Nena Ybañez Zerna vs. Atty. Manolo M. Zerna | A.C. No. 8700, September 08, 2020

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Republic of the Philippines
SUPREME COURT
Manila

EN BANC

A.C. No. 8700 | September 08, 2020

Nena Ybañez Zerna, Complainant,

Vs.

Atty. Manolo M. Zerna, Respondent.

PER CURIAM:

This administrative case stemmed from a Complaint-Affidavit[1] for disbarment dated August 6, 2010 filed by Nena Ybañez Zerna (complainant) against her husband, Atty. Manolo M. Zerna (respondent), charging the latter with gross immorality.

The facts are as follows.

Complainant and respondent were married on May 6, 1990 at the Mary Immaculate  Church  in  Dumaguete  City.  Their  union  produced  three daughters: Phoebe Manelle, Kristine Anne, and June Evangel.

In May 1999, respondent took his oath as a member of the Bar.

 

Complainant alleged that after passing the Bar, respondent stopped extending financial support to their children and started having illicit affairs with women.

In September  1999, complainant  discovered  that respondent  was involved with a balikbayan named Grace, whom he met up with in Cebu City, based on their email correspondence. This affair did not last long. By December 1999, respondent was engaged in another illicit relationship with a woman named Judelyn.

When complainant  found out about this affair, she went to the apartment in Dumaguete City where Judelyn lived and was surprised when it was respondent himself who opened the door. Complainant then had a confrontation with respondent and Judelyn, wherein respondent confessed about the affair and told complainant that between her and Judelyn, he would choose the latter. In spite of her husband’s confession, complainant was still able to convince him to go home with her. Judelyn and respondent, however, continued their relationship.

Complainant  claimed that because of her husband’s extramarital affairs, they started having frequent arguments and fights.  On March 14, 2001, respondent mauled complainant after she confronted him about a letter she received which was purportedly sent by Judelyn. She then filed a criminal complaint for Less Serious Physical Injuries against the respondent before the Provincial Prosecutor’s Office of Negros Oriental. After the said incident, the complainant decided to leave the respondent as she could no longer take his emotional, psychological, and physical abuse.

The complaint further alleged that apart from Judelyn, respondent maintained romantic relations with another woman named Evelyn Martinez (Evelyn). Complainant said she discovered the affair when she saw the two having a dinner date in a restaurant in Tanjay City. Thereafter, she would see respondent and Evelyn roaming around the city riding either her husband’s motorcycle or his car. On July 5, 2009, complainant filed criminal charges against respondent for concubinage,[2] for allegedly openly cohabiting with Evelyn and siring a child with the latter. Complainant claimed that respondent abandoned his financial obligation to his legal family, resulting in severe financial difficulties as well as mental and emotional anguish.[3]

In his Comment,[4] respondent countered that while he and complainant indeed got married on May 6, 1990, he categorically denied that he was still legally married to the complainant.[5]  Respondent explained that it was only when he took up law several years after they contracted marriage that he realized his union with complainant was void ab initio for lack of a valid marriage license, as complainant allegedly forged his signature and obtained a marriage license even without his personal appearance.[6]  Respondent said that despite such realization, he did not have their marriage declared void ab initio as their children would only suffer further. Respondent added that complainant never supported him either financially or emotionally as a dutiful wife should. He denied the accusation that he failed to give support to his children, and that he abandoned his family.[7]  He, likewise, denied complainant’s allegations of concubinage, claiming that these were brought about by complainant’s misplaced and unfounded jealousy.  He claimed that Grace was a mere acquaintance and prospective client; that Judelyn was just a friend; and that Evelyn was just a close family friend.

The matter was referred to the Integrated Bar of the Philippines (IBP) for investigation, report, and recommendation.[8] In his Report and Recommendation[9] dated November 15, 2011, Commissioner Oliver A. Cachapero of the IBP-Commission on Bar Discipline found merit in the complaint and recommended that respondent be suspended from the practice of law for a period of one (1) year.

