Fabugais vs. Faundo

A lawyer may be disciplined for conduct that, while not rising to the level of grossly immoral conduct requiring disbarment, nonetheless creates the appearance of immorality and adversely reflects on his fitness to practice law under Rule 7.03 of the Code of Professional Responsibility, particularly where such conduct occurs in the presence of a minor child whose perception of the legal profession may be shaped by the lawyer's behavior.

Complainant Oliver Fabugais filed a complaint against Atty. Berardo C. Faundo Jr. for gross misconduct and conduct unbecoming of a lawyer, alleging that the respondent had engaged in illicit and immoral relations with complainant's wife, Annaliza Lizel B. Fabugais. The respondent lawyer had entered his appearance as collaborating counsel for Annaliza in a case for declaration of nullity of marriage that complainant had filed against her, with prayer for custody of their minor children. The respondent claimed a cordial pre-existing relationship with Annaliza, tracing it to her being the stepdaughter of his late uncle and to her having been his former student at the Western Mindanao State University in Zamboanga City.

Complainant Oliver Fabugais filed a complaint against Atty. Berardo C. Faundo Jr. for gross misconduct and conduct unbecoming of a lawyer, alleging that the respondent had engaged in illicit and immoral relations with complainant's wife, Annaliza Lizel B. Fabugais. The complaint was supported by the sworn statement of complainant's then 10-year-old daughter, Marie Nicole Fabugais, who recounted that sometime in October 2006, she, her mother Annaliza, Ate Mimi (Michelle Lagasca), and Ate Ada (Ada Marie Campos) stayed in a house in Ipil, Zamboanga-Sibugay, that belonged to the respondent lawyer, whom Marie Nicole referred to as "Tito Attorney." Marie Nicole stated that when nighttime fell, the respondent lawyer slept in the same bed with her and her mother, and she saw him embracing her mother while they were sleeping. The next morning, while Marie Nicole was watching television with her mother, Ate Mimi, and Ate Ada, the respondent lawyer, having just showered and clad only in a towel or tapis, suddenly entered the room. Marie Nicole, together with Ate Mimi and Ate Ada, was told to step outside — either by the respondent lawyer or by her mother — while her mother and the respondent lawyer remained inside the room alone.

Because of these developments, the complainant filed a case for declaration of nullity of his marriage with Annaliza, with prayer for custody of their minor children. In that case, the respondent lawyer entered his appearance as collaborating counsel for Annaliza. The complainant further alleged that on February 17, 2007, while he was driving his motorcycle along San Jose Road in Baliwasan, Zamboanga City, the respondent lawyer, riding in tandem on another motorcycle with his own driver, slowed down next to him and yelled angrily, "Nah, cosa man?!" ("So, what now?!"). The complainant claimed the respondent lawyer kept following and shouting at him, challenged him to a fistfight, and threatened to kill him. The complainant also alleged that the respondent lawyer harassed his sister on February 27, 2007 by chasing and trailing after her car.

In his Answer, the respondent lawyer asserted that the chasing incident actually took place on February 16, 2007, and that it was the complainant himself who stared menacingly at him while he was riding a motorcycle in tandem with his driver. The respondent denied having had any immoral relations with Annaliza, claiming he was merely assisting her in her custody battle with the complainant. He explained that when Marie Nicole's maternal grandmother, Ma. Eglinda L. Bantoto, sought his help, he told them they could hide in his parents' house in Ipil. He insisted he was incapable of committing the misconduct imputed to him because he was a good father to his three children, a respected civic leader, and had never been the subject of a complaint with the police. He claimed the complaint was filed simply to harass him from practicing his legitimate profession.

The IBP Investigating Commissioner found that the chasing and harassment allegations were not fully substantiated, noting that the motorcycles were moving fast, the parties were wearing helmets, and the respondent's identity could not be categorically established. However, the Investigating Commissioner found that while no categorical sexual activity took place between the respondent and the complainant's wife, the respondent's behavior — lying in bed with a married woman in the presence of her minor daughter, and entering a room full of women clad only in a towel — was inappropriate and created the appearance of immorality. The IBP-BOG adopted and approved these findings and the recommended one-month suspension. The complainant passed away on June 12, 2011, but the proceeding continued.

• Gross Misconduct and Immoral Relations: Complainant alleged that the respondent lawyer engaged in illicit and immoral relations with his wife, Annaliza, based on the eyewitness testimony of their 10-year-old daughter Marie Nicole, who saw the respondent sleeping in the same bed with and embracing her mother, and who witnessed the respondent entering a room full of women clad only in a towel.
• Harassment and Intimidation: Complainant alleged that on February 17, 2007, the respondent lawyer chased him on a motorcycle, shouted at him, challenged him to a fistfight, and threatened to kill him, and that on February 27, 2007, the respondent harassed complainant's sister by chasing and trailing after her car.

