EN BANC

[A.C. No. 6707. March 24, 2006.]

GISELA HUYSSEN , complainant, vs . ATTY. FRED L. GUTIERREZ ,

respondent.

DECISION

PER CURIAM : p

This treats of a Complaint 1 for Disbarment led by Gisela Huyssen against

respondent Atty. Fred L. Gutierrez.
Complainant alleged that in 1995, while respondent was still connected with the
Bureau of Immigration and Deportation (BID), she and her three sons, who are all
American citizens, applied for Philippine Visas under Section 13[g] of the Immigration
Law. Respondent told complainant that in order that their visa applications will be
favorably acted upon by the BID they needed to deposit a certain sum of money for a
period of one year which could be withdrawn after one year. Believing that the deposit
was indeed required by law, complainant deposited with respondent on six different
occasions from April 1995 to April 1996 the total amount of US$20,000. Respondent
prepared receipts/vouchers as proofs that he received the amounts deposited by the
complainant but refused to give her copies of o cial receipts despite her demands.
After one year, complainant demanded from respondent the return of US$20,000 who
assured her that said amount would be returned. When respondent failed to return the
sum deposited, the World Mission for Jesus (of which complainant was a member)
sent a demand letter to respondent for the immediate return of the money. In a letter
dated 1 March 1999, respondent promised to release the amount not later than 9
March 1999. Failing to comply with his promise, the World Mission for Jesus sent
another demand letter. In response thereto, respondent sent complainant a letter dated
19 March 1999 explaining the alleged reasons for the delay in the release of deposited
amount. He enclosed two blank checks postdated to 6 April and 20 April 1999 and
authorized complainant to ll in the amounts. When complainant deposited the
postdated checks on their due dates, the same were dishonored because respondent
had stopped payment on the same. Thereafter, respondent, in his letter to complainant
dated 25 April 1999, explained the reasons for stopping payment on the checks, and
gave complainant ve postdated checks with the assurance that said checks would be
honored. Complainant deposited the ve postdated checks on their due dates but they
were all dishonored for having been drawn against insu cient funds or payment
thereon was ordered stopped by respondent. After respondent made several unful lled
promises to return the deposited amount, complainant referred the matter to a lawyer
who sent two demand letters to respondent. The demand letters remained unheeded.
Thus, a complaint 2 for disbarment was led by complainant in the Commission
on Bar Discipline of the Integrated Bar of the Philippines (IBP).
On 15 November 2000, Victor C. Fernandez, Director for Bar Discipline, required 3
respondent to submit his answer within 15 days from receipt thereof.

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 In his Counter-A davit dated 2 July 2001, 4 respondent denied the allegations in
the complaint claiming that having never physically received the money mentioned in
the complaint, he could not have appropriated or pocketed the same. He said the
amount was used as payment for services rendered for obtaining the permanent visas
in the Philippines. Respondent explained thus:
a) Through a close-friend, Jovie Galaraga, a Pastor and likewise a
friend of the complainant, the latter was introduced to me at my o ce at the
Bureau of Immigration with a big problem concerning their stay in the Philippines,
herself and three sons, one of which is already of major age while the two others
were still minors then. Their problem was the fact that since they have been
staying in the Philippines for almost ten (10) years as holders of missionary visas
(9G) they could no longer extend their said status as under the law and related
polic[i]es of the government, missionary visa holders could only remain as such
for ten (10) years after which they could no longer extend their said status and
have to leave the country.
b) Studying their case and being U.S. Citizen (sic), I advised them that
they better secure a permanent visa under Section 3 of the Philippine Immigration
Law otherwise known as Quota Visa and thereafter, provided them with list of the
requirements in obtaining the said visa, one of which is that the applicant must
have a $40,000 deposited in the bank. I also inform that her son Marcus Huyssen,
who was already of major age, has to have the same amount of show money
separate of her money as he would be issued separate visa, while her two minor
children would be included as her dependents in her said visa application. I
advised them to get a lawyer (sic), complainant further requested me to refer to
her to a lawyer to work for their application, which I did and contacted the late
Atty. Mendoza, an Immigration lawyer, to do the job for the complainant and her
family.