The IBP Commissioner found that there was enough evidence to hold respondent administratively liable for maintaining illicit affairs despite him being married to complainant; that the email messages of respondent to Grace revealed a romantic relationship between the two; that the words used in their email messages i.e., “take care of yourself always,” “wish you were here,” “looking forward to that day we meet,” were suggestive and showed affection and loving concern towards each other; that the same do not point to an exchange of messages not just between a lawyer and a client but between lovers; that as regards Judelyn, the alleged confession about their affair was too compelling an evidence for complainant, given that respondent did not refute the same; that the Affidavits[10] of complainant’s witnesses Jeffrey Villegas and Val C. Grapa revealed the romantic conduct of respondent and Judelyn that could only have been demonstrated by lovers; and that as regards Evelyn, respondent’s relationship was even more open as their displays of affection in public were done without any inhibition; and that the Affidavits[11] of complainant’s witnesses, Joselito Sido and Jovito Cipres were, likewise, revealing  as respondent  and Evelyn  were described  as a couple who unabashedly displayed their affection for each other in public.

In gist, Respondent and his partners showed intimacy when said Respondent possesses a legal impediment to marry and/or openly covet a lover. Thus for his conduct, it is shown that Respondent is wanting in moral character in honesty, probity and good demeanor. To be sure, he conducted himself in an immoral manner.

His claim that his marriage to Complainant is void ab initio can never justify the immoral conduct he had shown because no judicial declaration has been made in that regard.[12]

On September 28,2013, the IBP Board of Governors issued Resolution No. XX-2013-72[13] adopting and approving, with modification, the Report and Recommendation of the IBP Commissioner, and suspending respondent from the practice of law for three (3) years instead of one (1) year.

On April 18, 2016, the Court resolved to require the complainant to report to the Court within ten (10) days from notice the veracity of the “death” of the respondent, it appearing that the copy of the Court’s Resolution dated August 13, 2014 which, among others, noted the Notice of Resolution No. XX-2013-72 dated September 28, 2013 of the IBP Board of Governors suspending respondent from the practice of law was returned unserved, with postal carrier’s notation “RTS-addressee deceased” on the envelope.[14]

On December 5, 2018, the Court resolved to deem the April 18, 2016 Resolution served on complainant, it appearing that the copy of the same sent to her was, likewise, returned unserved with postal carrier’s notation “RTS­ unclaimed” on the envelope.[15]

On January 30, 2019, the Court resolved to direct the IBP and the Office of the Bar Confidant to verify within ten (10) days from notice the veracity of respondent’s death.[16]

On May 14, 2019, the IBP National Secretary submitted to the Court its compliance with the Court’s January 30, 2019 Resolution, informing the Court that as of that date, the IBP National Office had not officially received any information about the death of respondent Atty. Manolo M. Zerna and was, thus, unable to confirm the same.[17] In view of the foregoing, the Office of the Bar Confidant recommended that the case be resolved by the Court.[18]

After a thorough review of the records, the Court agrees with the finding of the IBP Commission on Bar Discipline and IBP Board of Governors that the complainant has presented enough evidence to substantiate her claim that respondent Atty. Manolo M. Zerna is guilty of gross immorality and may, therefore, be removed or suspended by the Supreme Court for conduct unbecoming a member of the Bar.[19]

The Code of Professional Responsibility mandates all lawyers to possess good moral character at the time of their application for admission to the Bar, and requires them to maintain such character until their retirement from the practice of law.[20] In this regard, the Code states:

Rule 1.01— A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

x x x x

CANON 7 — A lawyer shall at all times uphold the integrity and dignity of the legal profession, and support the activities of the Integrated Bar.

x x x x

Rule 7.03 — 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.

Time and again, this Court has emphasized that as officers of the court, lawyers must not only, in fact, be of good moral character but must also be seen to be of good moral character in leading lives in accordance with the highest moral standards of the community.[21] More specifically, a member of the Bar and officer of the Court is required not only to refrain from adulterous relationships or keeping mistresses but also to conduct himself as to avoid scandalizing the public by creating the belief that he is flouting those moral standards.[22]

In the present case, complainant alleged that respondent carried on a number  of  adulterous and illicit  relations throughout their  marriage, eventually abandoning her and their children to openly cohabit with one paramour. Through pieces of documentary evidence in the form of email messages and photos, among others, as well as the corroborating affidavits of her witnesses, complainant was able to establish respondent’s illicit relations with other women, particularly Evelyn, through substantial evidence which is necessary to justify the imposition of administrative penalties on a member of the Bar.