• Denial of Immoral Relations: Respondent denied having had any immoral relations with Annaliza, claiming he was merely assisting her in her tempestuous court battle with the complainant for custody of her children, and that he had offered his parents' house in Ipil as a hiding place at the request of Marie Nicole's maternal grandmother.
• Pre-existing Cordial Relationship: Respondent asserted that his cordial relationship with Annaliza could be traced to her being the stepdaughter of his late uncle and to her having been his former student at the Western Mindanao State University, explaining the non-sexual nature of their association.
• Good Character and Reputation: Respondent insisted he was incapable of committing the misconduct imputed to him because he was a good father to his three children, a respected civic leader, and had never been the subject of a complaint with the police.
• Harassment Defense: Respondent claimed the complaint was filed simply to harass him from practicing his legitimate profession, and that the chasing incident actually took place on February 16, 2007, with the complainant himself having stared menacingly at the respondent.
• Malong vs. Tapis: In his Motion for Reconsideration, the respondent sought to downplay the towel incident by claiming he was wearing a malong and not a tapis at the time.

• Appearance of Immorality: Whether the respondent lawyer committed acts that are grossly immoral, or that amount to serious moral depravity, warranting disbarment or suspension from the practice of law.
• Survival of Proceeding: Whether the disciplinary proceeding may continue despite the death of the complainant and the apparent lack of interest on the part of the complainant's heirs.
• Chasing and Harassment Incidents: Whether the respondent lawyer committed the alleged chasing and harassment acts against the complainant and his sister.

• Appearance of Immorality: Yes, but not for grossly immoral conduct in the strict sense. The respondent's conduct, while not constituting raw sexual immorality, created the appearance of immorality and violated Rule 7.03 of the Code of Professional Responsibility, warranting a one-month suspension.
• Survival of Proceeding: Yes. Disciplinary proceedings against lawyers are sui generis in nature, intended primarily to look into the conduct of lawyers and determine their fitness to practice; they are not chiefly intended to administer punishment and do not call for the active service of prosecutors, and thus may proceed notwithstanding the complainant's death.
• Chasing and Harassment Incidents: No. The evidence presented was insufficient to establish that the respondent lawyer committed the alleged chasing and harassment acts, as the motorcycles were moving fast, the parties were wearing helmets, and the respondent's identity could not be categorically established.

• Appearance of Immorality: The Court defined "immoral conduct" as conduct so willful, flagrant, or shameless as to show indifference to the opinion of good and respectable members of the community, and held that for such conduct to warrant disciplinary action, it must be "grossly immoral" — so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree. Applying this standard, the Court found that raw or explicit sexual immorality was not established as a matter of fact, relying on the Investigating Commissioner's observation that "one would need to inject a bit of imagination to create an image of something sexual." However, the Court ruled that the respondent's behavior nonetheless violated Rule 7.03 of the CPR, which prohibits conduct that adversely reflects on a lawyer's fitness to practice law and scandalous behavior that discredits the legal profession. The respondent, a married man, slept in the same bed with another man's wife with his arms entwined around her, in the presence of her 10-year-old daughter, and entered a room full of women clad only in a towel or tapis. The Court emphasized that lawyers must not only be of good moral character but must also appear to be of good moral character, and that any thoughtless or ill-considered action by a member of the bar can irreversibly undermine public confidence in the law. The Court noted that Marie Nicole called the respondent "Tito Attorney," signifying both her avuncular affection for him and her recognition of his being a lawyer, and that her young mind clearly perceived that his conduct was not proper. The Court rejected the respondent's distinction between malong and tapis, holding that his scanty trappings gave him no license to intrude into a small room full of women. Considering this was the respondent's first offense, a one-month suspension was deemed sufficient.

• Survival of Proceeding: The Court held that the case could proceed despite the complainant's death because disciplinary proceedings are sui generis in nature. They are intended primarily to look into the conduct or behavior of lawyers, to determine whether they are still fit to exercise the privileges of the legal profession, and to hold them accountable for misconduct that deviates from the mandated norms and standards of the CPR. Because they are not chiefly intended to administer punishment, such proceedings do not call for the active service of prosecutors and are not extinguished by the complainant's death or the heirs' lack of interest.

• Chasing and Harassment Incidents: The Court agreed with the IBP's findings that the evidence on this point was insufficient. The motorcycles were moving fast, the parties were wearing helmets, and the respondent's identity could not be categorically established. The Court likewise found no sufficient evidence to establish that the respondent harassed the complainant's sister.

• Sui Generis Nature of Disciplinary Proceedings — Disciplinary proceedings against lawyers are sui generis in nature: they are intended and undertaken primarily to look into the conduct or behavior of lawyers, to determine whether they are still fit to exercise the privileges of the legal profession, and to hold them accountable for any misconduct or misbehavior which deviates from the mandated norms and standards of the CPR. Because not chiefly or primarily intended to administer punishment, such proceedings do not call for the active service of prosecutors and may proceed notwithstanding the complainant's death.

