SECOND DIVISION

[ A.C. No. 8336, September 06, 2017 ]

RICARBO TINDOY AND ELEUTERIA TINDOY, COMPLAINANTS, V.
ATTYS. JESUS A. TANTAY, ALJAY O. GO, AND ARNEL D.
REMPILLO, RESPONDENTS.

Sirs and Mesdames:

Please take notice that the Court, Second Division, issued a Resolution dated 06 September
2017 which reads as follows:

"A.C. No. 8336: RICARBO TINDOY and ELEUTERIA TINDOY, Complainants, v.

ATTYS. JESUS A. TANTAY, ALJAY O. GO, and ARNEL D. REMPILLO,
Respondents.

Before the Court is an administrative complaint filed by Ricardo Tindoy and Eleuteria
Tindoy (Spouses Tindoy) against respondents Atty. Jesus A. Tantay (Tantay), Atty. Aljay 0.
Go (Go), and Atty. Arnel D. Rempillo (Rempillo) for gross professional neglect.

The present administrative case stemmed from a civil case[1] filed against Spouses Tindoy
for Annulment of Sale before the Regional Trial Court' (RTC) of Agusan del Norte and
Butuan City. For their defense, Spouses Tindoy sought legal assistance from the Regional
Public Attorney's Office (PAO) and Tantay was assigned by the PAO as Spouses Tindoy's
counsel de officio.

In a Joint-Affidavit Complaint dated 20 November 2008,[2] Spouses Tindoy alleged that in a

scheduled pre-trial conference of the civil case on 4 November 2002, Tantay failed to appear
and submit a pre-trial brief three days prior to the pre-trial conference. During the re-
scheduled pre-trial conference on 16 December 2002, Tantay again failed to appear and
submit a pre-trial brief. The RTC then issued an Order[3] resetting the pre-trial conference to
24 February 2003 and directed Spouses Tindoy's counsel to file the pre-trial brief three days
before the pre-trial conference. On 24 February 2003, Tantay once again failed to appear in
the pre-trial conference and submit a pre-trial brief in the civil case. The RTC in an Order[4]
on the same day declared Spouses Tindoy in default. Spouses Tindoy claimed that instead of
filing a motion for reconsideration, Tantay filed a Motion for Withdrawal of
Representation[5] on 3 March 2003 which the RTC granted on 10 April 2003.[6]

Spouses Tindoy alleged that after Tantay withdrew as their counsel, PAO Regional Director
Atty. Lou Nueva assigned Go, another PAO lawyer, to handle Spouses Tindoy's civil case.
Go filed Motions to Lift the Order of Default and to Admit Pre-Trial Brief with
Appearance[7] with the RTC. In an Order[8] dated? June 2004, the RTC denied the motion to
lift order of default.

According to Spouses Tindoy, at first they were not advised by Go that their motion was
denied by the RTC.[9] It was only when they went to the RTC to get a copy of the Order that
Spouses Tindoy learned that their motion was denied by the RTC. Upon realizing that their
motion was denied, Spouses Tindoy asked Go for advice and Go prepared a Petition for
Relief from Judgment (Petition for Relief). Go refused to sign the Petition for Relief he
prepared, and which was instead signed by Rempillo, another PAO lawyer. The Petition for
Relief was denied by the RTC on 6 June 2006.[10] Thereafter, Spouses Tindoy claimed that
both Go and Rempillo refused to handle Spouses Tindoy's civil case and instead advised
Spouses Tindoy to approach the Integrated Bar of the Philippines (IBP) President for
assistance. Spouses Tindoy's Petition for Annulment of Judgment was later dismissed by the
Court of Appeals on 18 September 2007.[11] Spouses Tindoy alleged that due to the gross
professional neglect on the part of PAO lawyers Tantay, Go, and Rempillo, they lost the civil
case and were left with no other legal remedy.

In an Amended/Verified Comment[12] dated 9 November 2009, Tantay denied the allegations

in the complaint. Tantay contended that he met Spouses Tindoy only after their Answer in
the civil case had already been filed. Since the PAO office was about to close during his
meeting with Spouses Tindoy, Tantay advised Spouses Tindoy to return another day for their
interview. Tantay alleged that Spouses Tindoy never returned to the PAO office for their
interview. Tantay contended that he was not appraised of the facts of their pending civil case
and was neither given the documents pertaining to the civil case. Tantay also alleged that
during the two scheduled pre-trial conferences of Spouses Tindoy's civil case, he was on
paternity leave and brought his child to the hospital due to an emergency. Tantay claimed
that the civil case was dismissed due to the fault of Spouses Tindoy since they did not follow
up with the PAO office.[13]

