CASE BrieF NO. 2018-0426

CASE: Oliver Fabugais vs.Atty. Berardo C. Faundo Jr. [G.R. No. 10145 June 11, 2018]

PONENTE: AssociateJustice Mariano Del Castillo

SUBJECT:

  1. Legal Ethics:
    i. Death of complainant – effect
    ii. Code of Professional Responsibility – Canon 7

A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law.”

FACTS:        Oliver Fabugais filed a complaint against Atty. Berardo C. Faundo, Jr. for gross misconduct and conduct unbecoming of a lawyer for having allegedly engaged in illicit and immoral relations with his wife, Annaliza Lizel B. Fabugais.

It was alleged that then 10-year old girl Marie Nicole Fabugais, daughter of Oliver, saw Atty Faundo (whom Marie Nicole call as “Tito Attorney”) in the same bed with her and her mother, Annaliza, and that she saw the lawyer embracing her mother while they were sleeping during their stay at his house.

Marie Nicole further recounted that the next morning, while she was watching television along with her mother, Ate Mimi and Ate Ada, Atty. Faundo who just had a shower, and clad only in a towel or “tapis,” suddenly entered the room; that she (Marie Nicole) along with her Ate Mimi and her Ate Ada, were told to step outside the room, while her mother and Atty. Faundo remained inside the room.

Atty. Faundo denied that he had had any immoral relations with Annaliza. He insisted that he was incapable of committing the misconduct imputed to him for three simple reasons to wit: because he is a good father to his three children, because he is a respected civic leader, and because he had never been the subject even of a complaint with the police. He claimed that complainant tiled the instant complaint simply “to harass him from practicing his legitimate profession, and for no other reason.”

IBP Investigating Commissioner Dennis A. B. Funa found Atty. Faundo guilty of violating Rule 1.01 of the Code of Professional Responsibility.

The IBP-Board of Governors, in its Resolution, adopted and approved the findings and recommendation of the Investigating Commissioner.

Meanwhile, complaint’s counsel Atty. Mario Frez filed a Notice, Manifestation, and Motion for Withdrawal from this case, stating that complaint had passed away.

ISSUES:

A) Whether the case will still proceed despite the death of death of the complainant.
B) Did Atty. Faundo in fact commit acts that are grossly immoral, or acts that amount to serious moral depravity, that would warrant or call for his disbarment or suspension from the practice of law?
C) Whether Atty. Faundo should be held administratively liable.

RULING:

A)      It bears stressing that this case can proceed in spite of complainant’s death and the apparent lack of interest on the part of complainant’s heirs. 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.

B)       Going by the eyewitness testimony of complainant’s daughter Marie Nicole, raw or explicit sexual immorality between Atty. Faundo and complainant’s wife was not established as a matter of fact.

“Immoral conduct” has been defined as that conduct which is so willful, flagrant, or shameless as to show indifference to the opinion of good and respectable members of the community. This Court has held that for such conduct to warrant disciplinary action, the same must be “grossly immoral, that is, it must be so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree.”

It is not easy to stale with accuracy what constitutes “grossly immoral conduct,” let alone what constitutes the moral delinquency and obliquity that renders a lawyer unfit or unworthy to continue as a member of the bar in good standing.

C)      Yes. It can in no wise or manner be argued that Atty. Faundo’s behavior was par for the course for members or the legal profession. Lawyers are mandated to do honor to the bar at all times and to help maintain the respect of the community for the legal profession under all circumstances. Canon 7 of the Code of Professional Responsibility provides:

A lawyer shall at all times uphold the integrity and dignity of the legal profession, and support the activities of the Integrated Bar.

Rule 7.03 of the Code or Professional Responsibility further provides:

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.

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.

The acts complained or in this case might not be grossly or starkly immoral in its rawness or coarseness, but they were without doubt condemnable. Atty. Faundo who made avowals to being a respectable father to three children, and also to being a respected leader of his community apparently had no qualms or scruples about being seen sleeping in his own bed with another man’s wife, his arms entwined in tender embrace with the latter. Atty. Faundo’s claim that he was inspired by nothing but the best of intentions in inviting another married man’s wife and her 10-ycar old daughter to sleep with him in the same bed so that the three of them could enjoy a good night’s rest in his air conditioned chamber, reeks with racy, ribald humor.

And in aggravation of the aforementioned unseemly behavior, Atty. Faundo apparently experienced neither qualms nor scruples at all about exploding into the room occupied by n married man’s wife and her 10-year old daughter and their two other women companions clad with nothing else but a “tapis” or a towel. His scanty trappings gave him no license to intrude into a small room full of women. Atty. Faundo could have simply asked everyone in the room to step outside for a little while. Or he could have donned his clothing elsewhere. But these things seemed to have been totally lost to Atty. Faundo’s density. Indeed, Atty. Faundo seemed to have forgotten that there are rules other men – decent men, – live by.

Atty. Faundo’s defense that he was a “respectable father with three children” and that he was “respected civic leader” to boot, flies in the face of a young girl’s perception of his diminished deportment. It does not escape this Court’s attention that the 10-year old Marie Nicole called Atty. Faundo “Tito Attorney.” Indeed, by calling Atty. Faundo as “Tito Attorney” Marie Nicole effectively proclaimed her avuncular affection for him, plus her recognition of his being a member of the legal profession. We believe that Marie Nicole must have been a bit disappointed with what she saw and observed about the manners, predilections and propensities of her ”Tito Attorney.” In fact, a close examine of Marie Nicole’s testimony cannot fail to show that in Marie Nicole’s young mind, it was clearly not right, appropriate or proper for her “Tito Attorney” to be sharing the same bed with her and her· mother, and for her mother to remain alone in the same room with her “Tito Attorney,” while this “Tito Attorney” was dressing up. In all these happenings, a modicum of decency should have impelled this “Tito Attorney” to behave more discreetly mid more sensitively, as he could not have been unaware that Marie Nicole was observing him closely and that she could be forming her impressions of lawyers and the legal profession by the actions and the behavior of this, her “Tito Attorney.”

The Fallo

“WHEREFORE, premises considered, Atty. Faundo Atty. Berardo C. Faundo, Jr. is hereby SUSPENDED from the practice of law for one (1) month, reckoned from receipt of a copy of this Decision. He is hereby WARNED to be more careful and more circumspect in all his actions, and to be mindful of the kind of example he holds up, especially to impressionable young people, lest he brings upon himself a direr fate the second time around.”

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THINGS DECIDED:

A) Disciplinary case against lawyers can proceed in spite of complainant’s death and the apparent lack of interest on the part of complainant’s heirs.

B) 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.

C) “Immoral conduct” has been defined as that conduct which is so willful, flagrant, or shameless as to show indifference to the opinion of good and respectable members of the community.

D) 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.

‘Stand by things decided’ ~ Stare Decisis


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