Bruselas vs. Mallari

The Supreme Court retains disciplinary jurisdiction over already-disbarred lawyers for acts committed during the subsistence of their membership in the bar, but a subsequent administrative complaint based on the same unethical acts already considered as grounds for a prior disbarment must be dismissed. A disbarred lawyer may no longer serve a subsequent suspension, but such penalty may nevertheless be imposed for the sole purpose of recording the same in the disbarred lawyer's personal file in the Office of the Bar Confidant, which will be taken into consideration if and when the disbarred lawyer applies for reinstatement.

Atty. Eligio P. Mallari was a lawyer and former Commissioner of the Commission on Human Rights who had been engaged in protracted litigation over certain lots in San Fernando, Pampanga, involving a consignation case against Philippine National Bank (PNB). The underlying dispute concerned a Deed of Promise to Sell over Lots 3664 and 3843, with Atty. Mallari claiming to be the registered owner since 2010 and 2012. The case arose from a Privileged Communication dated November 12, 2012, sent by Associate Justice Apolinario D. Bruselas, Jr. of the Court of Appeals to the Supreme Court, attaching photocopied clippings of an advertisement in which Atty. Mallari challenged Justice Bruselas to a televised public debate on the topic of whether the CA's Amended Decision in CA-G.R. SP. No. 106838 was "VOID."

Atty. Eligio P. Mallari, a lawyer and former Commissioner of the Commission on Human Rights, was involved in a consignation case against Philippine National Bank (PNB) to implement a Deed of Promise to Sell over certain lots located in San Fernando, Pampanga. The case stemmed from Civil Case No. Q-06-58366, in which the trial court ordered PNB to accept the payment tendered by Atty. Mallari for the lots. PNB filed a notice of appeal, which was initially dismissed by the CA Fourth Division in a Decision dated August 11, 2009. However, the CA Special Fourth Division of Five issued an Amended Decision dated February 24, 2011, penned by Justice Apolinario D. Bruselas, Jr., which reinstated PNB's notice of appeal.

On October 29, 2012, Atty. Mallari caused the publication of an advertisement in the November 7, 2012 edition of the Philippine Daily Inquirer and the November 8, 2012 edition of the Philippine Star, challenging Justice Bruselas to a "public and televised debate" on the topic: "The Court of Appeals' SPECIAL FOURTH DIVISION OF FIVE AMENDED DECISION, dated 24 February 2011, in CA-GR.SP. No. 106838, penned by Justice Apolinario D. Bruselas, Jr. is VOID." The advertisement stated that Atty. Mallari would pay for the television expenses upon acceptance of the challenge. Atty. Mallari likewise admitted to another advertisement published in SunStar on January 7, 2014, challenging nine CA justices to a debate.

Atty. Mallari admitted that he had filed a Petition for Review on Certiorari assailing the Amended Decision before the Supreme Court, docketed as G.R. No. 204743, which was still pending at the time of the present proceedings. He also admitted to circulating copies of the Amended Decision and his arguments to "almost all the Members of the Bar." In his March 2017 Compliance, Atty. Mallari argued that the bases for his administrative complaints against the CA justices were discernible from the RTC's rulings and orders, and maintained that PNB's notice of appeal and petition for certiorari were filed out of time. He openly admitted that he challenged not only Justice Bruselas but also eight other CA justices who participated in the adjudication of CA-G.R. SP. No. 106838 to a public debate, arguing that the debate challenge was an honest, bona fide move to uphold the rule of law and cleanse the judiciary of "misfits."

The Investigating Commissioner of the IBP-CBD found that Atty. Mallari did not deny the accusations of disrespect leveled against him, and instead of refuting the allegations, he reiterated his charges and grievances against Justice Bruselas and the CA. The Investigating Commissioner found that Atty. Mallari's debate challenge and accusations went way beyond the bounds of ethically acceptable criticism, violative of Canon 11 and Rule 11.03 of the Code of Professional Responsibility, and recommended suspension for two years. The IBP Board of Governors approved and adopted this recommendation.