On the other hand, respondent’s main defense against complainant’s asseverations was that his marriage with complainant was void ab initio, a defense that is untenable as respondent, a lawyer, should know that Article 40 of The Family Code, which was already in effect at the time of respondent’s marriage to complainant, states that the absolute nullity of a previous marriage may not be invoked for purposes of remarriage unless there is a final judgment declaring  such  previous  marriage void.  Thus,  under the law, even if respondent’s defense that his marriage to complainant was void ab initio because there was no valid marriage license were true, their marriage is still deemed valid unless declared otherwise in a judicial proceeding.

As against complainant’s overwhelming and detailed allegations of his marital indiscretions, respondent only offered self-serving denials. Basic is the principle that denials are weak especially if unsupported by evidence.[23]

Thus, it bears emphasis that aside from respondent’s claim that complainant was not the hapless and pitiful wife she claimed to be[24] and that complainant’s allegations of his infidelities were purely brought about by misplaced and unfounded jealousy, respondent did not present countervailing evidence to substantiate his bare allegations.

While this Court is cognizant that cases such as this usually include self-serving arguments, this Court finds that between the two parties, it was complainant who was able to build her case against respondent. Thus, this Court will not deviate from the findings of the IBP Commission on Bar Discipline that there was enough evidence to support the claims of gross immorality against the respondent.

There can be no doubt that it is morally reprehensible for a married person to maintain intimate relations with another person of the opposite sex other than his or her spouse. All the more reprehensible is respondent’s act of leaving his wife and three children to maintain an illicit relationship with another woman with little to no attempt on his part to be discreet about his liaison. Such acts of engaging in illicit relationships with other women during the subsistence of his marriage to the complainant constitutes grossly immoral  conduct warranting the imposition appropriate sanctions. 

With regard to the penalty to be imposed, this Court finds the recommended penalty of suspension from the practice of law for three (3) years too light given the infraction committed by respondent. In numerous occasions, this Court has revoked the licenses of members of the Bar who were proven to have not only failed to retain good moral character in their professional  and personal lives, but have also made a mockery of the institution of marriage by maintaining illicit affairs.

In Toledo v. Toledo[25] the Court disbarred respondent Jesus B. Toledo for having abandoned his lawful wife and cohabited with another woman who had borne him a child.

In Narag v. Narag,[26] respondent Dominador M. Narag was disbarred after he abandoned his family to live with a 22-year-old who was his former student and with whom he begot two (2) children.

In Dantes v. Dantes,[27] the Court imposed the penalty of disbarment on the respondent lawyer Crispin G. Dantes who maintained illicit relationships with two different women during the subsistence of his marriage to the complainant.

The Court need not delve into the question of whether respondent was guilty of concubinage, a matter which is within the jurisdiction of the Regional Trial Court.   It is enough that the records of this administrative  case established through substantial evidence the findings that indeed respondent, while married to complainant, had been carrying on an illicit affair and living with another woman, a grossly immoral conduct and only indicative of an extremely low regard for the fundamental ethics of his profession.

WHEREFORE, respondent Manolo M. Zerna is found GUlLTY of GROSS IMMORALITY and is hereby DISBARRED from the practice of law.

Let respondent’s name be stricken off from the Roll of Attorneys immediately,  and furnish the Bar Confidant, the Integrated Bar of the Philippines and all courts throughout the country with copies of this Decision.

SO ORDERED.


Peralta, C.J, Perlas-Bernabe, Caguioa, Gesmundo, Reyes, J., Jr., Hernando, Carandang, Lazaro-Javier, Inting, Zalameda, Lopez, Delos-Santos, and Gaerlan, JJ., concur.
Leonen, J., see separate opinion.

Baltazar-Padilla, J., on leave.

NOTICE OF JUDGMENT


Sirs/Mesdames:

Please take notice that on September 8, 2020, a Decision, copy attached herewith, was rendered by the Supreme Court in the above-entitled case, the original of which was received by this Office on October 7, 2020 at 11:25 a.m.

Very truly yours,

(Sgd.) EDGAR O. ARICHETA
Clerk of Court

FOOTNOTES

[1] Rollo, pp. 3-142.

[2] Id. at 128-140.

[3] Id. at 17.

[4] Id. at 150-164.

