Montecillo and del Mar vs Francisco Gica et al 60 SCRA 234 Legal Ethics Lawyers Duty to the Courts Contemptuous LanguageJorge Montecillo was accused by Francisco Gica of slander. Atty. Quirico del Mar represented Montecillo and he successfully defended Monteceillo in the lower court. Del Mar was even able to win their counterclaim thus the lower court ordered Gica to pay Montecillo the adjudged moral damages.Gica appealed the award of damages to the Court of Appeals where the latter court reversed the same. Atty. Del Mar then filed a motion for reconsideration where he made a veiled threat against the Court of Appeals judges intimating that he thinks the CA justices knowingly rendered an unjust decision and judgment has been rendered through negligence and that the CA allowed itself to be deceived.The CA denied the MFR and it admonished Atty. Del Mar from using such tone with the court. Del Mar then filed a second MFR where he again made threats. The CA then ordered del Mar to show cause as to why he should not be punished for contempt.Thereafter, del Mar sent the three CA justices a copy of a letter which he sent to the President of the Philippines asking the said justices to consider the CA judgment. But the CA did not reverse its judgment. Del Mar then filed a civil case against the three justices of the CA before a Cebu lower court but the civil case was eventually dismissed by reason of a compromise agreement where del Mar agreed to pay damages to the justices. Eventually, the CA suspended Atty. Del Mar from practice.The issue reached the Supreme Court. Del Mar asked the SC to reverse his suspension as well as the CA decision as to the Montecillo case. The SC denied both and this earned the ire of del Mar as he demanded from the Clerk of the Supreme Court as to who were the judges who voted against him.The Supreme Court then directed del Mar to submit an explanation as to why he should not be disciplined. Del Mar in his explanation instead tried to justify his actions even stating that had he not been convinced that human efforts in [pursuing the case] will be fruitless he would have continued with the civil case against the CA justices. In his explanation, del Mar also intimated that even the Supreme Court is part among the corrupt, the grafters and those allegedly committing injustice.Del Mar even filed a civil case against some Supreme Court justices but the judge who handled the case dismissed the same.ISSUE: Whether or not Atty. Del Mar should be suspended.HELD: Yes. Atty. Del Mar, by his contemptuous acts is in violation of his duties to the courts. As an officer of the court, it ishis sworn and moral duty to help buildandnot destroyunnecessarily the high esteem and regard towards the court so essential to the proper administration of justice.It is manifest that del Mar has scant respect for the two highest Courts of the land when on the flimsy ground of alleged error in deciding a case, he proceeded to challenge the integrity of both Courts by claiming that they knowingly rendered unjust judgment. In short, his allegation is that they acted with intent and malice, if not with gross ignorance of the law, in disposing of the case of his client.Del Mar was then suspended indefinitely.People vs Rosqueta, Jr. Fernando, J.:FactsThis is a case in re the disciplinary action against respondent Gregorio B. Estacio for failure to file the brief for appellants within the period which expired on March 30, 1973.He failed to show cause as thus required, and on September 7, 1973, the Court issued a resolution suspending him from the practice of law except for the purpose of filing the brief which should be done within 30 days from the receipt of notice. Then on October 22, 1973, he filed a motion for reconsideration wherein it appeared that he did seek to explain his failure to file the brief on time, but he left it to be mailed on June 9, 1973 with Antonio Rosqueta, Sr., father of appellants Antonio Rosqueta, Jr. and Eusebio Rosaqueta, who, however, was unable to do so as on the 10th of June, his house caught fire.Then on December 27, 1973, there was a motion of respondent submitting two affidavits, one from Antonio Rosqueta, Jr. and Citong Bringas, and the other from Eusebio Rosqueta wherein they indicated their consent and approval to respondents motion to withdraw appeal.IssueWON he is liable for administartive sanction.HeldYes. Respondents responsibility is mitigated but he cannot be absolved from the irresponsible conduct of which he is guilty. Respondent should be aware that even in those cases where counsel de parte is unable to secure from appellants or from their near relatives the amount necessary to pursue the appeal, that does not necessarily conclude his connection with the case. It has been a commendable practice of some members of the bar under such circumstances, to be designated as counsel de oficio.He should be aware that in the pursuance of the duty owed this Court as well as to a client, he cannot be too casual and unconcerned about the filing of pleadings. It is not enough that he prepares the,; he must see to it that they are duly mailed. At any rate, the suspension meted on him under the circumstances is more than justified. It seems, however, that well-nigh five months had elapsed. That would suffice to atone for his misdeed. The suspension of Atty. Estacio is lifted.

July 21, 1967G.R. No. L-26222THE PEOPLE OF THE PHILIPPINES, petitioner,vs.HONORABLE JUDGE HERNANDO PINEDA of the Court of First Instance of Lanao del Norte; and TOMAS NARBASA, TAMBAC ALINDO and RUFINO BORRES,Sanchez,J.:Facts:Respondents Tomas Narbasa, TambacAlindo and RufinoBorres stand indicted before the Court of First Instance of Lanao del Norte, as principals, in five (5) separate cases, four for murder and one for frustrated murder. The five informations were planted upon facts gathered by the prosecuting attorney from his investigation.The indictments are bottomed upon the following alleged pivotal facts:On the night of July 29, 1965, the occupants of the home of the spouses Teofilo Mendoza and ValerianaBontilao de Mendoza in Pugaan City of Iligan, were asleep. It was then that guns (rifle, caliber 22) and paliuntod (homemade gun) were fired in rapid succession from outside the house. Teofilo Mendoza fell dead. Thereafter, defendants below destroyed the door of the house, entered therein, and let loose several shots killing Neceforo Mendoza, all minor children of the couple and wounding ValerianaBontilao de Mendoza.Two of the three defendants in the five criminal cases heretofore listed Tomas Narbasa and TambakAlindo moved for a consolidation thereof into one (1) criminal case. Their plea is that said cases arose out of the same incident and motivated by one impulse.Giving the nod to defendants claim, respondent Judge, in an order dated May 13, 1966, directed the City Fiscal to unify all the five criminal cases, and to file one single information in Case 1246. He also ordered that the other four cases, Nos. 1247, 1248, 1249 and 1250 be dropped from the docket.The City Fiscal balked at the foregoing order, sought reconsideration thereof, upon the ground that more than one gun was used, more than one shot was fired and more than one victim was killed. The defense opposed.On May 31, 1966, respondent Judge denied the motion to reconsider. He took the position that the acts complained of stemmed out of a series of continuing acts on the part of the accused, not by different and separate sets of shots, moved by one impulse and should therefore be treated as one crime though the series of shots killed more than one victim; and that only one information for multiple murder should be filed, to obviate the necessity of trying five cases instead of one.Primarily to annul respondent Judges orders of May 13, 1966 and May 31, 1966, as having been issued without or in excess of jurisdiction and/or with grave abuse of discretion, the People came to this Court oncertiorariwith a prayer for a writ of preliminary injunction, and for other reliefs.This Court, on July 1, 1966, issued the cease-and-desist order prayed for.Issue:1. Should there be one information, either for the complex crime of murder and frustrated murder or for the complex crime of robbery with multiple homicide and frustrated homicide? 2. Whether it was proper for the fiscal to disregard the affidavit of the suspects claiming that they committed robbery?3. Whether or not the the judge can compel the Fiscal to change the information.Held:

1. On the applicability of Article 48 of the RPC on complex crimes, a different rule governs where separate and distinct acts result in a number killed. Deeply rooted is the doctrine that when various victims expire from separate shots, such acts constitute separate and distinct crimes.5

In the case at bar, defendants performed several acts. And the informations charge conspiracy amongst them. Needless to state, the act of one is the act of all.10 Not material here, therefore is the finding in Lawas that it is impossible to ascertain the individual deaths caused by each and everyone of the accused. It is to be borne in mind, at this point, that apply the first half of Article 48, heretofore quoted, there must be singularity of criminal act; singularity of criminal impulse is not written into the law.11The respondent Judge reasons out in his order of May 31, 1966 that consolidation of the five cases into one would have the salutary effect of obviating the necessity of trying five cases instead of one. To save time, indeed, is laudable. Nonetheless, the statute confers upon the trial judge the power to try these cases jointly, such that the fear entertained by respondent Judge could easily be remedied.12Upon the facts and the law, we hold that the City Fiscal of Iligan City correctly presented the five separate informations four for murder and one for frustrated murder.2. As to the possibility of that there existed complex crime, the killing being necessary for a robbery based on an affidavit of a suspect, the rule of presumption long familiar is that official duty has been regularly performed.13 If the Fiscal has not seen fit to give weight to said affidavit wherein it is alleged that certain personal properties (transistor radio and money) were taken away by the culprits after the shooting, we are not to jettison the prosecutors opinion thereon. The Fiscal could have had reasons for his act. For one thing, there is the grave problem of proving the elements of that offense robbery. For another, the act could have been but a blind to cover up the real intent to kill. Appropriately to be noted here is that all the informations charged evident premeditation. With ponderables and imponderables, we are reluctant to hazard a guess as to the reasons for the Fiscals action. We are not now to say that, on this point, the Fiscal has abused his discretion. A prosecuting attorney, by the nature of his office, is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to prop up the averments thereof, or that the evidence at hand points to a different conclusion. This is not to discount the possibility of the commission of abuses on the part of the prosecutor. But we must have to recognize that a prosecuting attorney should not be unduly compelled to work against his conviction. In case of doubt, we should give him the benefit thereof. A contrary rule may result in our courts being unnecessarily swamped with unmeritorious cases. Worse still, a criminal suspects right to due process the sporting idea of fair play may be transgressed. So it is, that in People vs. Sope 75 Phil. 810, 815, this Court made the pronouncement that [i]t is very logical that the prosecuting attorney, being the one charged with the prosecution of offenses, should determine the information to be filed and cannot be controlled by the off ended party.143. The impact of respondent Judges orders is that his judgment is to be substituted for that of the prosecutors on the matter of what crime is to be filed in court. The question of instituting a criminal charge is one addressed to the sound discretion of the investigating Fiscal. The information he lodges in court must have to be supported by facts brought about by an inquiry made by him. It stands to reason then to say that in a clash of views between the judge who did not investigate and the fiscal who did, or between the fiscal and the offended party or the defendant, those of the Fiscals should normally prevail. In this regard, he cannot ordinarily be subject to dictation. We are not to be understood as saying that criminal prosecution may not be blocked in exceptional cases. A relief in equity may be availed of to stop it purported enforcement of a criminal law where it is necessary (a) for the orderly administration of justice; (b) to prevent the use of the strong arm of the law in an oppressive and vindictive manner; (c) to avoid multiplicity of actions; (d) to afford adequate protection to constitutional rights; and (e) in proper cases, because the statute relied upon is unconstitutional or was held invalid. 15 Nothing in the record would as much as intimate that the present case fits into any of the situations just recited.And at this distance and in the absence of any compelling fact or circumstance, we are loathe to tag the City Fiscal of Iligan City with abuse of discretion in filing separate cases for murder and frustrated murder, instead of a single case for the complex crime of robbery with homicide and frustrated homicide under the provisions of Article 294 (1) of the Revised Penal Code or, for that matter, for multiple murder and frustrated murder. We state that, here, the Fiscals discretion should not be controlled.[G.R. Nos. 151809-12. April 12, 2005]PRESIDENTIAL COMMISSION ONGOOD GOVERNMENT(PCGG),petitioner, vs.SANDIGANBAYAN (Fifth Division), LUCIO C. TAN, CARMEN KHAO TAN, FLORENCIO T. SANTOS, NATIVIDAD P. SANTOS, DOMINGO CHUA, TAN HUI NEE, MARIANO TAN ENG LIAN, ESTATE OF BENITO TAN KEE HIONG (represented by TARCIANA C. TAN), FLORENCIO N. SANTOS, JR., HARRY C. TAN, TAN ENG CHAN, CHUNG POE KEE, MARIANO KHOO, MANUEL KHOO, MIGUEL KHOO, JAIME KHOO, ELIZABETH KHOO, CELSO RANOLA, WILLIAM T. WONG, ERNESTO B. LIM, BENJAMIN T. ALBACITA, WILLY CO, ALLIED BANKING CORP., ALLIEDLEASINGANDFINANCE CORPORATION, ASIA BREWERY, INC., BASIC HOLDINGS CORP., FOREMOST FARMS, INC., FORTUNE TOBACCO CORP., GRANDSPAN DEVELOPMENT CORP., HIMMEL INDUSTRIES, IRIS HOLDINGS AND DEVELOPMENT CORP., JEWEL HOLDINGS, INC., MANUFACTURING SERVICES AND TRADE CORP., MARANAWHOTELS AND RESORTCORP., NORTHERN TOBACCO REDRYING PLANT, PROGRESSIVE FARMS, INC., SHAREHOLDINGS, INC., SIPALAY TRADING CORP., VIRGO HOLDINGS & DEVELOPMENT CORP., and ATTY. ESTELITO P. MENDOZA,respondents.

