SECOND DIVISION

[A.M. No. MTJ-13-1837. September 24, 2014.]

[Formerly OCA IPI No. 12-2463-MTJ]

CONRADO ABE LOPEZ, represented by ATTY. ROMUALDO

JUBAY, complainant, vs. JUDGE ROGELIO S. LUCMAYON,
Municipal Trial Court in Cities, Branch 1, Mandaue City,
Cebu, respondent.

DECISION

BRION, J : p

We resolve the administrative complaint 1 filed by Conrado Abe Lopez

(complainant) charging Judge Rogelio S. Lucmayon (respondent), Municipal
Trial Court in Cities, Branch 1, Mandaue City, Cebu, with Dishonesty, Corruption
and Malpractice relative to a land dispute involving their families.

The Antecedent Facts

In a verified complaint-affidavit dated December 12, 2011, the
complainant, through his counsel Atty. Romualdo M. Jubay, alleged that when
he was eight years old, he inherited from his adoptive father Restituto Lopez
one-half (1/2) of Lot No. 1718 with an area of 355 square meters located in
Balamban, Cebu, evidenced by a document entitled "Katapusan Panugon"
(Testamente). He claimed that while the document mentioned Lot No. 1718, he
ended up receiving a portion of Lot No. 1696 with a total land area of 49,817
square meters, that became the object of an extrajudicial settlement involving
him, his adoptive mother Honorata Lopez, and the relatives of the respondent
in December 1978. Half of Lot No. 1696 was cultivated by his adoptive mother
until the latter's death in 1982. He took over the cultivation of the land after he
retired as a seafarer in 1988.
The complainant alleged that sometime in October 2004, he and the
respondent met in a waiting shed located in front of the house of the latter's
grandmother in Buanoy, Balamban, Cebu. At that meeting, the respondent
allegedly deceived him into signing a Special Power of Attorney (SPA) to
process the sale of Lot No. 1696 to the prospective buyer, Aboitiz Group of
Company. Unknown to the complainant, the said SPA contained at the bottom
portion, a so-called "Waiver of Rights" that the respondent had deceptively
inserted in order to strip him of his ownership of Lot No. 1696. After signing the
document (notarized by a certain Atty. Arturo C. Mata (Atty. Mata) without the
complainant's presence), the respondent allegedly told the complainant that he
no longer had any right over the property. In March 2005, the father of the
respondent, Pedro Lucmayon (Pedro), ordered him to cease cultivating the land
because of the Waiver of Rights in the SPA he signed.
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 The complainant also asserted that the respondent had caused Pedro and
his siblings to execute a document entitled "Supplemental Extrajudicial
Settlement of the Estate of Moises Legaspino and Victoria Lopez" to the
damage and prejudice of the complainant and his adoptive mother. He alleged
that in the extrajudicial settlement, his name and the name of his adoptive
mother were excluded. They claimed that as legal heirs of the late Restituto
Lopez (Restituto) who, in turn, had inherited the property from his late mother
Victoria Lopez (the co-owner of the property), their exclusion from the
extrajudicial settlement was an act of dishonesty to which the respondent
should be held administratively liable.
In his comment 2 dated March 8, 2012, the respondent vehemently
denied that he convinced the complainant to sell his shares in the property; he
claimed that it was the complainant who was interested in selling his shares
after he got tired of cultivating the land. He also denied that he deceived the
complainant into signing the Waiver of Rights. He contended that the filing of
the administrative case against him was intended to embarrass and harass
him.
The respondent further stated that the signing of the Waiver of Rights
was done after he discovered that the complainant was not legally adopted. He
added that since there had been no legal adoption, the complainant could not
be considered as a legal heir and was not entitled to any portion of the land. He
stated, too, that his participation in the sale transaction was limited to
informing his parents and relatives that the complainant is not a legal heir of
Resitituto. DCIAST

The Report and Recommendation of the OCA

In its evaluation report 3 dated October 23, 2012, the Office of the Court
Administrator (OCA) noted that the allegations in the administrative complaint
are basically the same allegations the complainant raised in the criminal
complaint for falsification of public documents he filed against the respondent,
which complaint the Office of the City Prosecutor of Cebu City dismissed. The
City Prosecutor found that the complainant's allegations lacked merit and
evidentiary proof. It also found that the complainant failed to discharge the
burden of proving the respondents' administrative liability and recommended
the dismissal of the administrative complaint for lack of merit. The
recommendation reads:
"RECOMMENDATION: It is therefore respectfully recommended
for the consideration of the Honorable Court that the administrative
complaint against Judge Rogelio S. Lucmayon, Branch 1, Municipal Trial
Court in Cities, Mandaue City, Cebu, be DISMISSED for lack of merit."