In a Comment[14] dated 15 October 2009, Go claimed that he took over as PAO counsel for
Spouses Tindoy's civil case after the Spouses Tindoy were already declared in default by the
RTC. Go contended that he appeared for Spouses Tindoy in the civil case and filed Motions
to Lift the Order of Default and to Admit Pre-Trial Brief with Appearance as evidenced by
an Order[15] dated 4 August 2003 issued by the RTC. Go also appeared on behalf of Spouses
Tindoy on 8 October 2003[16] in a hearing to set aside the order of default.[17] Go claimed he
even filed on 29 November 2005 an Opposition to Plaintiff's Motion for Writ of
Execution[18] on behalf of Spouses Tindoy. Go contended that he prepared a Petition for
Relief for Spouses Tindoy but could no longer sign because he was reassigned by the PAO to
handle PAO cases in RTC, Branch 33 in Butuan City and that PAO regulations prohibited
him from doing so. Go contended that he exercised his utmost and best efforts to defend
Spouses Tindoy's interests in their civil case.

In a Comment[19] dated 5 October 2009, Rempillo denied the allegations in the complaint
and contended that there was no showing that he failed to act properly in the performance of
his duty as the PAO lawyer assigned to handle Spouses Tindoy's civil case. Rempillo alleged
that he took over as counsel for Spouses Tindoy in the year 2006 after Tantay withdrew as
Spouses Tindoy's counsel and after substituting Go, another PAO lawyer who handled
Spouses Tindoy's civil case. Rempillo contended that the PAO appointed him as counsel for
Spouses Tindoy only after a reassignment of PAO lawyers and that the judgment in Spouses
Tindoy's civil case was already final and executory during his appointment. Rempillo alleged
that he signed and filed the Petition for Relief drafted by Go because Go could not sign due
to Go's reassignment by the PAO to handle cases in a different RTC branch.
On 27 January 2010, this Court, through the Second Division, referred the administrative
case to the IBP for investigation, report and recommendation.[20]

In a Report and Recommendation[21] dated 16 March 2011, IBP Commissioner Acerey C.

Pacheco (Commissioner Pacheco) recommended that Tantay be found guilty of gross
professional neglect and that the administrative complaint against Go and Rempillo be
dismissed for lack of merit.

The dispositive portion of the Report and Recommendation states:

WHEREFORE, premises considered, it is respectfully recommended that Atty.

Jesus A. Tantay be found GUILTY of gross professional neglect and be meted the
penalty of fine in the amount of Ten Thousand Pesos (PI 0,000.00). As for
respondents Attys. Aljay O. Go and Arnel D. Rempillo, it is recommended that
the complaints against them be DISMISSED for utter lack of merit.[22]

In Resolution No. XX-2013-115[23] passed on 28 September 2013, the IBP Board of

Governors adopted and approved with modification Commissioner Pacheco's Report
and Recommendation. The IBP Board of Governors suspended Tantay from the practice of
law for three months for being guilty of gross negligence and dismissed the administrative
complaint against Go and Rempillo.

Resolution No. XX-2013-115 states:

RESOLVED to ADOPT and APPROVE, as it is hereby unanimously ADOPTED

and APPROVED, with modification, the Report and Recommendation of the
Investigating Commissioner in the above-entitled case, herein made part of this
Resolution as Annex "A", and finding the recommendation fully supported by the
evidence on record and the applicable laws and rules and considering that the
complaint against Atty. Aljay 0. Go and Atty. Arnel D. Rempillo lacks merit, the
case is hereby DISMISSED. However, considering that Respondent Atty. Jesus
A. Tantay is guilty of gross negligence, he is hereby SUSPENDED from the
practice of law for three (3) months.

On 10 February 2014, Tantay filed a Motion for Reconsideration[24] which was granted by
the IBP Board of Governors in Resolution No. XXI-2014-278[25] dated 3 May 2014.

Resolution No. XXI-2014-278 states:

RESOLVED to GRANT Respondent Atty. Jesus Tantay's Motion for

Reconsideration, considering that the PAO Administrative Case was dismissed.
Thus, as regards Atty. Tantay[,] Resolution No. XX-2013-115 dated 28
September 2013 is hereby REVERSED and SET ASIDE. Nonetheless, the Board
RESOLVED to sternly WARN him to be circumspect in his dealings. With
respect to Atty. Aljay Go and Atty. Arnel Rempillo, the dismissal of the case
under said Resolution stands.[26]

The Court disagrees with the Report and Recommendation of the IBP Board of Governors.
The IBP has no jurisdiction over the present administrative complaint. The administrative
complaint must be filed with the Office of the Ombudsman.
Republic Act No. 6770[27] (RA 6770), otherwise known as "The Ombudsman Act of 1989,"
states the jurisdiction of the Office of the Ombudsman. Section 15, paragraph 1 of RA 6770
provides:

Section 15. Powers, Functions and Duties.- The Office of the Ombudsman shall
have the following powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any

person, any act or omission of any public officer or employee, office
or agency, when such act or omission appears to be illegal, unjust,
improper or inefficient. It has primary jurisdiction over cases
cognizable by the Sandiganbayan and, in the exercise of his primary
jurisdiction, it may take over, at any stage, from any investigatory
agency of Government, the investigation of such cases.