[5] Id. at 150.

[6] Id. at 151.

[7] Id. at 158.

 [8] Id. at 176.

[9] Id. at 338-341.

[10] Id. at 45, 46.

[11] Id. at 90, 92.

[12] Id. at 340-341.

[13] Id. at 337.

[14] Id. at 346.

[15] Id. at 354.

[16] Id. at 355.

[17] Id. at 357.

[18] Id. at 358.

[19] Rules of Court, Rule 138, Sec. 27.

[20] Daisy D. Panagsagan v. Atty. Bernie Y. Panagsagan, A.C. No. 7733, October 1, 2019.

[21] Barrientos v. Daarol, 291-A Phil. 33, 44 (1993); Arnobit v. Atty. Arnobit, 590 Phil. 270, 276 (2008).

[22] Advincula v. Atty. Advincula, 787 Phil. 101, 112 (2016).

[23] Amalia R. Ceniza v. Atty. Eliseo B. Ceniza, Jr., A.C. No. 8335, April 10, 2019.

[24] Rollo, p. 158.

[25] 117 Phil. 768 (1963).

[26] 353 Phil. 643 (1998).

[27] 482 Phil. 64 (2004).

DISSENTING OPINION




LEONEN, J.:

I respectfully disagree with the finding that respondent Atty. Manolo Zerna (Atty. Zerna) should be disbarred. Considering the evidence available, the penalty of suspension should suffice.

This case involves a complaint for disbarment filed by respondent’s wife. She charges her husband with gross immorality for having illicit affairs with other women.

I reiterate my position that this Court should be cautious in administrative cases involving gross immorality. For these types of cases, only cases filed by aggrieved parties should be entertained so as not to run the risk of unduly intruding into intimate relationships of couples, which are beyond this Court’s powers.[1]

Moreover, a clear, objective, and secular standard should be applied in cases of gross immorality, so that this Court can avoid imposing arbitrary standards of morality as benchmarks for the legal profession.

An act, to constitute gross immorality and be a ground for disbarment, must be of such extent as to constitute a criminal offense, or it must be so corrupt as to be reprehensible to a high degree.[2] The gravity of the act should be one that diminishes the public’s confidence in the rule of law,[3] in line with the long-standing concept that an administrative case against a lawyer is primarily a case that involves the protection of the public good.[4] It is not a private suit that settles or vindicates private rights. Hence, the conduct complained of “must be so gross as to be ‘willful, flagrant, or shameless,’ so much so that it ‘shows a moral indifference to the opinion of the good and respectable members of the community.”[5]

The ponencia rules that respondent maintained adulterous and illicit affairs with several women during his marriage with the complainant, upholding the Integrated Bar of the Philippines Commissioner’s findings:

The IBP Commissioner found that there was enough evidence to hold respondent administratively liable for maintaining illicit affairs despite him being married to complainant; that the email messages of respondent to Grace revealed a romantic relationship between the two; that the words used in their email messages i.e., “take care of yourself always,” “wish you were here,” “looking forward to that day we meet,” were suggestive and showed affection and loving concern towards each other; that the same do not point to an exchange of messages not just between a lawyer and a client but between lovers; that as regards Judelyn, the alleged confession about that affair was too compelling an evidence for complainant, given that respondent did not refute the same; that the Affidavits of complainant’s witnesses Jeffrey Villegas and Val C. Grapa revealed the romantic conduct of respondent and Judelyn that could only have been demonstrated by lovers; and that as regards Evelyn, respondent’s relationship as even more open as their displays of affection in public were done without any inhibition; and that the Affidavits of complainant’s witnesses, Joselito Sido and Jovito Cipres were, likewise, revealing as respondent and Evelyn were described as a couple who unabashedly displayed their affection for each other in public.[6]

These findings place heavy weight on the supposed meaning of the private messages exchanged between respondent and one of the women, Grace.  The ponencia concludes that the words “take care of yourself always,” “wish you were here,” and “looking forward to that day we meet,” signify an illicit relationship between the two, characterizing these messages as affectionate words that could only be said in the context of a romantic relationship.