PUNO,J.:FACTS:In 1976, General Bank and Trust Company (GENBANK) encountered financial difficulties. As bailout, the Central Bank extended emergency loans to it which reached P310 million. GENBANK failed to recover and was declared insolvent, unable to resume business. Central Bank ordered its liquidation. At the public bidding of GENBANK's assets, Lucio Tan group submitted the winning bid. Subsequently, former Solicitor General Estelito P. Mendoza filed a petition with the Court of First Instance praying for the assistance and supervision of the court in GENBANK's liquidation as mandated by Sec. 29 of Republic Act No. 265. In 1986, PCGG was established to recover the alleged ill-gotten wealth of former Pres. Marcos, his family and his cronies. Pursuant to this mandate, PCGG filed with the Sandiganbayan a complaint against respondents Lucio Tan.PCGG issued several writs of sequestration on properties allegedly acquired by the respondents. Respondents Tan filed petitions for certiorari, prohibition and injuction to nullify among others the writs of sequestration. In these cases, respondents Tan were represented by former Solicitor General Estelito P. Mendoza who has then resumed his private practice of law. In 1991, PCGG filed motions to disqualify respondent Mendoza as counsel for respondents, invoking Rule 6.03 of the Code of Professional Responsibility which prohibits former government lawyers from accepting engagement or employment in connection with any matter in which he had intervened while in said service. ISSUE:Whether or not former Solicitor General Mendoza should be disqualified.HELD:No. The Court discussed the meaning of "matter" to which Rule 6.03 pertained to. It is any discrete, isolatable act as well as identifiable transaction or conduct involving a particular situation and specific party,and not merelyan act of drafting, enforcing or interpreting government or agency procedures, regulations or laws, or briefing abstract principles of law. Mendoza merely gave advice on the procedure to liquidate GENBANK and this is not the "matter" contemplated by Rule 6.03. It was an act of enforcing or interpreting government or agency procedures which do not fall within the scope of the term "matter" and cannot disqualify. Mendoza had nothing to do with the decision of the Central Bank to liquidate GENBANK. He did not participate in the sale of GENBANK to Allied Bank. The matter where he got himself involvedwas in informing Central Bank on theprocedureprovided by law to liquidate GENBANK thru the courts and in filing the necessary petition in Sp. Proc. No. 107812 in the then Court of First Instance.Code 6.03 of the Code of Professional Responsibilitycannot apply to respondent Mendoza because his alleged intervention while a Solicitor General in Sp. Proc. No. 107812 is an intervention on a matter different from the matter involved in Civil Case No. 0096 (to nullify the writs of sequestration).The meaning of "intervention." It only includes an act of a person who has the power to influence the subject proceedings. The intervention cannot be insubstantiated and insignificant. Again, the petition filed by Mendoza merely sought the assistance of the court in the liquidation of GENBANK. The principal role of the court in this type of proceedings is to assist the central Bank in determining claims of creditors against the GENBANK. In such a proceeding, the participation of the Office of the Solicitor General is not that of the usual court litigator protecting the interest of government.Balancing Policy ConsiderationsRule 6.03 of our Code of Professional Responsibility represents a commendable effort on the part of the IBP to upgrade the ethics of lawyers in the government service.Thus, the rule was not interpreted to cause achilling effect on government recruitment of able legal talent.In interpreting Rule 6.03, the Court also cast a harsh eye on its use as alitigation tactic to harass opposing counselas well as deprive his client of competent legal representation.It cannot be doubted that granting a disqualification motion causes the client to lose not only the law firm of choice, but probably an individual lawyer in whom the client has confidence. The effects of this prejudice to the right to choose an effective counsel cannot be overstated for it can result in denial of due process. The Court has to consider also the possible adverse effect of a truncated reading of the rule on the official independence of lawyers in the government service.Theposition of Solicitor General should be endowed with a great degree of independence.The mischief sought to be remedied by Rule 6.03 of the Code of Professional Responsibility is thepossible appearance of improprietyand loss of publicconfidence in the government.The Court should apply Rule 6.03 in all its strictness for it correctly disfavors lawyers whoswitch sides.The act of respondent Mendoza in informing the Central Bank on the procedure how to liquidate GENBANK is adifferent matterfrom the subject matter of Civil Case No. 0005 which is about the sequestration of the shares of respondents Tan,etal., in Allied Bank. Consequently, the danger that confidential official information might be divulged is nil, if not inexistent. To be sure, there areno inconsistent sidesto be bothered about in the case at bar. For there is no question that in lawyering for respondents Tan,et al., respondent Mendoza is not working against the interest of Central Bank. On the contrary, he is indirectly defending the validity of the action of Central Bank in liquidating GENBANK and selling it later to Allied Bank.Their interests coincide instead of colliding. It is for this reason that Central Bank offered no objection to the lawyering of respondent Mendoza in Civil Case No. 0005 in defense of respondents Tan,et al.There is no switching of sides for no two sides are involved.

People of the Philippines vs MaderaOn August 8, 2012 57 SCRA 349 Legal Ethics Prosecutor Must Recommend Dismissal of Case If There is No Ground To Sustain ItIn April 1970, while Elino Bana was sleeping in his house, he was shot by Raymundo Madera. Behind Madera were Marianito Andres and Generoso Andres. Elino Bana died before he could be brought to the hospital but he made a dying statement wherein he positively identified Madera as his shooter. Two of Banas sons who were at the house when the shooting happened identified Madera as the shooter as well as the two behind him. The trial court convicted the three for murder. They appealed. Then Solicitor General Estelito Mendoza recommended the conviction of Madera but also recommended the acquittal of Marianito and Generoso.ISSUE: Whether or not the conviction is correct.HELD: No, insofar as Marianito and Generoso is concerned Maderas guilt is proven beyond reasonable doubt. But Marianitos and Generosos guilt were not established. Their mere presence behind Madera when the latter shot and killed Bana is not constitutive of their guilt without any showing that they shared the criminal intent of Madera. It must be shown that they had knowledge of the criminal intention of the principal, which may be demonstrated by previous or simultaneous acts which contributes to the commission of the offense as aid thereto whether physical or moral. This was absent in the case at bar.The Supreme Court lauded the Solicitor General for recommending the acquittal of the two. The Supreme Court also emphasized that the prosecutors finest hour is not when he wins a case with the conviction of the accused. His finest hour is still when, overcoming the advocates natural obsession for victory, he stands up before the Court and pleads not for the conviction of the accused but for his acquittal. For indeed, his noble task is to prosecute only the guilty and to protect the innocent.People vs Sendaydiego, et. al. Chester Cabalza recommends his visitors to please read the original & full text of the case cited. Xie xie!