c) The application was led, processed and followed-up by the said

Atty. Mendoza until the same was nished and the corresponding permanent visa
were obtained by the complainant and her family. Her son Marcus Huyssen was
given an independent permanent visa while the other two were made as
dependents of the complainant. In between the processing of the papers and
becoming very close to the complainant, I became the intermediary between
complainant and their counsel so much that every amount that the latter would
request for whatever purpose was coursed through me which request were then
transmitted to the complainant and every amount of money given by the
complainant to their counsel were coursed thru me which is the very reason why
my signature appears in the vouchers attached in the complaint-affidavit;

d) That as time goes by, I noticed that the amount appeared to be

huge for services of a lawyer that I myself began to wonder why and, to satisfy
my curiosity, I met Atty. Mendoza and inquired from him regarding the matter and
the following facts were revealed to me:

1) That what was used by the complainant as her show money from
the bank is not really her money but money of World Mission for Jesus,
which therefore is a serious violation of the Immigration Law as there was
a misrepresentation. This fact was con rmed later when the said entity
sent their demand letter to the undersigned a ant and which is attached
to the complaint-affidavit;
ECISAD

2) That worst, the same amount used by the complainant, was the
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 very same amount used by her son Marcus Huyssen, in obtaining his
separate permanent visa. These acts of the complainant and her son could
have been a ground for deportation and likewise constitute criminal
offense under the Immigration Law and the Revised Penal Code. These
could have been the possible reason why complainant was made to pay
for quite huge amount.

e) That after they have secured their visas, complainant and her family
became very close to undersigned and my family that I was even invited to their
residence several times;

f) However after three years, complainant demanded the return of their

money given and surprisingly they want to recover the same from me. By twist of
fate, Atty. Mendoza is no longer around, he died sometime 1997;

g) That it is unfortunate that the real facts of the matter is now being
hidden and that the amount of money is now being sought to be recovered from
me;

h) That the fact is I signed the vouchers and being a lawyer I know the
consequences of having signed the same and therefore I had to answer for it and
pay. I tried to raised the fund needed but up to the present my standby loan
application has not been released and was informed that the same would only be
forthcoming second week of August. The same should have been released last
March but was aborted due to prevalent condition. The amount to be paid,
according to the complainant has now become doubled plus attorney's fees of
P200,000.00.

Complainant submitted her evidence on 4 September 2002 and April 2003, and
filed her Formal Offer of Evidence on 25 August 2003.
On several occasions, the complaint was set for reception of respondent's
evidence but the scheduled hearings (11 settings) were all reset at the instance of the
respondent who was allegedly out of the country to attend to his client's needs.
Reception of respondent's evidence was scheduled for the last time on 28 September
2004 and again respondent failed to appear, despite due notice and without just cause.
On 5 November 2004, Investigating Commissioner Milagros V. San Juan
submitted her report 5 recommending the disbarment of respondent. She justi ed her
recommendation in this manner:
At the outset it should be noted that there is no question that respondent
received the amount of US$20,000 from complainant, as respondent himself
admitted that he signed the vouchers (Annexes A to F of complainant) showing
his receipt of said amount from complainant. Respondent however claims that he
did not appropriate the same for himself but that he delivered the said amount to
a certain Atty. Mendoza. This defense raised by respondent is untenable
considering the documentary evidence submitted by complainant. On record is
the 1 March 1999 letter of respondent addressed to the World Mission for Jesus
(Annex H of Complaint) where he stated thus:

"I really understand your feelings on the delay of the release of the
deposit but I repeat, nobody really intended that the thing would happen
that way. Many events were the causes of the said delay particularly the
death of then Commissioner L. Verceles, whose sudden death prevented us
the needed papers for the immediate release. It was only from compiling
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 all on the rst week of January this year, that all the said papers were
recovered, hence, the process of the release just started though some
important papers were already nished as early as the last quarter of last
year. We are just going through the normal standard operating procedure
and there is no day since January that I do not make any follow-ups on the
progress of the same."

