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G.R. No. 94457 March 18, 1991VICTORIA LEGARDA, petitioner, vs.THE HONORABLE COURT OF APPEALS, NEW CATHAY HOUSE, INC., THE HONORABLE REGIONAL TRIAL COURT OF QUEZON CITY, BRANCH 94, respondents.Singson, Valdez & Associates for petitioner.Lenito T. Serrano for private respondent. GANCAYCO, J.:pNothing is more settled than the rule that the mistake of a counsel binds the client. It is only in case of gross or palpable negligence of counsel when the courts must step in and accord relief to a client who suffered thereby.The present case is a typical example of such rare exception.Petitioner Victoria Legarda was the owner of a parcel of land and the improvements thereon located at 123 West Avenue, Quezon City. On January 11, 1985 respondent New Cathay House, Inc. filed a complaint against the petitioner for specific performance with preliminary injunction and damages in the Regional Trial Court (RTC) for Quezon City alleging, among others, that petitioner entered into a lease agreement with the private respondent through its representative, Roberto V. Cabrera, Jr., of the aforestated property of petitioner effective January 1, 1985 until December 31, 1989 or for a period of five (5) years; that the rental is P25,000.00 per month with 5% escalation per year; that on November 23, 1984, private respondent deposited the amount of P72,000.00 with petitioner as down payment of rentals; that respondent drew up the written contract and sent it to petitioner, that petitioner failed and refused to execute and sign the same despite demands of respondent; and that the respondent suffered damages due to the delay in the renovation and opening of its restaurant business. The private respondent prayed that pending the resolution of the case a restraining order be issued against petitioner or her agents enjoining them from stopping the renovation and use of the premises by private respondent. It was also prayed that after due hearing the petitioner be ordered to execute the lease contract; to pay actual compensatory, exemplary and other damages in such amount as may be proved during the trial including P30,000.00 attorney's fees plus P300.00 per appearance of counsel, and to pay the expenses of litigation. 1
Petitioner engaged the services of counsel to handle her case. Said counsel filed his appearance with an urgent motion for extension of time to file the answer within ten (10) days from February 26, 1985. 2 However, said counsel failed to file the answer within the extended period prayed for. Counsel for private respondent filed an ex-parte motion to declare petitioner in default. This was granted by the trial court on March 25, 1985 and private respondent was allowed to present evidence ex-parte. Thereafter, on March 25, 1985, the trial court rendered its decision, the dispositive part of which reads as follows:WHEREFORE, judgment is hereby rendered ordering defendant Victoria G. Legarda to execute and sign Exhibit "D":, the lease contract for the premises at 123 West Avenue, Quezon City. Accordingly, the preliminary injunction earlier issued on January 31, 1985 is hereby made permanent.Judgment is likewise rendered ordering defendant to pay exemplary damages in the sum of P100,000.00 to serve as example and deterrent for others, and actual and compensatory damages as follows:1. For loss and destroyed goodwill and reputation in the amount of P100,000.00;2. The sum of P61,704.40 as adjustments in the costs of labor and materials for the renovation of the premises;3. The sum of P50,000.00 as unearned income for the delay of plaintiff 's operations from January 1, 1985 up to February 25, 1985 or a period of almost two (2) months;4. The sum of P16,635.57 and P50,424.40 as additional compensatory damages incurred by plaintiff for the extension of the lease of its premises at Makati and salaries of idle employees, respectively;5. The sum of P10,000.00 as and by way of attorney's fees; and6. The costs of suit. 3
Copy of said decision was duly served on counsel for the petitioner but he did not take any action. Thus, the judgment became final and executory. On May 8, 1985, upon motion of private respondent, a writ of execution of the judgment was issued by the trial court. 4
At public auction, the sheriff sold the aforestated property of petitioner to Roberto V. Cabrera, Jr. for the sum of P376,500.00 to satisfy the judgment. The sheriff issued a certificate of sale dated June 8, 1985 covering the said property. 5 After the one year redemption period expired without the petitioner redeeming the property, ownership was consolidated in the name of Roberto V. Cabrera, Jr. The sheriff issued a final deed of sale on July 8, 1986 in his favor. Cabrera registered the same in the office of the Register of Deeds on July 11, 1986.Upon learning of this unfortunate turn of events, petitioner prevailed upon her counsel, to seek the appropriate relief. On November 6, 1986 said counsel filed in the Court of Appeals a petition for annulment of judgment calling attention to the unjust enrichment of private respondent in securing the transfer in its name of the property valued at P 2.5 million without justification; that when the complaint was filed in court by private respondent against the petitioner, the parties came to an agreement to settle their differences, the private respondent assuring petitioner that the complaint it filed shall be withdrawn so petitioner advised her lawyer that there was no longer any need to file an answer to the complaint; that on February 22, 1985, private respondent nevertheless filed an ex-parte motion to declare the petitioner in default; that petitioner was deprived of the right