• Grossly Immoral Conduct — "Immoral conduct" is conduct so willful, flagrant, or shameless as to show indifference to the opinion of good and respectable members of the community. For such conduct to warrant disciplinary action, it must be "grossly immoral," that is, so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree. The Court applied this standard and found that the respondent's conduct, while not grossly immoral in the strict sense, was condemnable and created the appearance of immorality.

• Appearance of Immorality — Lawyers must not only be of good moral character but must also be seen or appear to be of good moral character and to live a life in accordance with the highest moral standards of the community. Creating the appearance that a lawyer is flouting normal standards is sanctionable even where the charge of sexual immorality is not factually established. The Court applied this principle to hold the respondent accountable under Rule 7.03 for conduct that, while not sexually immoral in the raw sense, created the image or appearance of immorality, especially in the presence of a minor girl.

• Preservative and Corrective Principle in Imposing Sanctions — The power to disbar or suspend members of the bar ought always to be exercised not in a spirit of spite, hostility, or vindictiveness, but on the preservative and corrective principle, with a view to safeguarding the purity of the legal profession. That power should not be exercised when a lesser penalty or sanction would accomplish the end desired. The Court applied this principle by imposing only a one-month suspension, considering that this was the respondent's first offense.

• "As officers of the court, lawyers must in fact and in truth be of good moral character. They must moreover also be seen or appear to be of good moral character; and be seen or appear to live a life in accordance with the highest moral standards of the community." — This passage articulates the doctrine that lawyers must not only possess good moral character but must also project the appearance of propriety, forming the basis for disciplining conduct that creates the appearance of immorality even absent proof of actual sexual misconduct.

• "The acts complained of in this case might not be grossly or starkly immoral in its rawness or coarseness, but they were without doubt condemnable." — This sentence captures the Court's essential holding: that conduct falling short of grossly immoral conduct in the strict sense may nonetheless warrant disciplinary sanction under Rule 7.03 of the CPR.

• "Disciplinary proceedings against lawyers are sui generis in nature: they are intended and undertaken primarily to look into the conduct or behavior of lawyers, to determine whether they are still fit to exercise the privileges of the legal profession, and to hold them accountable for any misconduct or misbehavior which deviates from the mandated norms and standards of the Code of Professional Responsibility, all of which are needful and necessary to the preservation of the integrity of the legal profession." — This passage defines the sui generis nature of disciplinary proceedings and explains why such proceedings survive the complainant's death.

• Tolosa vs. Cargo, A.M. No. 2385, March 8, 1989 — Cited for the proposition that creating the appearance that a lawyer is flouting normal standards is sanctionable, even where the charge of immorality is not factually established. The Court relied on this case to hold the respondent accountable for conduct creating the appearance of immorality.
• Ui vs. Atty. Bonifacio, 388 Phil. 691 (2000) — Cited for the definition of "immoral conduct" as conduct so willful, flagrant, or shameless as to show indifference to the opinion of good and respectable members of the community, and for the standard that such conduct must be "grossly immoral" to warrant disciplinary action.
• Gonzalez vs. Atty. Alcaraz, 534 Phil. 471 (2006) — Cited for the principle that disciplinary proceedings are sui generis in nature and do not call for the active service of prosecutors, supporting the Court's ruling that the case could proceed despite the complainant's death.
• Soriano vs. Dizon, 515 Phil. 635 (2006) — Cited for the principle that the power to disbar or suspend should not be exercised when a lesser penalty would accomplish the end desired, supporting the imposition of only a one-month suspension.

• Canon 7, Code of Professional Responsibility — "A lawyer shall at all times uphold the integrity and dignity of the legal profession, and support the activities of the Integrated Bar." The Court invoked this canon to emphasize that lawyers must maintain the respect of the community for the legal profession under all circumstances.
• Rule 7.03, Code of Professional Responsibility — "A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor should he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession." The Court applied this rule as the primary basis for the respondent's suspension, finding that his conduct of sleeping in the same bed with a married woman in the presence of her minor daughter and entering a room full of women clad only in a towel adversely reflected on his fitness to practice law and constituted scandalous behavior discrediting the legal profession.
• Rule 1.01, Code of Professional Responsibility — The IBP Investigating Commissioner recommended suspension under this rule, which prohibits lawyers from engaging in unlawful, dishonest, immoral, or deceitful conduct. The IBP-BOG adopted this recommendation, and the Supreme Court ultimately found the respondent liable under Rule 7.03.
• Section 12(c), Rule 139-B, Rules of Court — This provision governs the elevation of IBP disciplinary proceedings to the Supreme Court for final action, pursuant to which the case was brought before the Court.

• Justice Teresita J. Leonardo-De Castro (Chairperson)
• Justice Francis H. Jardeleza (On official leave)
• Justice Noel Gimenez Tijam (On official leave, per Special Order No. 2560)
• Justice Alexander G. Gesmundo