People vs Sendaydiego, et. al.G.R. No. L-33254 and 33253January 20, 1978

Facts:

In these three cases of malversation through falsification, the prosecution's theory is that in 1969 Licerio P. Sendaydiego, the provincial treasurer of Pangasinan, in conspiracy with Juan Samson y Galvan, an employee of a lumber and hardware store in Dagupan City, and with Anastacio Quirimit, the provincial auditor, as an accomplice, used six (6) forged provincial vouchers in order to embezzle from the road and bridge fund the total sum of P57,048.23.

The provincial voucher in these cases has several parts. In the upper part with the legend "ARTICLE OR SERVICE" the nature of the obligation incurred is indicated. That part is supposed to be signed by two officials of the provincial engineer's office and by the governor's representative.

The middle part of the voucher contains five numbered printed paragraphs.

Paragraph 1 is a certificate to be signed by the creditor. It is stated therein that the creditor vouches that the expenses "were actually and necessarily incurred". In the instant cases paragraph 1 was not signed presumably because it is not relevant to the purchase of materials for public works projects. Paragraph 2 is a certification that the expenses are correct and have been lawfully incurred. It is signed by the provincial engineer. Paragraph 3 contains these words: "Approved for pre-audit and payment, appropriations and funds being available therefore." This is signed by the provincial treasurer. Paragraph 4 is a certification which, as filed up in Exhibit K, Voucher No. 10724 dated February 28, 1969, certifying that the voucher has been pre-audited and signed by the auditor. Paragraph 5 is a certification signed by the provincial treasurer that the account mentioned in the provincial engineer's certification "was paid in the amount and on the date shown below and is chargeable as shown in the summary hereof. " It may be noted that the provincial treasurer signs two part of the voucher.

Issue:

Whether or not appellants are liable for the crimes of falsicification of public documents and six crimes of malversation?

Held:

Samson is convicted of six crimes of falsification of a public document and six crimes of malversation. In lieu of the penalties imposed by the trial court, he is sentenced to the following penalties: For each of the six falsification of the vouchers (Exh. K, O, P, Q, R and S), Samson is sentenced to an indeterminate penalty of two (2) years of prison correccional minimum, as minimum, to four (4) years of prision correccional medium, as maximum, and to pay a fine of three thousand pesos. For the malversation of the sum of P16,727.52 covered by voucher No. 10724 (Exh. K), Samson is sentenced to an indeterminate penalty of twelve (12) years of prision mayor maximum, as minimum, to seventeen (17) years of reclusion temporal medium, as maximum; to pay a fine in the amount of P16,727.52, and to indemnify the province of Pangasinan in the same amount (Criminal Case NO. 23349, L-33252). For the malversation of the sum of P14,571.81 covered by voucher No. 11995 (Exh. O), Samson is sentenced to an indeterminate penalty of twelve (12) years of prision mayor maximum, as minimum, to seventeen (17) years of reclusion temporal medium, as maximum; to pay a fine in the sum of P14,571.81, and to indemnify the province of Pangasinan in the same amount (Criminal Case No. 23351, L-33254). For the malversation of the sum of P6,290.60 covered by voucher No. 11870 (Exh. Q), Samson is sentenced to an indertiminate penalty of nine (9) years of prision mayor medium, as minimum, to thirteen (13) years of reclusion temporal minimum, as maximum; to pay a fine of P6,290.60, and to indemnify the province of Pangasinan in the same amount (Criminal Case No. 23350, L-33253). For the malversation of the sum of P9,769.64 covered by voucher No. 11871 (Exh. R), Samson is sentenced to an indeterminate penalty of nine (9) years of prision mayor medium, as minimum, to thirteen (13) years of reclusion temporal minimum, as maximum; to pay a fine of P9,769.64, and to indemnify the province of Pangasinan in the same amount (Criminal Case No. 23350, L-33253). For the malversation of the sum of P5,187.28, covered by voucher No. 11869 (Exh. P), Samson is sentenced to an indeterminate penalty of five (5) years of prision correccional maximum, as minimum, to eight (8) of prision mayor minimum, as maximum; to pay a fine of P5,187.28, and to indemnify the province of Pangasinan in the same amount (Criminal Case No. 23350, L-33253).

For the malversation of the sum of P4,501.38 covered by voucher no. 11872 (Exh. S), Samson is sentenced to an indeterminate penalty of five (5) years of prision correccional maximum, as minimum, to eight (8) years of prision mayor minimum, as maximum; to pay a fine of P4,501.38, and to indemnify the province of Pangasinan in the same amount (Criminal Case No. 23350, L-33253). In the service of the twelve penalties meted to Samson, the threefold limit provided for in article 70 of the Revised Penal Code should be observed (People vs. Escares, 102 Phil. 677), meaning that the maximum penalty that he should serve is three times the indeterminate sentence of twelve (12) years to seventeen (17) years, the severest penalty imposed on him, or thirty-six (36) years to fifty-one (51) years (see People vs. Peas, 68 Phil. 533). The maximum duration of his sentences should not exceed forty (40) years (Penultimate par. of art. 70; People vs. Alisub, 69 Phil. 362; People vs. Concepcion, 59 Phil. 518, 68 Phil. 530 and 69 Phil. 58).

The estate of the late Licerio P. Sendaydiego is ordered to indemnify the province of Pangasinan in the sum of P57,048.23. Samson and the said estate are solitarily liable for the said indemnity (Art. 110, Revised Penal Code). Samson should pay one-half of the costs. SO ORDERED.

PAJARES VS. ABAD SANTOS 30 SCRA 748Facts:Appellant Pajares was engaged in the business of buying and selling merchandise at her stall and appelle Udharam Bazar & Co. was one of her creditors from whom she used to buy on credit ready-made goods for resale.Consequently, the company sued Pajares for the recovery of a certain sum of money for the goods delivered to her in good condition (the same having been sold), but did not make the full payment. Pajares, however, moved for a bill of particulars, alleging that without which she would not be able to meet the issues raised in the complaint. Such having been denied, appellant moved for a motion for reconsideration.The samewas also denied and clogged the court for seven years.Issue:Whether or not there has been afaithful adherence (on the part of Pajares lawyer) to Rule 7, section 5 of the Rules of Court.Held:No, there was nofaithful adhererence.Clearly, there must be faithful adherence to Rule 7, section 5 of the Rules of Court which provides that the signature of an attorney constitutes a certificate by him that he has read the pleading and that to the best of his knowledge, information and belief, there is good ground to support it; and that it is not interposed for delay and expressly admonishes that for a willful violation of this rule an attorney may be subjected to disciplinary action.Had appellant been but prudently advised by her counsel to confess judgment and ask from her creditor the reasonable time she needed to discharge her lawful indebtedness, the expenses of litigation that she has incurred would have been more than sufficient to pay off her just debt to appelle.

