Fabugais vs. Faundo Jr.

A lawyer may be disciplined for conduct that creates an appearance of immorality or impropriety, even in the absence of proven sexual acts, because members of the bar are required at all times to uphold the integrity and dignity of the legal profession and to avoid any behavior that tends to erode public confidence in the law and its practitioners.

Complainant Oliver Fabugais was married to Annaliza Lizel B. Fabugais. In 2006, Annaliza, together with the couple’s 10-year-old daughter Marie Nicole and two other women, stayed at a house in Ipil, Zamboanga-Sibugay owned by respondent Atty. Berardo C. Faundo Jr., whom Marie Nicole called “Tito Attorney.” The stay gave rise to observations by the child that prompted the complainant to suspect an illicit relationship between respondent and Annaliza. Complainant subsequently filed a petition for the declaration of nullity of his marriage, and respondent entered his appearance as collaborating counsel for Annaliza in that case.

• The Allegations of Immoral Conduct: In her Sinumpaang Salaysay, complainant’s 10-year-old daughter Marie Nicole stated that in October 2006, she, her mother Annaliza, a certain “Ate Mimi” (Michelle Lagasca), and “Ate Ada” (Ada Marie Campos) stayed at respondent lawyer’s house in Ipil, Zamboanga-Sibugay. According to Marie Nicole, respondent slept in the same bed with her and her mother, and she saw respondent embracing her mother while they slept. The following morning, while the group watched television, respondent—fresh from a shower and wearing only a towel (“tapis”)—entered the room. The child and the two other women were told to leave the room, and Annaliza remained inside with respondent.

• The Allegations of Threats and Harassment: Complainant further alleged that on February 17, 2007, respondent, riding tandem on a motorcycle, slowed down beside complainant’s motorcycle on San Jose Road, Baliwasan, Zamboanga City, and angrily shouted “Nah, cosa man?!” (“So, what now?!”). Complainant claimed respondent followed him, challenged him to a fight, and threatened to kill him. Complainant also alleged that respondent harassed his sister by chasing her car on February 27, 2007.

• Respondent’s Defense: Respondent denied any illicit or immoral relations with Annaliza, maintaining that he merely assisted her in the custody battle against complainant. He claimed Annaliza’s mother sought his help, and he permitted them to stay at his parents’ house. He traced his cordial relationship with Annaliza to her being the stepdaughter of his late uncle and his former student at Western Mindanao State University. Respondent asserted he was incapable of the charged misconduct because he was a good father, a respected civic leader, and had never been the subject of any police complaint. He characterized the disbarment suit as harassment designed to prevent him from practicing his profession. As to the chasing incident, respondent claimed it was complainant who stared menacingly at him; he submitted affidavits from his driver and two other individuals to support this version.

• IBP Findings: The Investigating Commissioner found the chasing and harassment charges unsubstantiated because the identity of the persons involved could not be conclusively established given the speed of the motorcycles and the use of helmets. On the immorality charge, the Commissioner determined that no categorical sexual activity had been proven—any inference of sexual conduct required “a bit of imagination.” Nonetheless, respondent’s behavior in lying in bed with a married woman while himself married, in the presence of the woman’s minor daughter, and his act of entering a room full of women clad only in a towel, were held to be improper and to have created the appearance of immorality, in violation of Rule 1.01 of the Code of Professional Responsibility.

• Gross Immorality: Complainant maintained that respondent lawyer engaged in illicit and immoral relations with complainant’s wife, Annaliza, citing the eyewitness account of their minor daughter, and that such conduct amounted to gross misconduct warranting disbarment or suspension.

• Threats and Harassment: Complainant argued that respondent chased him on a motorcycle, challenged him to a fistfight, threatened to kill him, and later harassed complainant’s sister, all of which demonstrated conduct unbecoming a lawyer.

• Abuse of Position: Complainant pointed out that respondent entered his appearance as collaborating counsel for Annaliza in the nullity and custody case, underscoring the impropriety of respondent’s personal involvement with his client in a matter directly adverse to complainant.

• Denial of Immoral Relationship: Respondent countered that he never had any immoral or illicit relations with Annaliza. He insisted he was only extending assistance in a legal matter and that their relationship was purely professional and familial, arising from Annaliza having been his former student and a relative by affinity through his late uncle.

• Good Moral Character: Respondent maintained that he was incapable of 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 police complaint. He dismissed the charges as a means to harass him and prevent him from practicing law.

• Chasing Incident: Respondent presented a contrary version of the motorcycle incident, claiming complainant was the aggressor who stared menacingly at him. He bolstered this defense with the affidavit of his driver and two other witnesses.