to present her defense through false pretenses, misrepresentation and fraud practiced upon her by private respondent warranting the annulment of the judgment; that the documentary evidence presented by private respondent, which served as the basis of the decision, is falsified and tampered with; that as an example, the voucher filed by petitioner, contains typewritten entries to the effect that the term of the lease is for five (5) years to which petitioner never agreed, and that the option to buy the property was given to the private respondent; that the fact that the property worth P2 million was sold at public auction at a shockingly and questionably low price of P376,500.00 is by itself a sufficient basis for annulling the sale for being grossly inadequate to shock the conscience and understanding of men, giving rise to a presumption of fraud. 6 Thus, it was prayed that a preliminary mandatory injunction issue ordering the private respondent to surrender the property to petitioner and to enjoin the former from further harassing and threatening the peaceful possession of petitioner; and that after hearing, the decision of the trial court in Civil Case No. Q-43811 and the sheriffs certificate of sale 7 be likewise annulled; that private respondent be adjudged to pay petitioner no less than P500,000.00 actual and moral damages, as well as exemplary damages and attorney's fees in the amount of P50,000.00, plus the costs of the suit. 8
On February 2, 1987 an amended petition was filed by counsel for petitioner in the Court of Appeals raising the additional issue that the decision is not supported by the allegations in the pleadings or by the evidence submitted. 9
In due course, a decision was rendered by the Court of Appeals on November 29, 1989. 10 The appellate court made the following observations:On the other hand, petitioner's above allegation of fraud supposedly practiced upon her by Roberto V. Cabrera, Jr. is so improbable as to inspire belief. For the Coronel Law Office had already entered its appearance as petitioner's counsel by then, so that if it were true that Cabrera had already agreed to the conditions imposed by petitioner, said law office would have asked plaintiff to file the proper motion to dismiss or withdraw complaint with the Court, and if plaintiff had refused to do so, it would have filed defendant's answer anyway so that she would not be declared in default. Or said law office would have prepared a compromise agreement embodying the conditions imposed by their client in the lease contract in question which plaintiff had allegedly already accepted, so that the same could have been submitted to the Court and judgment on a compromise could be entered. All these, any conscientious lawyer of lesser stature than the Coronel Law Office, headed by no less than a former law dean, Dean Antonio Coronel, or even a new member of the bar, would normally have done under the circumstances to protect the interests of their client, instead of leaving it to the initiative of plaintiff to withdraw its complaint against defendant, as it had allegedly promised the latter. Thus, it is our belief that this case is one of-pure and simple negligence on the part of defendant's counsel who simply failed to file the answer in behalf of defendant, But counsel's negligence does not stop here. For after it had been furnished with copy of
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the decision by default against defendant, it should then have appealed therefrom or file a petition from relief from the order declaring their client in default or from the judgment by default . [sic] Again, counsel negligently failed to do either. Hence, defendant is bound by the acts of her counsel in this case and cannot be heard to complain that the result might have been different if it had proceeded differently (Pulido vs. C.A., 122 SCRA 63; Ayllon vs. Sevilla, 156 SCRA 257, among other cases). And the rationale of this rule is obvious and clear. For "if such grounds were to be admitted as reasons for opening cases, there would never be an end to a suit so long as new counsel could be employed who could allege and show that the prior counsel had not been sufficiently diligent, or experienced, or learned" (Fernandez vs. Tan Tiong Tick, 1 SCRA 1138). 11
Despite these findings, the appellate court nevertheless dismissed the petition for annulment of judgment with costs against the petitioner. A copy of the said judgment appears to have been served on counsel for the petitioner. However, said counsel did not file a motion for reconsideration or appeal therefrom, so it became final.It was only in March 1990 when the secretary of counsel for petitioner informed the latter of the adverse decision against her only after persistent telephone inquiries of the petitioner.Hence, petitioner secured the services of another lawyer who filed this petition for certiorari under Rule 65 of the Rules of Court wherein it is prayed that the judgment of the Regional Trial Court of Quezon City in Civil Case No. Q-43811, the decision of the Court of Appeals in CA-G.R. No. 10487 and the sheriff's sale at public auction of the property in question be annulled, as the same are attributable to the gross negligence and inefficiency of petitioner's counsel, whose blunder cannot bind the petitioner who was deprived of due process thereby. It is further prayed that private respondent Cathay House, Inc. be ordered to reconvey to petitioner the property covered by TCT No. 270814, which was sold at public auction to Roberto V. Cabrera, Jr. and in whose favor its ownership was consolidated, and thereafter ownership appears to have been transferred to private respondent.The