Misamin vs. San Juan (Adm Case 1418 August 31, 1976) Post under case digests, Legal Ethics at Sunday, March 18, 2012 Posted by Schizophrenic Mind Facts: Herein respondent admits having appeared as counsel for the New Cesars Bakery in the proceeding before the NLRC while he held office as captain in the Manila Metropolitan Police. Respondent contends that the law did not prohibit him from such isolated exercise of his profession. He contends that his appearance as counsel while holding a government position is not among the grounds provided by the Rules of Court for the suspension or removal of attorneys.

Issue: Whether or not the administrative case against the defendant should prosper

Held: The court ruled in the negative. The court ruled that the matter is to be decided in an administrative proceeding as noted in the recommendation of the Solicitor General. Nonetheless, the court held that while the charges have to be dismissed, still it would not be inappropriate for respondent member of the bar to avoid all appearances of impropriety. Certainly, the fact that the suspicion could be entertained that far from living true to the concept of a public office being a public trust, he did make use, not so much of whatever legal knowledge he possessed, but the influence that laymen could assume was inherent in the office held not only to frustrate the beneficent statutory scheme that labor be justly compensated but also to be at the beck and call of what the complainant called alien interest, is a matter that should not pass unnoticed. Respondent, in his future actuations as a member of the bar should refrain from laying himself open to such doubts and misgivings as to his fitness not only for the position occupied by him but also for membership in the bar. He is not worthy of membership in an honorable profession who does not even take care that his honor remains unsullied.

IN RE GUTTIEREZ

Legal Ethics 5 SCRA 661 Conditional Pardon will not bar disbarmentAttorney Gutierrez was convicted for the murder of one Filemon Samaco in 1956. He was sentenced to the penalty of reclusion perpetua. In 1958, after serving a portion of the penalty, he was granted a conditional pardon by the President. He was released on the condition that he shall not commit any crime. Subsequently, the widow of Samaco filed a disbarment case against Gutierrez by reason of the latters conviction of a crime involving moral turpitude. Murder, is without a doubt, such a crime.ISSUE: Whether or not Gutierrez may be disbarred considering the fact that he was granted pardon.HELD: Yes. The pardon granted to Gutierrez is not absolute but conditional. It merely remitted his sentence. It does not reach the offense itself. Gutierrez must be judged upon the fact of his conviction for murder without regard to the pardon (which he invoked in defense). The crime was actually qualified by treachery and aggravated by its having been committed in hand, by taking advantage of his official position (Gutierrez being municipal mayor at the time) and with the use of motor vehicle.The degree of moral turpitude involved is such as to justify his being purged from the profession.De Roy vs Court of AppealsOn November 5, 2010 157 scra 766Publication of Supreme Court Decisions in the Official GazetteThe firewall of a burned out building owned by petitioners collapsed and destroyed the tailoring shop occupied by the family of the private respondents resulting in injuries to private respondents had been warned by petitioners to vacate their shop in view of its proximity to the weakened wall but the former failed to do. In the RTC, petitioners were found guilty of gross negligence. On the last day of the 15 days period to file an appeal, petitioners filed a motion for reconsideration which was again denied. The Supreme Court finds that Court of Appeal did not commit a grave abuse of discretion when it denied petitioners motion for reconsideration. It correctly applied the rule laid down in Habulayas vs Japzon. Counsel for petitioner contends that the said case should not be applied non-publication in the Official Gazette.ISSUE: Whether or not Supreme Court decisions must be published in the Official Gazette before they can be binding.HELD: There is no law requiring the publication of Supreme Court decision in the Official Gazette before they can be binding and as a condition to their becoming effective. It is bounden duty of counsel as lawyer in active law practice to keep abreast of decisions of the Supreme Court particularly where issues have been clarified, consistently reiterated and published in the advance reports of Supreme Court decisions and in such publications as the SCRA and law journals.