and his letter dated 19 March 1999 (Annex L of Complaint) where he

stated thus:
"I am sending you my personal checks to cover the refund of the
amount deposited by your good self in connection with the procurement of
your permanent visa and that of your family. It might take some more time
before the Bureau could release the refund as some other pertinent papers
are being still compiled are being looked at the les of the late
Commissioner Verceles, who approved your visa and who died of heart
attack. Anyway, I am sure that everything would be ne later as all the
documents needed are already intact. This is just a bureaucratic delay."
From the above letters, respondent makes it appear that the US$20,000
was o cially deposited with the Bureau of Immigration and Deportation.
However, if this is true, how come only Petty Cash Vouchers were issued by
respondent to complainant to prove his receipt of the said sum and o cial
receipts therefore were never issued by the said Bureau? Also, why would
respondent issue his personal checks to cover the return of the money to
complainant if said amount was really o cially deposited with the Bureau of
Immigration? All these actions of respondent point to the inescapable conclusion
that respondent received the money from complainant and appropriated the same
for his personal use. It should also be noted that respondent has failed to
establish that the "late Atty. Mendoza" referred to in his Counter-A davit really
exists. There is not one correspondence from Atty. Mendoza regarding the visa
application of complainant and his family, and complainant has also testi ed
that she never met this Atty. Mendoza referred to by respondent.
Considering that respondent was able to perpetrate the fraud by taking
advantage of his position with the Board of Special Inquiry of the Bureau of
Immigration and Deportation, makes it more reprehensible as it has caused
damage to the reputation and integrity of said o ce. It is submitted that
respondent has violated Rule 6.02 of Canon 6 of the Code of Professional
Responsibility which reads:

"A lawyer in the government service shall not use his public position
to promote or advance his private interests, nor allow the latter to interfere
with his public duties."

On 4 November 2004, the IBP Board of Governors approved 6 the Investigating

Commissioner's report with modification, thus:
RESOLVED to ADOPT and APPROVE, as it hereby ADOPTED and
APPROVED, with modification , the Report and Recommendation of the
Investigating Commissioner of the above-entitled case, herein made part of this
Resolution as Annex "A"; and, nding the recommendation fully supported by the
evidence on record and applicable laws and rules, and considering respondent's
violation of Rule 6.02 of Canon 6 of the Code of Professional Responsibility, Atty.
Fred L. Gutierrez is hereby DISBARRED from the practice of law and ordered to
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 return the amount with legal interest from receipt of the money until payment.
This case shall be referred to the O ce of the Ombudsman for prosecution for
violation of Anti-Graft and Corrupt Practices Acts and to the Department of
Justice for appropriate administrative action.

We agree with the IBP Board of Governors that respondent should be severely
sanctioned.
We begin with the veritable fact that lawyers in government service in the
discharge of their o cial task have more restrictions than lawyers in private practice.
Want of moral integrity is to be more severely condemned in a lawyer who holds a
responsible public office. 7
It is undisputed that respondent admitted 8 having received the US$20,000 from
complainant as shown by his signatures in the petty cash vouchers 9 and receipts 1 0 he
prepared, on the false representation that that it was needed in complainant's
application for visa with the BID. Respondent denied he misappropriated the said
amount and interposed the defense that he delivered it to a certain Atty. Mendoza who
assisted complainant and children in their application for visa in the BID. 1 1 Such
defense remains unsubstantiated as he failed to submit evidence on the matter. While
he claims that Atty. Mendoza already died, he did not present the death certi cate of
said Atty. Mendoza. Worse, the action of respondent in shifting the blame to someone
who has been naturally silenced by fate, is not only impudent but downright
ignominious. When the integrity of a member of the bar is challenged, it is not enough
that he deny the charges against him; he must meet the issue and overcome the
evidence against him. 1 2 He must show proof that he still maintains that degree of
morality and integrity which at all times is expected of him. In the case at bar,
respondent clearly fell short of his duty. Records show that even though he was given
the opportunity to answer the charges and controvert the evidence against him in a
formal investigation, he failed, without any plausible reason, to appear several times
whenever the case was set for reception of his evidence despite due notice.
The defense of denial proferred by respondent is, thus, not convincing. It is
settled that denial is inherently a weak defense. To be believed, it must be buttressed
by a strong evidence of non-culpability; otherwise, such denial is purely self-serving and
is with nil evidentiary value.
When respondent issued the postdated checks as his moral obligation, he
indirectly admitted the charge. Such admissions were also apparent in the following
letters of respondent to complainant:
1) Letter 1 3 dated 01 March 1992, pertinent portion of which reads:
Be that as it may, may I assure you for the last time that the said deposit is
forthcoming, the latest of which is 09 March 1999. Should it not be released on
said date, I understand to pay the same to you out of my personal money on said
date. No more reasons and no more alibis. Send somebody here at the o ce on
that day and the amount would be given to you wether (sic) from the Bureau or
from my own personal money. cDECIA