petition is impressed with merit.Petitioner's counsel is a well-known practicing lawyer and dean of a law school. It is to be expected that he would extend the highest quality of service as a lawyer to the petitioner. Unfortunately, counsel appears to have abandoned the cause of petitioner. After agreeing to defend the petitioner in the civil case filed against her by private respondent, said counsel did nothing more than enter his appearance and seek for an extension of time to file the answer. Nevertheless, he failed to file the answer. Hence, petitioner was declared in default on motion of private respondent's counsel. After the evidence of private respondent was received ex-parte, a judgment was rendered by the trial court.Said counsel for petitioner received a copy of the judgment but took no steps to have the same set aside or to appeal therefrom. Thus, the judgment became final and executory. The property of petitioner was sold at public auction to satisfy the judgment in favor of private respondent. The property was sold to Roberto V. Cabrera, Jr., representative of private respondent, and a certificate of sale was issued in his favor. The redemption period expired after one year so a final deed of sale was issued by the sheriff in favor of Cabrera, who in turn appears to have transferred the same to private respondent.During all the time, the petitioner was abroad. When, upon her return, she learned, to her great shock, what happened to her case and property, she nevertheless did not lose faith in her counsel. She still asked Atty. Coronel to take such appropriate action possible under the circumstances.As above related, said counsel filed a petition for annulment of judgment and its amendment in the Court of Appeals. But that was all he did. After an adverse judgment was rendered against petitioner, of which counsel was duly notified, said counsel did not inform the petitioner about it. He did not even ask for a reconsideration thereof, or file a petition for review before this Court. Thus, the judgment became final. It was only upon repeated telephone inquiries of petitioner that she learned from the secretary of her counsel of the judgment that had unfortunately become final.A lawyer owes entire devotion to the interest of his client, warmth and zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability, to the end that nothing can be taken or withheld from his client except in accordance with the law. He should present every remedy or defense authorized by the
law in support of his client's cause, regardless of his own personal views. In the full discharge of his duties to his client, the lawyer should not be afraid of the possibility that he may displease the judge or the general public. 12
Judged by the actuations of said counsel in this case, he has miserably failed in his duty to exercise his utmost learning and ability in maintaining his client's cause. 13 It is not only a case of simple negligence as found by the appellate court, but of reckless and gross negligence, so much so that his client was deprived of her property without due process of law.In People's Homesite & Housing Corp. vs. Tiongco and Escasa, 14 this Court ruled as follows:Procedural technicality should not be made a bar to the vindication of a legitimate grievance. When such technicality deserts from being an aid to justice, the courts are justified in excepting from its operation a particular case. Where there was something fishy and suspicious about the actuations of the former counsel of petitioner in the case at bar, in that he did not given any significance at all to the processes of the court, which has proven prejudicial to the rights of said clients, under a lame and flimsy explanation that the court's processes just escaped his attention, it is held that said lawyer deprived his clients of their day in court, thus entitling said clients to petition for relief from judgment despite the lapse of the reglementary period for filing said period for filing said petition.In Escudero vs. Judge Dulay, 15 this Court, in holding that the counsel's blunder in procedure is an exception to the rule that the client is bound by the mistakes of counsel, made the following disquisition:Petitioners contend, through their new counsel, that the judgments rendered against them by the respondent court are null and void, because they were therein deprived of their day in court and divested of their property without due process of law, through the gross ignorance, mistake and negligence of their previous counsel. They acknowledge that, while as a rule, clients are bound by the mistake of their counsel, the rule should not be applied automatically to their case, as their trial counsel's blunder in procedure and gross ignorance of existing jurisprudence changed their cause of action and violated their substantial rights.We are impressed with petitioner's contentions.Ordinarily, a special civil action under Rule 65 of the Rules of Court will not be a substitute or cure for failure to file a timely petition for review on certiorari (appeal) under Rule 45 of the Rules. Where, however, the application of the rule will result in a manifest failure or miscarriage of justice, the rule may be relaxed.xxx xxx xxxWhile this Court is cognizant of the rule that, generally, a client will suffer the consequences of the negligence, mistake or lack of competence of his counsel, in the interest of justice and equity, exceptions may be made to such rule, in accordance with the facts and circumstances of each case. Adherence to the general rule would, in the instant case, result in the outright deprivation of their property through a technicality.In its questioned decision