due process violation.

Anent Atty. Gonzales's allegations as to Dr. Cruz's conduct being unlawful, dishonest, immoral or deceitful, we note that such a legal conclusion can only obtain if the veracity of these allegations is established. For that purpose, the resolution of the pending complaint before the PRC, as well as the libel charge before the Manila City Prosecutor's Office, would be necessary to make a factual determination on the truth of the said allegation. Since such question could be well resolved in the said pending cases, it would be premature for the Court to independently adjudge such allegation to the effect of precluding the findings of the PRC and the Manila City Prosecutor's Office.

As to Atty. Gonzales's defense that his averments on the common-law relationship of Antonio and Dr. Cruz and his characterization thereof as immoral fall under the class of absolutely privileged communication, having been made in the course of judicial and administrative proceedings, this should be properly considered in the resolution of the libel charge. Suffice it to say for now that the protection of absolutely privileged communications shall be acknowledged and enforced by this Court even in disciplinary proceedings against members of the Bar.

The Complaint is DISMISSED for lack of merit.

Very truly yours,

(Sgd.) LUDICHI YASAY-NUNAG
Clerk of Court

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