Oronce V. CaFacts: Private respondent Priciliano B. Gonzales Development Corporation was the registered owner of a parcel of land at No. 52 Gilmore Street, New Manila, Quezon City.In June 1988, it obtained a four million peso loan from the China Banking Corporation.To guarantee payment of the loan, private respondent mortgaged the Gilmore property and all its improvements to said bank.Due to irregular payment of amortization, interests and penalties on the loan accumulated through the years.On April 13, 1992, private respondent, through its president, Antonio B. Gonzales, signed and executed a Deed of Sale with Assumption of Mortgage covering the Gilmore property and its improvements, in favor of petitioners Rosita Flaminiano and Felicidad L. Oronce. The deed, states that the sale was in consideration of the sum ofP5,400,000.00 and that private respondent will deliver said property after expiration of 1 year from date of sale.On the other hand, petitioners bound themselves to pay private respondents indebtedness with China Banking Corporation.In fulfillment of the terms and conditions embodied in the Deed of Sale with Assumption of Mortgage, petitioners paid private respondents indebtedness with the bank. However, private respondent reneged on its obligation to deliver possession of the premises to petitioners upon the expiration of the one-year period from April 13, 1992.Almost six months later since the execution of the instrument or on October 2, 1992, petitioners caused the registration of the Deed of Sale with Assumption of Mortgage with the Register of Deeds.Simultaneously, they obtained a new title, consistent with the fact that they are the new owners of the property. Sometime in July 1993, they paid the real estate taxes.On November 12, 1993, petitioners sent private respondent a demand letter asking it to vacate the premises.Said letter, just like three other consecutive notices sent through the Quezon City post office, was unclaimed.Hence, on April 11, 1994, petitioners filed before the Metropolitan Trial Court of Quezon City, a complaint for unlawful detainer against private respondent.In its answer to the complaint, private respondent raised the issue of ownership over the property.It impugned petitioners right to eject, alleging that petitioners had no cause of action against it because it was merely a mortgagee of the property.It argued that when the parties executed the Deed of Sale with Assumption of Mortgage, its real intention was to forge an equitable mortgage and not a sale. It pointed out three circumstances indicative of an equitable mortgage, namely: inadequacy of the purchase price, continued possession by private respondent of the premises, and petitioners retention of a portion of the purchase price.MTC ruled in favor of petitioners Flaminiano and Oronce. On appeal to the RTC, it affirmed the decision of MTC. On Dec q2 1995 private respondent filed with the CA a petition for certiorari with TRO and preliminary injunction. CA ruled in favor of private respondents and granted the TRO and Preliminary Injunction enjoining the implementation of the writ of execution and the decision of the RTC which is the basis of this petition. However, pending litigation in this Court, private respondent filed an urgent motion to cite petitioner Rosita L. Flaminiano and her husband, Atty. Eduardo B. Flaminiano, in contempt of court. The motion was founded on an affidavit of Dr. Tadeo Gonzales who resided at the contested property, deriving his right to do so from private respondent corporation that is owned by his family. Gonzales alleged that on September 20, 1997, petitioner Flaminiano and her husband entered the property through craftiness and intimidation.At around 5:30 p.m. on that day, two (2) men knocked at the gate.When the houseboy, Luis R. Fernandez, opened the gate for pedestrians tentatively, the two men told him that they would like to visit Gonzales mother who was ailing.Once inside, the two men identified themselves as policemen and opened the gate for twenty (20) men, two (2) trucks and an L-300 van to enter.When Gonzales went outside the house, he saw thirty (30) to forty (40) men and two (2) trucks entering the driveway. The person he asked regarding the presence of those people inside the property turned out to be the brother of petitioner Flaminiano.That person said, Kami ang may-ari dito. Matagal na kaming nagtitiis, kayo ang dapat sa labas.After Gonzales had told him that the property was still under litigation before this Court, the man said, Walang Supreme Court Supreme Court.When Gonzales asked petitioner Flaminiano, who was inside the premises, to order the people to leave, she said, Papapasukin naminito dahil sa amin ito. Maglalagay ako ng tao diyan sa loob, sa harap, sa likod. Wala ng pakiusap.When a power generator was brought inside the property and Gonzales pleaded that it be taken out because the noise it would create would disturb his ailing mother, Emiliana Gonzales, petitioner Flaminiano said, Walang awa-awa sa akin.Atty. Flaminiano butted in and, referring to Gonzales mother, said, Ialis mo na, matanda na pala.When Gonzales prevented the switching on of some lights in the house due to faulty wiring, Atty. Flaminiano suggested, Bakit hindi mo ipasunog ito? May insurance pa kayo 5 million, madali lang yan. Short circuit.Since the Flaminianos and their crew were not about to leave the property, Gonzales called up his brother, Atty. Antonio Gonzales, and informed him of what happened.However, instead of confining themselves in the driveway, the Flaminianos and their group entered the terrace, bringing in food.Gonzales was all the while concerned about his 81-year-old mother who had just been discharged from the hospital. However, the Flaminianos stayed until the next day, September 22, 1997, using the kitchen, furniture and other fixtures in the house. Gonzales took pictures of Flaminiano and his companions. When Atty. Flaminiano arrived, he confronted Gonzales and told him, Hindi ako natatakot kahit kanino ka pa mag-report, kahit pa sa Supreme Court, gusto ko nga mag-reklamo kayo para matapos ang kaso. Sa September 25, may shooting dito, gagawin ko ang gusto ko dito.Also, the Flaminianos committed additional contumacious acts in preventing another member of the family, Mrs. Cipriana Gonzales, from entering the property.Mrs. Gonzales said that the Flaminianos and their people used the whole house, except the bedrooms, for their filming activities.Thereafter, private respondent filed an urgent motion for the issuance of a temporary restraining order and/or writ of preliminary injunction with this Court to enjoin petitioners, Atty. Flaminiano and their representatives and agents from preventing private respondent, its agents and representatives from entering the property and to cease and desist from occupying the property or from committing further acts of dispossession of the property. On October 13, 1997, this Court issued the temporary restraining order prayed for. However, instead of complying with this Courts order, petitioners continued occupying the property. On October 16, 1997, after receiving a copy of the TRO, petitioners put up a huge billboard in front of the property stating that it is the national headquarters of the Peoples Alliance for National Reconciliation and Unity for Peace and Progress (PANRUPP).In their comment on the motion for contempt, petitioners noticeably did not controvert the facts set forth by private respondent in said motion. Instead, it reasserted its claim of ownership over the property.They informed the Court that they are now leasing the property to PANRUPP from October 1, 1997 to September 30, 1998. They alleged, however, that the property is in a deplorable state of decay and deterioration that they saw the need to act swiftly and decisively to prevent further destruction of the property where they invested millions of pesos of their life-time savings to acquire the same. Hence, they sought the assistance of barangay officials in Barangay Mariana, New Manila who helped them effect the peaceful entry into the property of the petitioners without the use of strategy, force and intimidation contrary to what was alleged in the motion for contempt.They peacefully took over possession of the property on September 20, 1997 but allowed the immediate members of the family of private respondents president to stay on.The family finally agreed to vacate the premises on October 5, 1997 upon the offer of the petitioners to shoulder partially the expenses for the hospitalization of the ailing mother at the St. Luke General Hospital where she was brought by an ambulance accompanied by a doctor at petitioners expense.Petitioners questioned the issuance by this Court of the TRO on October 13, 1997, asserting that when it was issued, there were no more acts to restrain the illegal occupants of the subject property (as they) had already peacefully vacated the premises on October 5, 1997 or more than a week after the said TRO was issued by the Third Division of this Court. They prayed that the motion for contempt be denied for lack of merit and that the TRO issued be lifted and set aside.Issue: WON the acts of Atty Flaminiano are appropriateThe issue of ownership has not been definitively resolved for the provisional determination of that issue that should have been done by the MTC at the earliest possible time, would only be for the purpose of determining who has the superior right to possess the property. Inasmuch as this Court has resolved that the rightful possessor should have been private respondent and its representatives and agents, the TRO issued by this Court on October 13, 1997 should not be lifted.That the TRO was issued days before private respondent left the property is immaterial. What is in question here is lawful possession of the property, not possession on the basis of self-proclaimed ownership of the property.For their part, petitioners should cease and desist from further exercising possession of the same property which possession, in the first place, does not legally belong to them.The conduct of petitioner Flaminiano in taking possession over the property as alleged by private respondent through Tadeo Gonzales is deplorably high-handed. On an erroneous assumption that she had been legally vested with ownership of the property, she took steps prior to the present proceedings by illegally taking control and possession of the same property in litigation.Her act of entering the property in defiance of the writ of preliminary injunction issued by the Court of Appeals constituted indirect contempt under Section 3, Rule 71 of the Rules of Court that should be dealt with accordingly.Be that as it may, what is disturbing to the Court is the conduct of her husband, Eduardo Flaminiano, a lawyerwhose actuations as an officer of the court should be beyond reproach.His contumacious acts of entering the Gilmore property without the consent of its occupants and in contravention of the existing writ or preliminary injunction issued by the Court of Appeals and making utterances showing disrespect for the law and this Court, are certainly unbecoming of a member of the Philippine Bar.To be sure, he asserted in his comment on the motion for contempt that petitioners peacefully took over the property.Nonetheless, such peaceful take-over cannot justify defiance of the writ of preliminary injunction that he knew was still in force.Notably, he did not comment on nor categorically deny that he committed the contumacious acts alleged by private respondent.Through his acts, Atty. Flaminiano has flouted his duties as a member of the legal profession.Under the Code of Professional Responsibility, he is prohibited from counseling or abetting activities aimed at defiance of the law or at lessening confidence in the legal system.WHEREFORE, the instant petition for review oncertiorariis hereby DENIED and the questioned Decision of the Court of Appeals AFFIRMED without prejudice to the filing by either party of an action regarding the ownership of the property involved. The temporary restraining order issued on October 13, 1997 is hereby made permanent.Petitioners and their agents are directed to turn over possession of the property to private respondent.Petitioner Rosita Flaminiano is hereby held guilty of contempt of court for disobeying the writ of injunction issued by the Court of Appeals and accordingly finedP20,000.00 therefor.Her counsel and husband, Atty. Eduardo B. Flaminiano, is ordered to pay a fine ofP25,000.00 for committing contumacious acts unbecoming of a member of the Philippine Bar with a stern warning that a repetition of the same acts shall be dealt with more severely.Let a copy of this Decision be attached to his record at the Office of the Bar Confidant.