dated November 19, 1989 the Court of Appeals found, in no uncertain terms, the negligence of the then counsel for petitioner when he failed to file the proper motion to dismiss or to draw a compromise agreement if it was true that they agreed on a settlement of the case; or in simply filing an answer; and that after having been furnished a copy of the decision by the court he failed to appeal therefrom or to file a petition for relief from the order declaring petitioner in default. In all these instances the appellate court found said counsel negligent but his acts were held to bind his client, petitioner herein, nevertheless.The Court disagrees and finds that the negligence of counsel in this case appears to be so gross and inexcusable. This was compounded by the fact, that after petitioner gave said counsel another chance to make up for his omissions by asking him to file a petition for annulment of the judgment in the appellate court, again counsel abandoned the case of petitioner in that after he received a copy of the adverse judgment of the appellate court, he did not do anything to save the situation or inform his client of the judgment. He allowed the judgment to lapse and become final. Such reckless and gross negligence should not be allowed to bind the petitioner. Petitioner was thereby effectively deprived of her day in court.Thus, We have before Us a case where to enforce an alleged lease agreement of the property of petitioner, private respondent went to court, and that because of the gross negligence of the counsel for the petitioner, she lost the case as well as the title and ownership of the property, which is worth millions. The mere lessee then
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now became the owner of the property. Its true owner then, the petitioner, now is consigned to penury all because her lawyer appear to have abandoned her case not once but repeatedly.The Court cannot allow such a grave injustice to prevail. It cannot tolerate such unjust enrichment of the private respondent at the expense of the petitioner. The situation is aggravated by the fact that said counsel is a well-known practicing lawyer and the dean of a law school as the Court at the beginning of this discourse observed. His competence should be beyond cavil. Thus, there appears to be no cogent excuse for his repeated negligence and inaction. His lack of devotion to duty is so gross and palpable that this Court must come to the aid of his distraught client, the petitioner herein.As member of the Philippine Bar he owes complete fidelity to the cause of his client. He should give adequate attention, care and time to his cases. This is the reason why a practicing lawyer should accept only so many cases he can afford to handle. And once he agrees to handle a case, he should undertake the task with dedication and care. If he should do any less, then he is not true to his oath as a lawyer.WHEREFORE, the petition is GRANTED and the questioned decision of the Regional Trial Court of Quezon City dated March 25, 1985 in Civil Case No. Q-43811; the decision of the Court of Appeals dated November 29, 1989 in CA-G.R. No. SP-10487; the Sheriff 's Certificate of Sale dated June 27, 1985 of the property in question; and the subsequent final deed of sale covering the same property, are all hereby declared null and void. Private respondent New Cathay House, Inc. is directed to reconvey said property to the petitioner, and the Register of Deeds is ordered to cancel the registration of said property in the name of private respondent and to issue a new one in the name of petitioner. Costs against private respondent. Said counsel for petitioner is hereby required to show cause within ten (10) days from notice why he should not be held administratively liable for his acts and omissions hereinabove described in this decision.SO ORDERED. A.C. No. 2597 March 12, 1998GLORITO V. MATURAN, petitioner, vs.ATTY. CONRADO S. GONZALES, respondent.R E S O L U T I O N ROMERO, J.:A complaint for disbarment was filed with this Court on October 25, 1983, by Glorito V. Maturan against his counsel, Atty. Conrado S. Gonzales, charging him with immoral, unethical, and anomalous acts. The respondent filed his comment thereto on February 6, 1984. On November 11, 1997, or after thirteen (13) years, the Board of Governors of the Integrated Bar of the Philippines submitted their report and recommendation on the instant case.The facts, as culled from the records, are as follows:Spouses Antonio and Gloria Casquejo instituted their son-in-law, Glorito V. Maturan (herein petitioner), as their attorney-in-fact, through a Special Power of Attorney (SPA) dated November 6, 1981. Said SPA authorized Maturan to file ejectment cases against squatters occupying Lot 1350-A, Psd-50375, located in General Santos City, as well as criminal cases against the latter for violation of P.D. 772, again in connection with said lot. Respondent, Atty. Conrado Gonzales, prepared and notarized said Special Power of Attorney.Subsequently, Glorito Maturan engaged the services of respondent in ejecting several squatters occupying Lot 1350-A, Psd-50735. While said lot was registered in the name of Celestino Yokingco, Antonio Casquejo had, however, instituted a case for reconveyance of property and declaration of nullity against the former, docketed as Civil Case No. 2067.As a consequence of his engagement by petitioner, respondent Gonzales filed Civil Case No. 1783-11 for Forcible Entry and Damages against several individuals. On February 18, 1983, a judgment was rendered in favor of petitioner. Petitioner, through respondent, filed a motion for issuance of a writ of execution on March 10, 1983.