I disagree. These words on their own, although affectionate, are not sufficient to conclude that there was an illicit relationship between the two. The messages that respondent sent were equivocal and subject to different interpretations. Telling another person to take care of themselves or that they are looking forward to their company does not always mean there is an ongoing romantic relationship between the two. While these words may be considered playful especially considering that respondent is a married man, I do not agree that they are enough to judge a person as grossly immoral.

Other pieces of evidence considered involve sworn statements by complainant’s witnesses who characterize respondent’s conduct towards other women as “romantic,” and “could only have been demonstrated by lovers.” In my view, this Court cannot simply rely on the observations made by third persons as to the true status of respondent’s relationships with other women. Respondents’ words and actions should be evaluated on their own as against an objective criterion to determine whether they may be considered grossly immoral.[7] Otherwise, we run the risk of allowing an arbitrary standard based on third persons’ impressions to govern private relations between two individuals.

 

I have previously stated that “an objective criterion of immorality is that which is tantamount to an illegal act.”[8] I do not agree that the facts relied on by the ponencia are sufficient to meet this standard. The ponencia rules that respondent is grossly immoral because:

[I]t is morally reprehensible for a married  person to maintain intimate relations with another person of the opposite sex other than his or her spouse.  All the more reprehensible is respondent’s act of leaving his wife and three children to maintain an illicit relationship with another woman with little to no attempt on his part to be discreet about his liaison.[9]

However disagreeable his conduct may be, respondents’  actions do not constitute  an illegal act for which he can be adjudged as grossly immoral.  The ponencia refused to delve into the question of whether respondent is guilty of concubinage,[10] saying that this should be heard in a criminal case before the Regional Trial Court.[11]  However, the question in an administrative case for gross immorality is not respondent’s guilt for committing a crime for which he must suffer a criminal penalty, but whether his acts are tantamount to this crime so as to strip him of his license to practice law. I find that they are not.

Nevertheless, I still find him administratively liable for violation of the Code of Professional Responsibility. In Canon 7, Rule 7.03:

Canon 7 – A lawyer shall at all times uphold the integrity and dignity of the legal profession m1d support the activities of the Integrated Bar.


Rule 7.03 – A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.

Lawyers are bound at all times to conduct themselves in a manner consistent with the integrity and dignity of the profession. They should be cautious not only in the practice of law but also in their personal dealings,[12] as they may be disciplined for “gross misconduct not connected with [their] professional duties, which [show them] to be unfit for the office and unworthy of the privileges which [their] license and the law confer to [them].”[13] Both public and private lives of lawyers must measure up to this standard.

Thus, I find that respondent’s conduct, while not grossly immoral, is highly improper and is inconsistent with the truth and honor owing to the office of being an attorney.

ACCORDINGLY, I vote to SUSPEND Atty. Manolo M. Zerna from the practice of law for three (3) years.

FOOTNOTES

[1] J. Leonen, Separate Opinion in Anonymous Complaint v. Dagala, 814 Phil. 103, 136-156 (2017) [Per Curiam, En Banc].

[2] Reyes v. Wong, 159 Phil. 171, 177 (1975) [Per J. Makasiar, First Division].

[3] Perfecto v. Esidera, 764 Phil. 384, 399 (2015) [Per J. Leonen, Second Division].

[4] See Kimteng v. Young, 765 Phil. 944 (2015) [Per J. Leonen, Second Division].

[5] Arciga v. Maniwang, 193 Phil. 730, 735 (1981) [Per J. Aquino, Second Division].

[6] Ponencia, p. 3–4.

[7] See J. Leonen, Dissenting Opinion in Sabillo v. Atty. Lorenzo, A.C. No. 9392, December 4, 2018, 9 [Per Curiam, En Banc] citing J. Leonen, Separate Opinion in Anonymous Complaint v. Dagala, 814 Phil. 103 (2017) [Per Curiam, En Banc].

[8] Id.

[9] Ponencia, p. 6.

[10] REV. PEN. CODE, art. 334.

ARTICLE 334. Concubinage. — Any husband who shall keep a mistress in the conjugal dwelling, or, shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium periods.

The concubine shall suffer the penalty of destierro.

[11] Ponencia, p. 7.

[12] Agno v. Cagatan, 580 Phil. 1,17 (2008) [Per J. Leonardo-De Castro, En Banc].

[13] Enriquez v. De Vera, 756 Phil. 1, 13 (2015) [Per J. Leonen, Second Division].