• Violation of Respect Due to Courts: Justice Bruselas, through the Privileged Communication, presented the published debate challenge as evidence that Atty. Mallari violated the Code of Professional Responsibility by publicly challenging a sitting magistrate to a debate on the merits of a decision.
• Sub Judice Violation: The complaint highlighted that Atty. Mallari's debate challenge concerned a decision that was still pending review before the Supreme Court in G.R. No. 204743, making the public challenge a violation of the sub judice rule.

• Bona Fide Move to Uphold Rule of Law: Atty. Mallari argued that the debate challenge was an honest, bona fide move to uphold the rule of law and cleanse the judiciary of "misfits," which he resorted to after the dismissal of his administrative complaints against the CA justices who ruled against him.
• Ineffectiveness of Judicial Remedies: Atty. Mallari claimed that based on the unlawful delays and developments of the cases involving Lots 3664 and 3843, the availment of judicial remedies was not effective in favor of the Spouses Eligio P. Mallari and Marcelina H. Mallari, who had been the registered owners since May 19, 2010 (Lot 3843) and February 16, 2012 (Lot 3664).
• Right to Criticize: Atty. Mallari claimed it was his right as an officer of the court to mount such challenge because the justice issued a "VOID" decision and resolution.
• Relitigation of Administrative Complaints: Atty. Mallari admitted to using the debate challenge as a new opportunity to relitigate the already-dismissed administrative complaints that he filed against the CA justices.

• Violation of Ethical Duties: Whether Atty. Mallari's public debate challenge against Justice Bruselas violated Rule 138, Section 20(b) of the Rules of Court and Canons 1, 10, and 11, and Rules 1.02, 10.03, and 11.03 of the Code of Professional Responsibility.
• Sub Judice Rule: Whether Atty. Mallari's publication of the debate challenge in two newspapers of general circulation violated the sub judice rule under Canon 13, Rule 13.02 of the Code of Professional Responsibility.
• Effect of Prior Disbarment: Whether the present administrative complaint should be dismissed on the ground that the unethical acts subject thereof had already been passed upon and considered as grounds for Atty. Mallari's disbarment in Genato vs. Atty. Mallari.

• Violation of Ethical Duties: Yes. Atty. Mallari's public debate challenge against Justice Bruselas violated Rule 138, Section 20(b) of the Rules of Court, as amended, as well as Canons 1, 10, and 11, and Rules 1.02, 10.03, and 11.03 of the Code of Professional Responsibility. The debate challenge publicized his disrespect not only to the members of the CA but also to the very concept of appellate procedure.
• Sub Judice Rule: Yes. By publishing in two newspapers of general circulation a debate challenge containing statements regarding—and if accepted, would necessarily involve a public discussion of—the merits of a pending case, Atty. Mallari violated the sub judice rule as embodied in Canon 13, Rule 13.02 of the Code of Professional Responsibility.
• Effect of Prior Disbarment: Yes. The present complaint was dismissed on the sole ground that the unethical acts subject thereof had already been passed upon and considered as grounds for Atty. Mallari's disbarment in a previous case, pursuant to Pabalan vs. Atty. Salva. However, the decision was ordered made part of Atty. Mallari's disciplinary record for consideration in case he applies for reinstatement.