In the interim, the parties to Civil Case No. 2067 entered into a compromise agreement, which was judicially approved in a judgment dated March 28, 1983.On June 22, 1983, while the motion for issuance of a writ of execution was pending, and without withdrawing as counsel for petitioner, respondent filed, on behalf of Celestino Yokingco, et al., Civil Case No. 2746, an action to annul the judgment rendered in Civil Case No. 2067. The action was predicated on the lack of authority on the part of petitioner to represent Antonio and Gloria Casquejo, as no such authorization was shown to be on record in Civil Case No. 2067. On August 24, 1983, respondent, on behalf of Celestino Yokingco, et al., also filed Special Civil Case No. 161 for injunction with a prayer for preliminary injunction, with damages, against petitioner.Aggrieved by respondent's acceptance of professional employment from their adversary in Civil Case No. 2067, and alleging that privileged matters relating to the land in question had been transmitted by petitioner to respondent in Civil Case 1783-11, petitioner filed an administrative complaint against the former for immoral, unethical, and anomalous acts and asked for his disbarment.Respondent, in a comment dated January 25, 1984, denied having committed any malicious, unethical, unbecoming, immoral, or anomalous act against his client. Respondent declared that he was of the belief that filing a motion for issuance of a writ of execution was the last and final act in the lawyer-client relationship between himself and petitioner, and that his formal withdrawal as counsel for the Casquejos was unnecessary in order to sever the lawyer-client relationship between them. Furthermore, he alleged that his acceptance of employment from Yokingco was for him, an opportunity to honestly earn a little more for his children's sustenance.The investigating commissioner of the Integrated Bar of the Philippines, in his report dated August 21, 1997, found respondent guilty of representing conflicting interests and recommended that he be suspended for three (3) years. The Board of Governors of the IBP adopted and approved the report and recommendation of the investigating commissioner but recommended that the suspension be reduced from three (3) years to one (1) year.This Court adopts the findings of the investigating commissioner finding respondent guilty of representing conflicting interests. It is improper for a lawyer to appear as counsel for one party against the adverse party who is his client in a related suit, as a lawyer is prohibited from representing conflicting interests or discharging inconsistent duties. He may not, without being guilty of professional misconduct, act as counsel for a person whose interest conflicts with that of his present or former client. 1 That the representation of conflicting interest is in good faith and with honest intention on the part of the lawyer does not make the prohibition inoperative.The reason for the prohibition is found in the relation of attorney and client, which is one of trust and confidence of the highest degree. A lawyer becomes familiar with all the facts connected with his client's case. He learns from his client the weak points of the action as well as the strong ones. Such knowledge must be considered sacred and guarded with care. No opportunity must be given him to take advantage of the client's secrets. A lawyer must have the fullest confidence of his client. For if the confidence is abused, the profession will suffer by the loss thereof. 2
This Court finds respondent's actuations violative of Canon 6 of the Canons of Professional Ethics which provide in part:It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.Moreover, respondent's justification for his actions reveal a patent ignorance of the fiduciary obligations which a lawyer owes to his client. A lawyer-client relationship is not terminated by the filing of a motion for a writ of execution. His acceptance of a case implies that he will prosecute the case to its conclusion. He may not be permitted to unilaterally terminate the same to the prejudice of his client.As to the recommendation that the term of suspension be reduced from three years to one year, we find the same to be unwarranted. In similar cases decided by the Supreme Court, the penalty of two or three years suspension has been imposed where respondent was found guilty of representing conflicting interests. In Vda. De Alisbo vs.Jalandoon, Sr., 3 the respondent, who appeared for complainant in a case for revival of