On December 5, 2012, the Court issued a Resolution 4 adopting and

approving the OCA's findings of fact, conclusions of law and recommendation,
and dismissed the complaint against the respondent.
The complainant sought reconsideration 5 contending that the OCA's
findings of fact were clearly erroneous. He pointed out the OCA failed to
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 appreciate and consider the other circumstances that clearly showed the
respondent's dishonesty, corruption and malpractice. He reiterated that the
respondent made him sign three (3) SPAs and deceived him into signing the
Waiver of Rights at the bottom portion of the third SPA, which SPA was
allegedly notarized by Atty. Mata without his presence. He also stated that the
respondent's allegation that he was not a legally adopted son of Restituto is
baseless; since as shown in Restituto's Testamente, he had been adopted and
considered as Restituto's true child.
The Court referred back the complainant's Motion for Reconsideration to
the OCA for evaluation, report and recommendation.

In its Memorandum 6 dated July 23, 2013, addressed to Associate Justice

Antonio T. Carpio, the OCA recommended that the administrative case be re-
docketed as a regular administrative matter and that the respondent be held
administratively liable for acts of impropriety. The OCA held that while the
respondent's act of asking the complainant to sign the SPAs may not constitute
dishonesty, corruption or misconduct, his other actions (specifically requiring
the complainant to sign the SPAs and allowing Atty. Mata to notarize the Waiver
of Rights without each other's presence) as well as his appointment as the
complainant's attorney-in-fact, violate Rule 5.06 of the Code of Judicial Conduct
7 and amount to impropriety. SATDEI

Asked to comment, the respondent insisted that the complainant still

failed to adduce substantial evidence establishing his administrative liability.
He pointed out that contrary to the complainant's contention, Atty. Mata never
admitted that he notarized the Waiver of Rights outside the complainant's
presence. He also alleged that the mere fact that the complainant appointed
him as attorney-in-fact does not ipso facto taint his actions with impropriety.

The Court's Ruling

Based on the allegations of the complaint, the respondent's comment,
and the findings of the OCA, we find that the respondent is liable for violation of
Rule 5.06 of the Code of Judicial Conduct ("Code") and Impropriety.
Respondent Violated Rule 5.06 of the Code
As a general rule, a judge is prohibited from serving as executor,
administrator, trustee, guardian or other fiduciary. The intent of the rule is to
limit a judge's involvement in the affairs and interests of private individuals to
minimize the risk of conflict with his judicial duties and to allow him to devote
his undivided attention to the performance of his official functions. When a
member of the bench serves as administrator of the properties of private
individuals, he runs the risk of losing his neutrality and impartiality, especially
when the interests of his principal conflicts with those of the litigant who comes
before his court. 8
The only exception to this rule as set forth in Rule 5.06 is when the estate
or trust belongs to, or the ward is a member of his immediate family, and
only if his service as executor, administrator, trustee, guardian or fiduciary will
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 not interfere with the proper performance of his judicial duties. The Code
defines "immediate family" as being limited to the spouse and relatives within
the second degree of consanguinity. 9

In this case, since complainant clearly does not fall under respondent's
"immediate family" as herein defined, the latter's appointment as the former's
attorney-in-fact is not a valid exception to the rule. Furthermore, by serving as
attorney-in-fact, the respondent not only allowed himself to be distracted from
the performance of his judicial duties; he also undertook to perform all acts
necessary to protect the complainant's interest. In effect, the respondent acted
as the complainant's fiduciary, in direct and patent violation of the prohibition
against judges.

As held in Ramos v. Barot: 10

Being and serving as an attorney-in-fact is within the

purview of "other fiduciary" as used in Rule 5.06. As a noun,
"fiduciary" means "a person holding the character of a trustee, or a
character analogous to that of a trustee, in respect to the trust and
confidence involved in it and the scrupulous good faith and candor
which it requires." A fiduciary primarily acts for another's benefit,
pursuant to his undertaking as such fiduciary, in matters connected
with said undertaking . . . . (Emphasis Supplied)

As a judge who is expected to observe the ethical rules that govern

judicial conduct both in public and private affairs, the respondent should have
been more circumspect in accepting the appointment as an attorney-in-fact of
the complainant. He should be reminded that the Code of Judicial Conduct —
which, among others, prohibits members of the bench from engaging in extra-
judicial activities that tends to create a conflict with their judicial duties — must
be strictly complied with. 11 We conclude that for violation of the rules, the
respondent should be sanctioned.
Respondent is Guilty of Impropriety
On the charge of impropriety, we have repeatedly reminded members of
the Judiciary to keep their conduct beyond reproach and suspicion, and to be
free from any appearance of impropriety in their personal behavior, both in the
discharge of their official duties and in their everyday lives. 12
Canon II of the Code of Judicial Conduct provides:
Rule 2.00: A judge should avoid impropriety and the appearance
of impropriety in all activities.

Rule 2.01: A judge should so behave at all times as to promote

public confidence in the integrity and impartiality of the judiciary.