• Violation of Ethical Duties: The Court found that Atty. Mallari plainly admitted to writing and causing the publication in two national newspapers of a public debate challenge against an incumbent magistrate of the Court of Appeals, on the topic of the merits of a decision rendered by said magistrate. By repeatedly describing the Amended Decision as "void" despite the pendency of his own appeal from the same, and by demanding that Justice Bruselas defend the merits of said decision through a public debate, Atty. Mallari publicized his disrespect not only to the members of the CA but also to the very concept of appellate procedure. The Court noted that Atty. Mallari's vituperative statements and presumptuous challenges against appellate judges, made not only in newspapers of general circulation but even in pleadings before the Supreme Court, revealed his disrespect and distrust not only to the Court of Appeals but to the whole judiciary. The Court reiterated that criticism and analysis of judicial rulings by lawyers must be made within ethically acceptable bounds, and that lawyers are obliged to exercise these rights in the spirit of good faith, decency, and propriety, in a manner which does not degrade public confidence in the judicial system. The Court quoted the principle that "a wide chasm exists between fair criticism, on the one hand, and abuse and slander of courts and the judges thereof, on the other," and that "intemperate and unfair criticism is a gross violation of the duty of respect to courts."
• Sub Judice Rule: The Court found that the debate challenge, which explicitly identified PNB as the opposing party and described its remedy as a "lost appeal," was clearly calculated to arouse public opinion for Atty. Mallari and against PNB. Even as Atty. Mallari admitted to having a pending challenge against the Amended Decision before the Supreme Court in G.R. No. 204743, he likewise admitted to circulating copies of the said decision, as well as the arguments he interposed, to other lawyers. The Court emphasized that the issue of whether the Amended Decision is valid or void had been brought under the jurisdiction of the Supreme Court at the instance of Atty. Mallari, and that it is the Court alone that is authorized by law to render a final ruling in the matter. Without such final ruling, Atty. Mallari's incessant and insistent characterization of the Amended Decision as void was merely self-serving. Challenging the ponente of a decision to public debates on the merits of the same even while it is pending review before a superior court betrays the challenger's contempt, disrespect, and distrust of both the deciding court and the reviewing court.
• Effect of Prior Disbarment: The Court noted that Atty. Mallari had already been stricken from the Roll of Attorneys pursuant to the 2019 ruling in Genato vs. Atty. Mallari, and that the debate challenge against Justice Bruselas formed part of the bases for his disbarment therein. The Court explained that bar discipline proceedings are not punitive in nature but are a public welfare measure meant to protect the public from persons who are ethically unfit to be part of the legal profession. The Court held that the double jeopardy principle does not apply to bar discipline cases, and that the Supreme Court retains disciplinary jurisdiction over already-disbarred lawyers for acts committed during the subsistence of their membership in the bar. However, citing Pabalan vs. Atty. Salva, the Court held that the imposition of an unservable penalty for recording purposes presupposes the commission of an infraction distinct and separate from that which the lawyer was previously disbarred. Since the debate challenge against Justice Bruselas was only one of several ethically suspect acts which contributed to his disbarment in Genato, and the pleadings and evidence submitted in the present case involved certain aspects of the debate challenge which were not fully considered in Genato, the Court nevertheless ruled that the present decision must be made part of Atty. Mallari's disciplinary record, for consideration in case he applies for reinstatement to the Roll of Attorneys, and to apprise the bench, the bar, and all other concerned parties of the full ethical implications of his public vituperations against Justice Bruselas and his colleagues in the appellate court.