Jose v. CAFACTS: Petitioner Lorenzo Jose who was convicted of illegal possession of explosives (handgrenade) and sentenced to suffer imprisonment of five years, seeks a new trial which was denied him by the Court. petitioner Jose was arrested by the local police leading to the filing with the Court of First Instance of Pampanga, Branch III of several criminal cases against him to wit: illegal discharge of firearm (Crim. Case 6235), robbery (Crim. Case 6236) and illegal possession of explosives (Crim. Case 6237). The records of Criminal Case 6237 were then elevated to the Court of Appeals where petitioner as accused-appellant raised the issues of (1) an erroneous conviction for illegal possession of explosives when there was no proof of an essential element of the crime, and (2) erroneous denial of his motion to reopen the case for the reception of his permit to possess the handgrenade.petitioner was facing a criminal prosecution for illegal possession of a handgrenade in the court below. He claimed to be an agent of the Philippine Constabulary with a permit to possess explosives such as the handgrenade in question. However, he found himself in a situation where he had to make a choice reveal his Identity as an undercover agent of the Philippine Constabulary assigned to perform intelligence work on subversive activities and face possible reprisals or even liquidation at the hands of the dissidents considering that Floridablanca the site of the incident, was in the heart of "Huklandia", or ride on the hope of a possible exoneration or acquittal based on insufficiency of the evidence of the prosecution.CA ruled affirming the findings of fact and the judgment of conviction of the court a quo, and declaring that no reversible error was committed by the latter. Forthwith, appellant Lorenzo Jose assisted by counsel, Atty. Francisco Carreon, filed with Us this petition for review which We denied outright. The Solicitor General opposed the granting of the foregoing motion for reconsideration claiming that there was neither a denial of "substantial justice nor error of any sort on the part of respondent Court of Appeals, affirming the judgment of convinction," and that it being admitted by petitioner that the evidence sought to be introduced by him at the new trial is not newly discovered evidence, the denial of the new trial "visibly papers as correct". This Opposition drew a lengthy reply from petitioner's counsel.a Manifestation was submitted by the Solicitor General informing the Court that in view of the " Persistence of accused petitioner Lorenzo Jose both before this Honorable Court and respondent Court of Appeals as to his alleged existing appointment as PC Agent and/or authority to handgrenade," in the interest of justice, he was constrained to make pertinent inquiries from the PC Chief, Gen. Fidel V. Ramos who in reply sent his letter.the Court resolved to set aside the denial of this petition for review, to give due course and consider the Petition as a special civil action. ISSUE: W/N the court acted with grave abuse of discretionHELD: YES. The failure of the Court of Appeals to appreciate the merits of the situation, involving as it does the liberty of an individual, thereby closing its ear to a plea that a miscarriage of justice be averted, constitutes a grave abuse of discretion which calls for relief from this Court.At the outset, We give due credit to the Solicitor General and his staff for upholding the time-honored principle set forth in perspicuous terms by this Court in Suarez vs. Platon, et al that a prosecuting officer, as the representative of a sovereignty whose obligation and interest in a criminal prosecution is not that it shall win a case but that justice shall be done, has the solemn responsibility to assure the public that while guilt shall not escape, innocene shall not suffer.We do not question the correctness of the findings of the Court of Appeals that the evidence sought to be presented by the petitioner do not fall under the category of newly-discovered evidence because the same his alleged appointment as an agent of the Philippine Constabulary and a permit to possess a handgrenade were supposed to be known to petitioner and existing at the time of trial and not discovered only thereafter.Without revealing his Identity as an agent of the Philippine Constabulary, he claimed before the trial judge that he had a permit to possess the handgrenade and prayed for time to present the same. The permit however could not be produced because it would reveal his intelligence work activities. Came the judgment of conviction and with it the staggering impact of a five-year imprisonment. The competent authorities then realized that it was unjust for this man to go to jail for a crime he had not committed, hence, came the desired evidence concerning petitioner's appointment as a Philippine Constabulary agent and his authority to possess a handgrenade for the protection of his person, but, it was too late according to the trial court because in the meantime the accused had perfected his appeal.We find and hold that the above circumstances justify a reopening of petitioner's cas to afford him the opportunity of producing exculpating exculpating evidence. An outright acquittal from this Court which petitioner seeks as an alternative relief is not As correctly stressed by the Solicitor General, the People is to be given the chance of examining the documentary sought to be produced, and of cross-examining the persons who executed the same, as well as the accused himself, now petitioner, on his explanation for the non-production of the of the evidence during the trial.