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judgment, even though he had been the counsel of the adverse party in the case sought to be revived, was suspended for a period of two years. In Bautista vs. Barrios, 4 a suspension of two years was imposed on respondent Barrios, who had drafted a deed of partition for petitioner, but who appeared for the other party therein, when the same was sought to be enforced by petitioner. In PNB vs. Cedo, 5 the Court even suspended the respondent therein for three years, but only because respondent not only represented conflicting interests, but also deliberately intended to attract clients with interests adverse to his former employer. Finally, in Natan vs. Capule, 6 respondent was suspended for two years after he accepted professional employment in the very case in which his former client was the adverse party.ACCORDINGLY, this Court resolves to MODIFY the IBP recommendation to suspend respondent for one year and modifies it to SUSPENSION from the practice of law for TWO (2) YEARS, effective immediately.SO ORDERED.EN BANCA.C. No. 6160 March 30, 2006NESTOR PEREZ , Complainant, vs.ATTY. DANILO DE LA TORRE, Respondent. D E C I S I O NYNARES-SANTIAGO, J.:In a letter-complaint1 dated July 30, 2003 addressed to then Chief Justice Hilario G. Davide, Jr., complainant Nestor Perez charged respondent Atty. Danilo de la Torre with misconduct or conduct unbecoming of a lawyer for representing conflicting interests. Perez alleged that he is the barangay captain of Binanuaanan, Calabanga, Camarines Sur; that in December 2001, several suspects for murder and kidnapping for ransom, among them Sonny Boy Ilo and Diego Avila, were apprehended and jailed by the police authorities; that respondent went to the municipal building of Calabanga where Ilo and Avila were being detained and made representations that he could secure their freedom if they sign the prepared extrajudicial confessions; that unknown to the two accused, respondent was representing the heirs of the murder victim; that on the strength of the extrajudicial confessions, cases were filed against them, including herein complainant who was implicated in the extrajudicial confessions as the mastermind in the criminal activities for which they were being charged. Respondent denied the accusations against him. He explained that while being detained at the Calabanga Municipal Police Jail, Avila sought his assistance in drafting an extrajudicial confession regarding his involvement in the crimes of kidnapping for ransom, murder and robbery. He advised Avila to inform his parents about his decision to make an extrajudicial confession, apprised him of his constitutional rights and of the possibility that he might be utilized as a state-witness. Respondent claimed that when Ilo sought his assistance in executing his extrajudicial confession, he conferred with Ilo in the presence of his parents; and only after he was convinced that Ilo was not under undue compulsion did he assist the accused in executing the extrajudicial confession. The complaint was referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.2 On August 16, 2005, the Investigating Commissioner submitted his report with the following recommendation:WHEREFORE, it is respectfully recommended that Atty. Danilo de la Torre be suspended for one (1) year from the practice of the legal profession for violation of Rule 15.03 of the Code of Professional Responsibility.RESPECTFULLY SUBMITTED. The Board of Governors of the IBP modified the recommendation by increasing the period of suspension to two years.In finding the respondent guilty of representing conflicting interests, the Investigating Commissioner opined that:In administrative proceedings, the complainant has the burden of proving, by substantial evidence, the allegations in his complaint. The complainant was able to prove by substantial evidence his charge against Atty. de la Tor[r]e. The respondent admitted that his services as a lawyer were retained by both Avila and Ilo. Perez
was able to show that at the time that Atty. de la Torre was representing the said two accused, he was also representing the interest of the victim’s family. This was declared by the victim’s daughter, Vicky de Chavez, who testified before Branch 63 of the Regional Trial Court of Camarines Sur that her family retained the services of Atty. Danilo de la Torre to prosecute the case against her father’s killers. She even admitted that she was present when Atty. de la Torre met with and advised Avila and Ilo on one occasion. This is proof that the respondent consciously offered his services to Avila and Ilo despite the fact that he was already representing the family of the two accused’s victim. It may not even be improbable that respondent purposely offered to help the accused in order to further his other clients’ interest. The respondent failed to deny these facts or offer competent evidence to refute the said facts despite the ample opportunity given him. Under Rule 15.03 of the Code of Professional Responsibility, a lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts. Respondent is therefore duty bound to refrain from representing two parties having conflicting interests in a controversy. By doing precisely the foregoing, and without any proof that he secured the written consent of both parties after explaining to them the existing conflict of interest, respondent should be sanctioned. We agree with the findings of the IBP except for the recommended penalty.There is conflict of interests when a lawyer represents inconsistent interests of two or more opposing parties. The test is "whether or not in behalf of one client, it is the lawyer’s duty to fight for an issue or claim, but it is his duty to oppose it for the other client. In brief, if he argues for one client, this argument will be opposed by him when he argues for the other client." This rule covers not only cases in which confidential communications have been confided, but also those in which no confidence has been bestowed or will be used.3