• Doctrine of Continuing Jurisdiction over Disbarred Lawyers — The Supreme Court retains disciplinary jurisdiction over suspended or disbarred lawyers for acts committed during the subsistence of their membership in the bar. A judgment of suspension or disbarment is always subject to change or modification by the court, which may downgrade a penalty of disbarment to one of suspension, lift a suspension, reinstate a disbarred lawyer, or order such disbarred lawyer to pay a fine. This continuing jurisdiction is based on the Supreme Court's constitutional power to promulgate rules and regulations concerning admission to the practice of law. In this case, the Court applied this doctrine to hold that while Atty. Mallari could no longer serve a subsequent suspension, the penalty could nevertheless be imposed for the sole purpose of recording the same in his personal file in the Office of the Bar Confidant.
• Doctrine of Non-Punitive Nature of Bar Discipline — Bar discipline proceedings are not punitive in nature; rather, they are a public welfare measure meant to protect the public from persons who are ethically unfit to be part of the legal profession. Bar discipline measures likewise protect not only the courts but the legal system as a whole by ensuring that the officers of the courts and duly-authorized advocates of the public are competent, honorable, and reliable. Due to their non-punitive nature, disbarments and other bar discipline sanctions are not considered punishments for purposes of the double jeopardy clause. The Court applied this doctrine to hold that the double jeopardy principle does not apply to bar discipline cases.
• Doctrine of Distinct Infraction Requirement for Post-Disbarment Sanctions — The imposition of an unservable penalty for recording purposes presupposes the commission of an infraction distinct and separate from that which the lawyer was previously disbarred. Citing Pabalan vs. Atty. Salva, the Court held that a disbarment complaint based on the same act as a previous disbarment complaint for which the lawyer had already been sanctioned must be dismissed. In this case, since the debate challenge against Justice Bruselas was one of the acts considered in Atty. Mallari's disbarment in Genato, the present complaint was dismissed, but the decision was ordered made part of his disciplinary record.
• Doctrine of Ethically Acceptable Criticism of Judicial Rulings — While lawyers are encouraged to advocate for their causes with the utmost zeal and passion, they are nevertheless bound by law and ethics to avoid opprobrium and baseless accusations against judges and tribunals who rule against them and their clients. Criticism and analysis of judicial rulings by lawyers must be made within ethically acceptable bounds. As officers of the court, lawyers are given the freedom not only to air grievances against judges and magistrates but also to analyze, dissect, and criticize judicial decisions. However, lawyers are likewise obliged to exercise these rights in the spirit of good faith, decency, and propriety, in a manner which does not degrade public confidence in the judicial system. The cardinal condition of all such criticism is that it shall be bona fide and shall not spill over the walls of decency and propriety. A wide chasm exists between fair criticism, on the one hand, and abuse and slander of courts and the judges thereof, on the other. Intemperate and unfair criticism is a gross violation of the duty of respect to courts.

• "To curtail the right of a lawyer to be critical of the foibles of courts and judges is to seal the lips of those in the best position to give advice and who might consider it their duty to speak disparagingly. 'Under such a rule,' so far as the bar is concerned, 'the merits of a sitting judge may be rehearsed, but as to his demerits there must be profound silence.' But it is the cardinal condition of all such criticism that it shall be bona fide, and shall not spill over the walls of decency and propriety. A wide chasm exists between fair criticism, on the one hand, and abuse and slander of courts and the judges thereof, on the other. Intemperate and unfair criticism is a gross violation of the duty of respect to courts. It is such a misconduct that subjects a lawyer to disciplinary action." — This passage from In the Matter of the Proceedings for Disciplinary Action Against Atty. Almacen, et al., v. Yaptinchay articulates the canonical formulation of the limits of lawyer criticism of judicial rulings, which the Court applied to find Atty. Mallari's debate challenge beyond ethically acceptable bounds.
• "A lawyer must respect the duly constituted authority. It is a lawyer's sworn duty to maintain a respectful attitude towards the courts. There is, thus, no rhyme or reason for [Atty. Mallari]'s reprehensible and arrogant behavior in challenging a Justice of the Court of Appeals to a public debate. Even assuming that the decision rendered by a magistrate is, according to the losing lawyer, erroneous and completely devoid of basis in law, evidence, and jurisprudence, a person, let alone a lawyer, should not act contemptuously by challenging the judge or justice concerned to a public debate that would unavoidably expose him or her and the entire Judiciary which he or she represents, to public ridicule and mockery." — This passage from Genato v. Atty. Mallari was approvingly quoted by the Court to explain why the debate challenge constituted a violation of the lawyer's duty to respect the courts, and formed part of the basis for Atty. Mallari's disbarment.
• "Bar discipline proceedings are not punitive in nature. Rather, they are a public welfare measure, in that they are meant to protect the public from persons who are ethically unfit to be part of the legal profession. Bar discipline measures likewise protect not only the courts, but the legal system as a whole, by ensuring that the officers of the courts and duly-authorized advocates of the public are competent, honorable, and reliable. Thus, bar discipline proceedings are in essence, an examination of one's fitness to practice law, and an investigation into the character of a lawyer, as well as his or her misconduct." — This passage articulates the non-punitive nature of bar discipline proceedings, which the Court relied upon to explain why the double jeopardy principle does not apply to bar discipline cases and why the Court retains jurisdiction over already-disbarred lawyers.