FAR EASTERN SHIPPING COMPANY vs. COURT OF APPEALSG.R. No. 130068 October 1, 1998

Facts:M/V Pavlodar owned and operated by the Far Eastern Shipping Company (FESC) arrived at the port of Manila. SenenGavino was assigned by the Manila Pilot's Association (MPA) to conduct docking manuevers for the safe berthing of the vessel. Gavino stationed himself in the bridge, with the master of the vessel, Victor Kavankov, beside him.When the vessel was already about 2000 feet from the pier, Gavino ordered the anchor dropped. Kavankov relayed the orders to the crew of the vessel. However the anchor did not hold as expected. The speed of the vessel did not slacken.A commotion ensued between the crew members. When Gavino inquired about the commotion, Kavankov assured Gavino that there was nothing to it. The bow of the vessel rammed into the apron of the pier causing considerable damage to the pier. PPA filed a complaint for a sum of money against FESC, Gavino and MPA. CA ruled in favor of PPA holding them liable with MPA (employer of Kavankov) entitled to reimbursement from Gavino.

Issue:Are the counsels for the parties committed acts which require the exercise of the court's disciplinary powers?

Held:YES. The records show that the law firm of Del Rosario and Del Rosario thru its associate, AttyTria, is the counsel of record for FESC in both GR no 130068 and GR no 130150. GR 130068 which is assigned to the Court's second division, commenced with the filing of a verified motion for extension of time which contained a certification against forum shopping signed by counsel Triastating that to the best of his knowledge there is no action or proceeding pending in the SC, CA or any other tribunal. Reviewing the records, the court finds that the petition filed by MPA in GR no, 130150 then pending with the third division was duly filed with a copy thereof furnished by registered mail to counsel for FESC (attyTria). It would be fair to conclude that when FESC filed its petition GR no 130068, it would aready have received a copy of the copy of the petition by MPA. It wa therefore encumbent upon FESC to inform the court of the pending action. But considering that it was a superfluity at that stage of the proceeding , it being unnecessary to file such certification of non forum shopping with a mere motion for extension, the court disregarded such error. On the other hand it took the OSG, representing PPA, an ordinately and unreasonably long period of time to file its comment, thus unduly delaying the resolution of these cases. In GR no 130068, it took 210 days before the OSG filed its comment. FESC was not even furnished with a copy. In Gr no 130150 it took 180 days before comment was filed. This disinclination of the OSG to seasonably file required pleadings constitutes deplorable disservice to the public and can only be categorized as inefficiency on the part of the govt law office. Counsel for FESC, the law firm of Del Rosario and Del Rosario, specifically its asscociateTria is reprimaded and warned that a repetition of the same acts shall be dealt with severely. The original members of the legal tean of the OSG are admonished and warned tha a repetition shall also be dealt with more stringently. Bakalangitanong kung ano ruling: The decision of the CA is affirmed. Gavino, MPA and FESC are declared solidarily liable with MPA entitled to reimbursement from Gavino for such amount of the adjudged pecuniary liability in excess of the amount equivalent to 75% of its prescribed reserved fund. G.R. No. 104599 March 11, 1994JON DE YSASI III, petitioner, vs.NATIONAL LABOR RELATIONS COMMISSION (FOURTH DIVISION), CEBU CITY, and JON DE YSASI, respondents.FACTS:Petitioner was employed by his father, herein private respondent, as farm administrator of Hacienda Manucao in Hinigaran, Negros Occidental sometime in April, 1980. Prior thereto, he was successively employed as sales manager of Triumph International (Phil.), Inc. and later as operations manager of Top Form Manufacturing (Phil.), Inc. His employment as farm administrator was on a fixed salary, with other allowances covering housing, food, light, power, telephone, gasoline, medical and dental expenses.As farm administrator, petitioner was responsible for the supervision of daily activities and operations of the sugarcane farm such as land preparation, planting, weeding, fertilizing, harvesting, dealing with third persons in all matters relating to the hacienda and attending to such other tasks as may be assigned to him by private respondent. For this purpose, he lived on the farm, occupying the upper floor of the house there.Following his marriage on June 6, 1982, petitioner moved to Bacolod City with his wife and commuted to work daily. He suffered various ailments and was hospitalized on two separate occasions in June and August, 1982. In November, 1982, he underwent fistulectomy, or the surgical removal of the fistula, a deep sinuous ulcer. During his recuperation which lasted over four months, he was under the care of Dr. Patricio Tan. In June, 1983, he was confined for acute gastroenteritis and, thereafter, for infectious hepatitis from December, 1983 to January, 1984.During the entire periods of petitioner's illnesses, private respondent took care of his medical expenses and petitioner continued to receive compensation. However, in April, 1984, without due notice, private respondent ceased to pay the latter's salary. Petitioner made oral and written demands for an explanation for the sudden withholding of his salary from Atty. Apolonio Sumbingco, private respondent's auditor and legal adviser, as well as for the remittance of his salary. Both demands, however, were not acted upon.ISSUE:WON petitioner abandoned his work.HELD:No. It is submitted that the absences of petitioner in his work from October 1982 to December 1982, cannot be construed as abandonment of work because he has a justifiable excuse. The elements of abandonment as a ground for dismissal of an employee are as follows:(1) failure to report for work or absence without valid or justifiable reason; and (2) clear intention to sever the employer-employee tie (Samson Alcantara, Reviewer in Labor and Social Legislation, 1989 edition, p. 133).This Honorable Court, in several cases, illustrates what constitute abandonment. In Dagupan Bus Company v. NLRC (191 SCRA 328), the Court rules that for abandonment to arise, there must be a concurrence of the intention to abandon and some overt act from which it may be inferred that the employee has no more interest to work. Similarly, in Nueva Ecija I Electric Cooperative, Inc. v. NLRC (184 SCRA 25), for abandonment to constitute a valid cause for termination of employment, there must be a deliberate, unjustified refusal of the employee to resume his employment. . . Mere absence is not sufficient; it must be accompanied by overt acts unerringly pointing to the fact that the employee simply does not want to work anymore.There are significant indications in this case, that there is no abandonment. First, petitioner's absence and his decision to leave his residence inside Hacienda Manucao, is justified by his illness and strained family relations. Second he has some medical certificates to show his frail health. Third, once able to work, petitioner wrote a letter (Annex "J") informing private respondent of his intention to assume again his employment. Last, but not the least, he at once instituted a complaint for illegal dismissal when he realized he was unjustly dismissed. All these are indications that petitioner had no intention to abandon his employment.

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