2) Letter 1 4 dated 19 March 1999, reads in part:

I am sending you my personal checks to cover the refund of the amount
deposited by your goodself in connection with the procurement of your
permanent visa and that of your family.

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 It might take some more time before the Bureau could release the refund
as some other pertinent papers are still being compiled and are being looked at
the les of the late Commissioner Verceles, who approved your visa and who died
of heart attack. Anyway, I am sure that everything would be ne later as all the
documents needed are already intact. This is just a bureaucratic delay.
xxx xxx xxx

As you would see, I have to pay you in peso. I have issued you 2 checks,
one dated April 6, 1999 and the other one dated April 20, 1999. I leave the amount
vacant because I would want you to ll them up on their due dates the peso
equivalent to $10,000 respectively. This is to be sure that the peso equivalent of
your P20,000 would be well exchanged. I have postdated them to enable me to
raise some more pesos to cover the whole amount but don't worry as the Lord
had already provided me the means.

3) Letter 1 5 dated 25 April 1999 provides:

Anyway, let me apologize for all these troubles. You are aware that I have
done my very best for the early return of your money but the return is becoming
bleak as I was informed that there are still papers lacking. When I stopped the
payment of the checks I issued, I was of the impression that everything is ne, but
it is not. I guess it is time for me to accept the fact that I really have to personally
return the money out of my own. The issue should stop at my end. This is the
truth that I must face. It may hurt me nancially but it would set me free from
worries and anxieties.
I have arranged for a loan from money lenders and was able to secure one
last Saturday the releases of which are on the following:
May 4, 1999 — 200,000
May 11, 1999 — 200,000
May 20, 1999 — 200,000

June 4, 1999 — 200,000

I have given my property (lot situated in the province) as my collateral.
I am therefore putting an end to this trouble. I am issuing four checks
which I assure you will be su ciently funded on their due dates by reason of my
aforestated loans. Just bear with me for the last time, if any of these checks, is
returned, don't call me anymore. Just le the necessary action against me, I just
had to put an end to this matter and look forward. . . .

4) Letter 1 6 dated 12 May 1999, which reads:

The other day I deposited the amount of P289,000 to the bank to cover the
rst check I issued. In fact I stopped all payments to all other checks that are
becoming due to some of my creditors to give preference to the check I issued to
you.

This morning when I went to the Bank, I learned that the bank instead of
returning the other checks I requested for stop payment — instead honored them
and mistakenly returned your check. This was a very big surprise to me and
discouragement for I know it would really upset you.

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 In view of this I thought of sending you the amount of P200,000 in cash
which I initially plan to withdraw from the Bank. However, I could not entrust the
same amount to the bearer nor can I bring the same to your place considering
that its quite a big amount. I am just sending a check for you to immediately
deposit today and I was assured by the bank that it would be honored this time.