• Disciplinary Liability: Whether respondent lawyer’s acts—sleeping in the same bed with a married woman who was not his wife and entering a room occupied by her and her minor daughter wearing only a towel—constituted grossly immoral conduct, or otherwise violated the Code of Professional Responsibility so as to warrant suspension or disbarment.

• Disciplinary Liability: Grossly immoral conduct was not established because no sexual activity was proven. The definition of “grossly immoral conduct” requires behavior that is “so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree,” and the evidence did not meet that threshold. However, respondent’s behavior was nonetheless found to violate Rule 1.01 and Canon 7 of the Code of Professional Responsibility. By sleeping in the same bed with another man’s wife while embracing her—all in the presence of the woman’s 10-year-old daughter—and by later exposing himself nearly naked before the same group, respondent created an appearance of impropriety and immorality that fell short of the exacting standards demanded of members of the bar. Lawyers must not only possess good moral character but must also be seen to live according to the highest moral standards of the community. Respondent’s acts, even if not sexually consummated, seriously undermined public confidence in the legal profession and reflected adversely on his fitness to practice law. Considering that the power to discipline is exercised on a preservative and corrective principle, and that this was respondent’s first offense, a one-month suspension was deemed sufficient.

• Appearance of Impropriety / Appearance of Immorality — A lawyer may be administratively sanctioned for conduct that creates the appearance of flouting moral standards, even in the absence of proven sexual acts. The integrity of the profession requires not only actual moral rectitude but also the public perception of such rectitude. (Citing Tolosa v. Cargo, 253 Phil. 154 (1989)). In this case, respondent’s sleeping arrangements and indecent exposure before a minor were held to produce an unmistakable appearance of immorality.

• **Definition of Grossly Immoral Conduct — For conduct to warrant disciplinary action as “grossly immoral,” it must be “so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree.” Mere indiscretion or impropriety falling short of this elevated standard may still be penalized under the broader mandates of the Code of Professional Responsibility.

• Nature of Disbarment Proceedings — Disciplinary proceedings against lawyers are sui generis. They are not primarily intended to punish the attorney but to protect the administration of justice by ensuring that those who bear the title “Attorney” remain fit to exercise the privileges of the profession. Such proceedings may continue despite the complainant’s death or withdrawal of interest because the real party in interest is the public and the legal profession itself.

• **Preservative and Corrective Principle — The power to disbar or suspend is to be exercised not out of spite or vindictiveness but on a preservative and corrective basis, aiming to safeguard the purity of the legal profession. A lesser sanction should be imposed when it would suffice to accomplish the desired end.

• “[W]hile sexual immorality was not established, respondent should be held to account for his inappropriate behavior which created the image or appearance of immorality especially in the presence of a minor girl.”

• “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.”

• “Members of the bar can ill-afford to exhibit any conduct which tends to lessen in any degree the confidence of the public in the fidelity, the honesty, and the integrity of the legal profession.”

• “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.”

• Tolosa v. Cargo, 253 Phil. 154 (1989) — Established the principle that creating the appearance that a lawyer is flouting moral standards is itself sanctionable conduct; relied upon by the Court to justify discipline even absent proof of actual sexual relations.

• Ui v. Atty. Bonifacio, 388 Phil. 691 (2000) — Provided the controlling definition of “grossly immoral conduct” as conduct that is so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree; applied to hold that respondent’s actions did not meet this strict threshold.

• Gonzalez v. Atty. Alcaraz, 534 Phil. 471 (2006) — Cited for the principle that disciplinary proceedings are sui generis and not primarily punitive in nature, allowing the case to proceed despite the complainant’s death.

• Burbe v. Atty. Magulta, 432 Phil. 840 (2000) — Referenced for the canon that lawyers must at all times uphold the dignity of the legal profession and maintain the respect of the community.

• Narag v. Atty. Narag, 353 Phil. 643 (1998); Zaguirre v. Atty. Castillo, 446 Phil. 861 (2003) — Reiterated the rule that lawyers must be seen to live according to the highest moral standards of the community.

• Rule 1.01, Code of Professional Responsibility — “A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.” The Court applied this rule to respondent’s behavior that created an appearance of immorality, even if the conduct did not amount to grossly immoral acts.

• 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.” This canon was invoked to underscore the lawyer’s continuous duty to avoid behavior that discredits the profession.

• 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.” Respondent’s acts were found to violate this rule by scandalizing the profession, particularly through exposure of indecent behavior to a minor child.

• Section 12(c), Rule 139-B, Rules of Court — This provision governs the Supreme Court’s final action on disciplinary recommendations from the IBP Board of Governors.

Associate Justice Teresita J. Leonardo-De Castro (Acting Chairperson), Associate Justice Francis H. Jardeleza, and Associate Justice Alexander G. Gesmundo. (Associate Justice Noel G. Tijam was on official leave.)