• Genato vs. Atty. Mallari, 865 Phil. 247 (2019) — Controlling precedent. This was the prior disbarment case in which Atty. Mallari was stricken from the Roll of Attorneys, and the debate challenge against Justice Bruselas formed part of the bases for his disbarment. The Court approvingly quoted its findings in Genato regarding Atty. Mallari's violation of Rule 138, Section 20(b) of the Rules of Court and Rule 11.05, Canon 11 of the Code of Professional Responsibility.
• Pabalan vs. Atty. Salva, 850 Phil. 13 (2019) — Controlling precedent. This case established the rule that a disbarment complaint based on the same act as a previous disbarment complaint for which the lawyer had already been sanctioned must be dismissed. The Court applied this doctrine to dismiss the present complaint on the ground that the unethical acts subject thereof had already been passed upon and considered as grounds for Atty. Mallari's disbarment in Genato.
• In the Matter of the Proceedings for Disciplinary Action Against Atty. Almacen, et al., vs. Yaptinchay, 142 Phil. 353 (1970) — Followed. This case articulated the doctrine of ethically acceptable criticism of judicial rulings, distinguishing fair criticism from abuse and slander of courts and judges. The Court quoted this case extensively to explain why Atty. Mallari's debate challenge went beyond the bounds of acceptable criticism.
• Bradley vs. Fisher, 80 U.S. 335 (1871) — Cited. The U.S. Supreme Court case was quoted to explain the importance of judicial independence and the protection essential to judges from actions based on allegations of partiality, malice, or corruption in the performance of judicial acts.

• Section 20(b), Rule 138, Rules of Court — Provides that it is the duty of an attorney to observe and maintain the respect due to the courts of justice and judicial officers. The Court found that Atty. Mallari's public debate challenge against Justice Bruselas violated this provision.
• Canon 1, Code of Professional Responsibility — A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and legal processes. The Court found this canon violated by Atty. Mallari's conduct.
• Rule 1.02, Code of Professional Responsibility — A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system. The Court found this rule violated by Atty. Mallari's debate challenge.
• Canon 10, Code of Professional Responsibility — A lawyer owes candor, fairness and good faith to the court. The Court found this canon violated by Atty. Mallari's conduct.
• Rule 10.03, Code of Professional Responsibility — A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice. The Court found this rule violated by Atty. Mallari's use of the administrative disciplinary process for what was essentially forum-shopping.
• Canon 11, Code of Professional Responsibility — A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others. The Court found this canon violated by Atty. Mallari's debate challenge.
• Rule 11.03, Code of Professional Responsibility — A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the Courts. The Court found this rule violated by Atty. Mallari's vituperative statements against the CA justices.
• Canon 13, Rule 13.02, Code of Professional Responsibility — A lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party. The Court found this sub judice rule violated by Atty. Mallari's publication of the debate challenge in two newspapers of general circulation.
• Article VIII, Section 5(5), Constitution — The Supreme Court's constitutional power to promulgate rules and regulations concerning admission to the practice of law, which serves as the basis for the Court's continuing jurisdiction over interdicted or disbarred lawyers.

Gesmundo, C.J., Leonen, SAJ., Caguioa, Hernando, Lazaro-Javier, Zalameda, M. Lopez, Gaerlan, Rosario, J. Lopez, Kho, Jr., and Singh, JJ., concurred. Inting, Dimaampao, and Marquez, JJ., took no part.