Normally, this is not the actuation of one who is falsely accused of appropriating
the money of another. As correctly observed by the Investigating Commissioner,
respondent would not have issued his personal checks if said amount were o cially
deposited with the BID. This is an admission of misconduct.
Respondent's act of asking money from complainant in consideration of the
latter's pending application for visas is violative of Rule 1.01 1 7 of the Code of
Professional Responsibility, which prohibits members of the Bar from engaging or
participating in any unlawful, dishonest, or deceitful acts. Moreover, said acts constitute
a breach of Rule 6.02 1 8 of the Code which bars lawyers in government service from
promoting their private interest. Promotion of private interest includes soliciting gifts
or anything of monetary value in any transaction requiring the approval of his o ce or
which may be affected by the functions of his o ce. 1 9 Respondent's conduct in o ce
betrays the integrity and good moral character required from all lawyers, especially
from one occupying a high public office. A lawyer in public office is expected not only to
refrain from any act or omission which might tend to lessen the trust and con dence of
the citizenry in government; he must also uphold the dignity of the legal profession at
all times and observe a high standard of honesty and fair dealing. Otherwise said, a
lawyer in government service is a keeper of the public faith and is burdened with high
degree of social responsibility, perhaps higher than his brethren in private practice.
In a desperate attempt to put up a smoke or to camou age his misdeed, he went
on committing another by issuing several worthless checks, thereby compounding his
case.
In a recent case, we have held that the issuance of worthless checks constitutes
gross misconduct, 2 0 as the effect "transcends the private interests of the parties
directly involved in the transaction and touches the interests of the community at large.
The mischief it creates is not only a wrong to the payee or holder, but also an injury to
the public since the circulation of valueless commercial papers can very well pollute the
channels of trade and commerce, injure the banking system and eventually hurt the
welfare of society and the public interest. Thus, paraphrasing Black's de nition, a
drawer who issues an unfunded check deliberately reneges on his private duties he
owes his fellow men or society in a manner contrary to accepted and customary rule of
right and duty, justice, honesty or good morals." 2 1
Consequently, we have held that the act of a person in issuing a check knowing at
the time of the issuance that he or she does not have su cient funds in, or credit with,
the drawee bank for the payment of the check in full upon its presentment, is also a
manifestation of moral turpitude. 2 2
Respondent's acts are more despicable. Not only did he misappropriate the
money of complainant; worse, he had the gall to prepare receipts with the letterhead of
the BID and issued checks to cover up his misdeeds. Clearly, he does not deserve to
continue, being a member of the bar.
Time and again, we have declared that the practice of law is a noble profession. It
is a special privilege bestowed only upon those who are competent intellectually,
academically and morally. A lawyer must at all times conduct himself, especially in his
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 dealings with his clients and the public at large, with honesty and integrity in a manner
beyond reproach. He must faithfully perform his duties to society, to the bar, to the
courts and to his clients. A violation of the high standards of the legal profession
subjects the lawyer to administrative sanctions which includes suspension and
disbarment. 2 3 More importantly, possession of good moral character must be
continuous as a requirement to the enjoyment of the privilege of law practice;
otherwise, the loss thereof is a ground for the revocation of such privilege. 2 4
Indeed, the primary objective of administrative cases against lawyers is not only
to punish and discipline the erring individual lawyers but also to safeguard the
administration of justice by protecting the courts and the public from the misconduct
of lawyers, and to remove from the legal profession persons whose utter disregard of
their lawyer's oath have proven them un t to continue discharging the trust reposed in
them as members of the bar. 2 5 These pronouncement gain practical signi cance in the
case at bar considering that respondent was a former member of the Board of Special
Inquiry of the BID. It bears stressing also that government lawyers who are public
servants owe delity to the public service, a public trust. As such, government lawyers
should be more sensitive to their professional obligations as their disreputable conduct
is more likely to be magnified in the public eye. 2 6
As a lawyer, who was also a public o cer, respondent miserably failed to cope
with the strict demands and high standards of the legal profession.
Section 27, Rule 138 of the Revised Rules of Court mandates that a lawyer may
be disbarred or suspended by this Court for any of the following acts: (1) deceit; (2)
malpractice; (3) gross misconduct in o ce; (4) grossly immoral conduct; (5)
conviction of a crime involving moral turpitude; (6) violation of the lawyer's oath; (7)
willful disobedience of any lawful order of a superior court; and (8) willfully appearing
as an attorney for a party without authority to do so. 2 7
I n Atty. Vitriolo v. Atty. Dasig , 2 8 we ordered the disbarment of a lawyer who,
during her tenure as OIC, Legal Services, Commission on Higher Education, demanded
sums of money as consideration for the approval of applications and requests awaiting
action by her o ce. In Lim v. Barcelona , 2 9 we also disbarred a senior lawyer of the
National Labor Relations Commission, who was caught by the National Bureau of
Investigation in the act of receiving and counting money extorted from a certain person.
Respondent's acts constitute gross misconduct; and consistent with the need to
maintain the high standards of the Bar and thus preserve the faith of the public in the
legal profession, respondent deserves the ultimate penalty of expulsion from the
esteemed brotherhood of lawyers. 3 0
WHEREFORE, Atty. Fred L. Gutierrez is hereby DISBARRED from the practice of
law and ordered to return the amount he received from the complainant with legal
interest from his receipt of the money until payment. This case shall be referred to the
O ce of the Ombudsman for criminal prosecution for violation of Anti-Graft and
Corrupt Practices Acts and to the Department of Justice for appropriate administrative
action. Let copies of this Decision be furnished the Bar Con dant to be spread on the
records of the respondent; the Integrated Bar of the Philippines for distribution to all its
chapters; and the O ce of the Court Administrator for dissemination to all courts
throughout the country.
SO ORDERED.
Panganiban, C.J., Puno, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-
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 Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario and Garcia,
JJ., concur.
Quisumbing, J., is on official leave.