By the very nature of their work, judges should observe an exacting

standard of morality and decency. For no position exacts a greater demand on
the moral righteousness and uprightness of an individual than a seat in the
Judiciary. 13 DCHaTc

In Vedana v. Valencia, 14 this Court pointedly stated that:

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 The Code of Judicial Ethics mandates that the conduct of
a judge must be free of a whiff of impropriety not only with
respect to his performance of his judicial duties, but also to his
behavior outside his sala as a private individual. There is no
dichotomy of morality: a public official is also judged by his private
morals. The Code dictates that a judge, in order to promote public
confidence in the integrity and impartiality of the judiciary, must
behave with propriety at all times. As we have recently explained, a
judge's official life can not simply be detached or separated from his
personal existence. Thus:
Being the subject of constant public scrutiny, a judge should
freely and willingly accept restrictions on conduct that might be viewed
as burdensome by the ordinary citizen.
A judge should personify judicial integrity and exemplify honest
public service. The personal behavior of a judge, both in the
performance of official duties and in private life should be above
suspicion. (Emphasis Supplied).

In the present administrative complaint, we agree with the OCA that the
respondent's acts of: (1) making the complainant sign at least two (2)
documents — consisting of SPA and Waiver of Rights — without the presence of
a counsel; and (2) allowing the notarization of the documents outside the
presence of the executor, amount to impropriety. While no evidence directly
shows that the respondent had deceived the complainant into signing these
documents, this Court cannot ignore the fact that the documents the
respondent himself prepared greatly prejudiced the complainant. We also note
that the Waiver of Rights benefitted the respondent and his family. As a judge
who is more learned in the law than the complainant, the respondent, at the
very least should have taken the appropriate steps (e.g., advise the former to
engage the services of a lawyer who could lend him unbiased legal advice
regarding the legal effects of the waiver) to avoid impropriety and the
appearance of impropriety in his dealings. This step, the respondent failed to
take. In these lights, the Court finds the respondent guilty of impropriety.

The Applicable Penalty

Under Section 11 (B), in relation to Section 9 (4) of Rule 140, as amended
by A.M. No. 01-8-10-SC, 15 violation of Supreme Court rules constitutes a less
serious charge punishable by any of the following sanctions:
1. Suspension from office without salary and other benefits for not
less than one (1) nor more than three (3) months; or

2. A fine of more than P10,000.00 but not exceeding P20,000.00.

On the other hand, Impropriety which constitutes as alight charge is
punishable by:
1. A fine of not less than P1,000.00 but not exceeding P10,000.00
and/or;
2. Censure;
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 3. Reprimand;

4. Admonition with warning.

Considering the nature and extent of the respondent's transgressions, we
find it proper to impose on him the following penalties: (1) a fine of Twenty
Thousand Pesos (P20,000.00) for violation of Rule 5.06 of the Code; and (2) a
fine of Ten Thousand Pesos (P10,000.00) for impropriety.

WHEREFORE, the respondent Judge Rogelio S. Lucmayon, Municipal Trial

Court in Cities, Mandaue City, Cebu is found GUILTY of (1) violating Rule 5.06
of the Code of Judicial Conduct; and (2) impropriety. We hereby impose the
total fine of THIRTY THOUSAND PESOS (P30,000.00) for these offenses,
with a STERN WARNING that a repetition of the same or similar acts shall be
dealt with more severely.
SO ORDERED.
Carpio, Del Castillo, Mendoza and Leonen, JJ., concur.

Footnotes
1. Rollo, pp. 2-11.
2. Id. at 95-103.
3. Id. at 154-158.

4. Id. at 159-160.
5. Id. at 161-168.
6. Id. at 179-184.
7. Rule 5.06 of the Code of Judicial Conduct provides: "A judge should not serve as
the executor, administrator, trustee, guardian, or other fiduciary, except for
the estate, trusts, or person of a member of the immediate family, and then
only if such service will not interfere with the proper performance of judicial
duties. "Member of immediate family" shall be limited to the spouse and
relatives within the second degree of consanguinity. As a family, a judge
shall not:
(a)  serve in proceedings that might come before the court of said judge; or
(b)  act as such contrary to Rule 5.02 to 5.05"
8. Id.

9. Carual v. Brusola, A.M. No. RTJ-99-1500, October 20, 1999, 317 SCRA 54, 60-64.
10. A.M. No. MTJ-00-1338, 465 Phil. 347, 353 (2004).
11. The Code of Judicial Conduct. — Compliance with the Code of Judicial Conduct.
All judges shall strictly comply with this Code.
12. Reyes v. Duque , A.M. No. RTJ-08-2136, September 21, 2010, 631 SCRA 1.
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 13. Imbing v. Tiongzon , A.M. No. MTJ-91-595, February 7, 1994, 229 SCRA 690.

14. A.M. No. RTJ-96-1351, 356 Phil. 317, 329-330, (1998).

15. Effective 1 October 2001.

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