The 1987 Constitution clothes the Office of the Ombudsman with the administrative
disciplinary authority to investigate and prosecute any act or omission of any government
official when such act or omission appears to be illegal, unjust, improper, or inefficient.[28]
The Office of the Ombudsman is the government agency responsible for enforcing
administrative, civil, and criminal liability of government officials "in every case where the
evidence warrants in order to promote efficient service by the Government to the people."[29]
In Samson v. Restrivera,[30] this Court ruled that the jurisdiction of the Ombudsman
encompasses all kinds of malfeasance, misfeasance, and non-feasance committed by any
public officer or employee during his or her tenure. In Spouses Buffe v. Secretary
Gonzales[31] this Court held that the IBP has no jurisdiction over government lawyers
who are charged with administrative offenses involving their official duties.[32] Likewise,
in Alicias, Jr. v. Macatangay,[33] this Court held that lawyers in government service
exercising governmental functions or duties belong to the administrative disciplinary
jurisdiction of the Office of the Ombudsman. Consequently, acts or omissions of lawyers in
government service relating to the performance of their functions as government employees
or officials are not within the jurisdiction of the IBP but within the administrative
disciplinary jurisdiction of the Office of the Ombudmsan.[34]

Spouses Tindoy's complaint alleges: (1) the PAO counsel's failure to appear in the pre-trial
conference; (2) the PAO counsel's failure to submit a pre-trial brief; and (3) the failure of the
PAO lawyers to perform their duties and serve the best interests of their client. Spouses
Tindoy's complaint contains allegations of acts or omissions connected with respondents'
duties as government lawyers exercising government functions in the PAO; and thus,
respondents are within the administrative disciplinary jurisdiction of their supervisor[35] or
the Office of the Ombudsman.

WHEREFORE, the administrative complaint against Atty. Jesus A. Tantay, Atty. Aljay O.
Go, and Atty. Arnel D. Rempillo is DISMISSED for lack of jurisdiction.

Let a copy of this Resolution be furnished the Office of the Ombudsman for whatever
appropriate action the Ombudsman may wish to take with respect to the possible
administrative and criminal liability of respondents Atty. Jesus A. Tantay, Atty. Aljay O. Go,
and Atty. Arnel D. Rempillo.
SO ORDERED."

Very truly yours,

MA. LOURDES C. PERFECTO

Division Clerk of Clourt

By:
(Sgd.) TERESITA AQUINO TUAZON
Deputy Division Clerk of Court

[1] Civil Case No. 5161.

[2] Rollo, pp. 2-4.

[3] Id. at 63.

[4] Id. at 64.

[5] Id. at 16.

[6] Id. at 3.

[7] Id. at 18-19.

[8] Id. at 22.

[9] d. at 3.

[10] Id. at 26.

[11] Id. at 37-39.

[12] Id. at 176-180.

[13] Id. at 201.

[14] Id. at 154-164.

[15] Id. at 165.

[16] Id. at 166.

[17] Id. at 157.

[18] Id. at 167-168.

[19] Id. at 99-105.

[20] Id. at 229.

[21] Id. at 468-474.

[22] Id. at 474.

[23] Id. at 467.

[24] Id. at 475-512.

[25] Id. at 582-583.

[26] Id. at 582.

[27]An Act Providing for the Functional and Structural Organization of the Office of the
Ombudsman, and
for Other Purposes."

[28] Constitution, Art. XI, Sec. 13, par. (1).

[29] Section 13, RA 6770.

[30] 662 Phil. 45(2011).

[31] A.C. No. 8168, 12 October 2016.

[32] Id.

[33] A.C. No. 7478, 11 January 2017.

[34] Id.

[35] Executive Order No. 292 or "Administrative Code of 1987," Section 47. Disciplinary
Jurisdiction. -(1) The Commission shall decide upon appeal all administrative disciplinary
cases involving the imposition of a penalty of suspension for more than thirty days, or fine in
an amount exceeding thirty days' salary, demotion in rank or salary or transfer, removal or
dismissal from office. A complaint may be filed directly with the Commission by a private
citizen against a government official or employee in which case it may hear and decide the
case or it may deputize any department or agency or official or group of officials to conduct
the investigation. The results of the investigation shall be submitted to the Commission with
recommendation as to the penalty to be imposed or other action to be taken.
(2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and
municipalities shall have jurisdiction to investigate and decide matters involving disciplinary
action against officers and employees under their jurisdiction. Their decisions shall be final
in case the penalty imposed is suspension for not more than thirty days or fine in an amount
not exceeding thirty days' salary. In case the decision rendered by a bureau or office head is
appealable to the Commission, the same may be initially appealed to the department and
finally to the Commission and pending appeal, the same shall be executory except when the
penalty is removal, in which case the same shall be executory only after confirmation by the
Secretary concerned.

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