There is a representation of conflicting interests if the acceptance of the new retainer will require the attorney to do anything which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation, to use against his first client any knowledge acquired through their connection.4
The prohibition against representing conflicting interest is founded on principles of public policy and good taste. In the course of a lawyer-client relationship, the lawyer learns all the facts connected with the client’s case, including the weak and strong points of the case. The nature of that relationship is, therefore, one of trust and confidence of the highest degree. It behooves lawyers not only to keep inviolate the client’s confidence, but also to avoid the appearance of impropriety and double-dealing for only then can litigants be encouraged to entrust their secrets to their lawyers, which is of paramount importance in the administration of justice.5
To negate any culpability, respondent explained that he did not offer his legal services to accused Avila and Ilo but it was the two accused who sought his assistance in executing their extrajudicial confessions. Nonetheless, he acceded to their request to act as counsel after apprising them of their constitutional rights and after being convinced that the accused were under no compulsion to give their confession.The excuse proferred by the respondent does not exonerate him from the clear violation of Rule 15.03 of the Code of Professional Responsibility which prohibits a lawyer from representing conflicting interests except by written consent of all concerned given after a full disclosure of the facts. As found by the IBP, at the time respondent was representing Avila and Ilo, two of the accused in the murder of the victim Resurreccion Barrios, he was representing the family of the murder victim. Clearly, his representation of opposing clients in the murder case invites suspicion of double-dealing and infidelity to his clients.What is unsettling is that respondent assisted in the execution by the two accused of their confessions whereby they admitted their participation in various serious criminal offenses knowing fully well that he was retained previously by the heirs of one of the victims. Respondent, who presumably knows the intricacies of the law, should have exercised his better judgment before conceding to accused’s choice of counsel. It did not cross his mind to inhibit himself from acting as their counsel and instead, he even assisted them in executing the extrajudicial confession. Considering that this is respondent’s first infraction, disbarment as sought by the complaint is deemed to be too severe. Under the present circumstances, we find that a suspension from the practice of law for three years is warranted.
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WHEREFORE, Atty. Danilo de la Torre is found GUILTY of violation of Rule 15.03 of the Code of Professional Responsibility for representing conflicting interests. He is SUSPENDED for THREE YEARS from the practice of law, effective upon his receipt of this Decision. He is WARNED that a repetition of the same or similar acts will be dealt with more severely.Let copies of this Decision be entered in the record of respondent and served on the IBP, as well as on the Court Administrator who shall circulate it to all courts for their information and guidance.SO ORDERED. A.C. No. 6705 March 31, 2006RUTHIE LIM-SANTIAGO, Complainant, vs.ATTY. CARLOS B. SAGUCIO, Respondent.D E C I S I O NCARPIO, J.:The CaseThis is a disbarment complaint against Atty. Carlos B. Sagucio for violating Rule 15.03 of the Code of Professional Responsibility and for defying the prohibition against private practice of law while working as government prosecutor.The FactsRuthie Lim-Santiago ("complainant") is the daughter of Alfonso Lim and Special Administratrix of his estate. 1Alfonso Lim is a stockholder and the former President of Taggat Industries, Inc. 2
Atty. Carlos B. Sagucio ("respondent") was the former Personnel Manager and Retained Counsel of Taggat Industries, Inc. 3 until his appointment as Assistant Provincial Prosecutor of Tuguegarao, Cagayan in 1992. 4
Taggat Industries, Inc. ("Taggat") is a domestic corporation engaged in the operation of timber concessions from the government. The Presidential Commission on Good Government sequestered it sometime in 1986, 5 and its operations ceased in 1997. 6
Sometime in July 1997, 21 employees of Taggat ("Taggat employees") filed a criminal complaint entitled "Jesus Tagorda, Jr. et al. v. Ruthie Lim-Santiago," docketed as I.S. No. 97-240 ("criminal complaint"). 7 Taggat employees alleged that complainant, who took over the management and control of Taggat after the death of her father, withheld payment of their salaries and wages without valid cause from 1 April 1996 to 15 July 1997. 8