Footnotes
1. Rollo, pp. 1-5.
2. Id., pp. 1-5.
3. Id., p. 23.
4. Id., pp. 31-34.
5. Id., pp. 293-300.
6. Id., p. 292.
7. Macoco v. Diaz, 70 Phil. 97, 98 (1940).
8. Rollo, pp. 32-34, Respondent's counter-affidavit.
9. Id., pp. 6-8, Annexes "A", "B", "C", "D", and "E".
10. Id., pp. 9-10, Annexes "E" and "F".
11. Id., p. 33.
12. Heck v. Santos, A.M. No. RTJ-01-1657, 23 February 2004, 423 SCRA 329, 348; Reyes v.
Gaa, 316 Phil. 97, 101 (1995).
13. Rollo, p. 12.
14. Id., pp. 100-103.
15. Id., pp. 106-108.
16. Id., pp. 118-121.
17. Rule 1.01. — A lawyer shall not engage in unlawful, dishonest, immoral, and deceitful
conduct.
18. Rule 6.02. — A lawyer in the government service shall not use his public position to
promote or advance his private interest, nor allow the latter to interfere with his public
duties.
19. Atty. Vitriolo v. Atty. Dasig, 48 Phil. 199, 209 (2003).
20. Lao v. Medel, 453 Phil. 115, 121 (2003).
21. Villaber v. Commission on Elections, 420 Phil. 930, 939-940 (2001).
22. Moreno v. Araneta, A.C. No. 1109, 27 April 2005, 457 SCRA 329, 337.
23. Re: Administrative Case Against Atty. Occena, 433 Phil. 138, 156 (2002).
24. Ui v. Atty. Bonifacio, 388 Phil 691, 705 (2000).
25. Rivera v. Atty. Corral, 433 Phil. 331, 340 (2002).
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 26. Igoy v. Atty. Soriano, 419 Phil. 346, 359 (2001).
27. Hernandez v. Go, A.C. No. 1526, 31 January 2005, 450 SCRA 1, 10.
28. Supra note 19, pp. 207-208.
29. A.C. No. 5438, 10 March 2004, 425 SCRA 67, 75.

30. Hernandez v. Go, supra note 27, p. 11.

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