Re: Kho

Failure to timely remit judiciary funds in violation of the mandatory provisions of OCA Circular No. 8A-93 constitutes unlawful conduct in violation of the Attorney's Oath, Section 20(a), Rule 138 of the Rules of Court, and Canon 1, Rule 1.01 of the Code of Professional Responsibility, even without evil intent or personal use of the funds.

Atty. Raquel G. Kho was the former clerk of court of the Regional Trial Court, Branch 5, Oras, Eastern Samar, and as such custodian of judiciary funds deposited with the court. OCA Circular No. 8A-93 required clerks of court to deposit all collections from bail bonds, rental deposits, and other fiduciary collections upon receipt with the Land Bank of the Philippines, or with a rural bank or by postal money order where no Land Bank branch existed, with strict compliance enjoined.

Atty. Raquel G. Kho served as clerk of court IV of the Regional Trial Court, Branch 5, Oras, Eastern Samar, with custody of cash deposited with the court and responsibility for its timely remittance under OCA Circular No. 8A-93. A financial audit of his books of accounts disclosed his failure to timely remit judiciary funds in his custody.

The amount involved was P65,000, which remained unremitted for over a year. According to Kho, the omission was inexcusable, but the money was kept in the court's safety vault and was never once used for his own benefit.

The matter first proceeded as an administrative case against him as clerk of court. In the resolution dated June 27, 2006, he was found guilty of gross misconduct for the delayed remittance and fined P10,000, and was further required to show cause why he should not be disciplined as a lawyer and officer of the court. His submitted explanation admitted the infraction and asserted good faith, lack of personal use, and safekeeping of the funds.

• Admission with claim of good faith and safekeeping: Atty. Kho admitted that his failure to make a timely remittance of the cash deposited with him was inexcusable.
• Lack of personal use: Atty. Kho maintained that he kept the money in the court's safety vault and never once used it for his own benefit.

• Unlawful conduct: Whether failure to timely remit P65,000 in judiciary funds for over a year in violation of OCA Circular No. 8A-93 constitutes unlawful conduct in violation of the Attorney's Oath and Canon 1, Rule 1.01 of the Code of Professional Responsibility despite good faith and absence of personal use.
• Sanction: Whether the mitigating circumstances of candid admission, lack of intent to gain, and first offense warrant only a light penalty.

• Unlawful conduct: Yes. Failure to remit P65,000 for over a year contrary to the mandatory provisions of OCA Circular No. 8A-93 was a breach of the oath to obey laws and legal orders and of Canon 1, Rule 1.01, good faith and absence of misuse being only mitigating.
• Sanction: A fine of P5,000 suffices. Candid and repentant admission, lack of intent to gain, and first offense considerably tempered culpability.

• Unlawful conduct: Any act or omission contrary to law is unlawful, broad enough to include criminality but not necessarily implying it, so evil intent is not essential to bring conduct within Rule 1.01 prohibiting unlawful conduct. Lawyers as servants of the law and officers of the court are required to be at the forefront of observing the rule of law and to be exemplars, with the least compliance under Canon 1 being refraining from unlawful conduct. Applied here, the admitted failure to remit P65,000 for over a year violated the mandatory remittance directive of OCA Circular No. 8A-93 and thus breached the Attorney's Oath and Section 20(a), Rule 138, notwithstanding safekeeping in the vault and non-use for personal benefit.
• Sanction: Candid and repentant admission, apparent good faith, lack of intent to gain, and first offense were mitigating but could not negate the violation. Under the circumstances, liability was tempered considerably and a P5,000 fine was deemed sufficient, deductible with the prior P10,000 fine from accrued leave credits.

• Unlawful conduct under Canon 1, Rule 1.01 — A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct, with unlawful defined as any act or omission contrary to law. The prohibition does not necessarily imply criminality although broad enough to include it, and evil intent is not essential for liability. Applied here, violation of the mandatory remittance rule in OCA Circular No. 8A-93 was unlawful conduct even though the funds were kept in the vault and not personally used.
• Heightened duty of lawyers under Canon 1 — A lawyer shall uphold the Constitution, obey the laws of the land, and promote respect for law and legal processes, a duty exceeding that of ordinary citizens because lawyers as servants of the law and officers of the court must be exemplars worthy of emulation. Applied here, the clerk of court who was also a lawyer was held to that forefront observance of the rule of law, making his non-remittance a breach of his oath and professional duty.

• "RULE 1.01. A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct." — States the controlling prohibition under which the failure to remit was punished as unlawful conduct.
• "By definition, any act or omission contrary to law is unlawful." — Defines unlawfulness for purposes of Rule 1.01 and supports liability without proof of criminality.
• "Thus, the presence of evil intent on the part of the lawyer is not essential in order to bring his act or omission within the terms of Rule 1.01 which specifically prohibits lawyers from engaging in unlawful conduct." — Establishes that good faith and lack of intent to gain do not negate the violation and operate only in mitigation.
• "As servants of the law and officers of the court, lawyers are required to be at the forefront of observing and maintaining the rule of law. They are expected to make themselves exemplars worthy of emulation." — Articulates the heightened Canon 1 rationale for disciplining the lawyer-officer.

• OCA Circular No. 8A-93, dated April 21, 1993 — Directs all clerks of courts of lower courts to deposit upon receipt all collections from bail bonds, rental deposits, and other fiduciary collections with the Land Bank of the Philippines, or with a rural bank or by postal money order where no Land Bank branch exists, with strict compliance enjoined; applied as the mandatory order violated by the over-a-year delay in remitting P65,000.
• Canon 1, Rule 1.01, Code of Professional Responsibility — Provides that a lawyer shall uphold the Constitution, obey laws, promote respect for law and legal processes, and shall not engage in unlawful, dishonest, immoral or deceitful conduct; applied as the ethical basis for finding unlawful conduct.
• Attorney's Oath; Section 20(a), Rule 138 of the Rules of Court — Imposes the duty to maintain allegiance to the Republic, support the Constitution, and obey the laws of the Philippines as well as legal orders of duly constituted authorities; applied as breached by non-compliance with the mandatory circular.

Puno, C.J. (Chairperson), Sandoval-Gutierrez, Azcuna, and Garcia, JJ., concur.