Respondent, as Assistant Provincial Prosecutor, was assigned to conduct the preliminary investigation. 9 He resolved the criminal complaint by recommending the filing of 651 Informations 10 for violation of Article 288 11 in relation to Article 116 12 of the Labor Code of the Philippines. 13
Complainant now charges respondent with the following violations:1. Rule 15.03 of the Code of Professional ResponsibilityComplainant contends that respondent is guilty of representing conflicting interests. Respondent, being the former Personnel Manager and Retained Counsel of Taggat, knew the operations of Taggat very well. Respondent should have inhibited himself from hearing, investigating and deciding the case filed by Taggat employees. 14Furthermore, complainant claims that respondent instigated the filing of the cases and even harassed and threatened Taggat employees to accede and sign an affidavit to support the complaint. 15
2. Engaging in the private practice of law while working as a government prosecutorComplainant also contends that respondent is guilty of engaging in the private practice of law while working as a government prosecutor. Complainant presented evidence to prove that respondent received P10,000 as retainer’s fee for the months of January and February 1995, 16 another P10,000 for the months of April and May 1995, 17and P5,000 for the month of April 1996. 18
Complainant seeks the disbarment of respondent for violating Rule 15.03 of the Code of Professional Responsibility and for defying the prohibition against private practice of law while working as government prosecutor.Respondent refutes complainant’s allegations and counters that complainant was merely aggrieved by the resolution of the criminal complaint which was adverse and contrary to her expectation. 19
Respondent claims that when the criminal complaint was filed, respondent had resigned from Taggat for more than five years. 20 Respondent asserts that he no longer owed his undivided loyalty to Taggat. 21 Respondent argues that it was his sworn duty to conduct the necessary preliminary investigation. 22 Respondent contends that complainant failed to establish lack of impartiality when he performed his duty. 23 Respondent points out that complainant did not file a motion to inhibit respondent from hearing the criminal complaint 24 but instead complainant voluntarily executed and filed her counter-affidavit without mental reservation. 25
Respondent states that complainant’s reason in not filing a motion to inhibit was her impression that respondent would exonerate her from the charges filed as gleaned from complainant’s statement during the hearing conducted on 12 February 1999:x x xQ. (Atty. Dabu). What do you mean you didn’t think he would do it, Madam Witness?A. Because he is supposed to be my father’s friend and he was working with my Dad and he was supposed to be trusted by my father. And he came to me and told me he gonna help me. x x x. 26
Respondent also asserts that no conflicting interests exist because he was not representing Taggat employees or complainant. Respondent claims he was merely performing his official duty as Assistant Provincial Prosecutor. 27Respondent argues that complainant failed to establish that respondent’s act was tainted with personal interest, malice and bad faith. 28
Respondent denies complainant’s allegations that he instigated the filing of the cases, threatened and harassed Taggat employees. Respondent claims that this accusation is bereft of proof because complainant failed to mention the names of the employees or present them for cross-examination. 29
Respondent does not dispute his receipt, after his appointment as government prosecutor, of retainer fees from complainant but claims that itwas only on a case-to-case basis and it ceased in 1996. 30 Respondent contends that the fees were paid for his consultancy services and not for representation. Respondent submits that consultation is not the same as representation and that rendering consultancy services is not prohibited. 31 Respondent, in his Reply-Memorandum, states:x x x [I]f ever Taggat paid him certain amounts, these were paid voluntarily by Taggat without the respondent’s asking, intended as token consultancy fees on a case-to-case basis and not as or for retainer fees. These payments do not at all show or translate as a specie of ‘conflict of interest’. Moreover, these consultations had no relation to, or connection with, the above-mentioned labor complaints filed by former Taggat employees. 32
Respondent insists that complainant’s evidence failed to prove that when the criminal complaint was filed with the Office of the Provincial Prosecutor of Cagayan, respondent was still the retained counsel or legal consultant. 33
While this disbarment case was pending, the Resolution and Order issued by respondent to file 651 Informations against complainant was reversed and set aside by Regional State Prosecutor of Cagayan Rodolfo B. Cadelina last 4 January 1999. 34 Hence, the criminal complaint was dismissed. 35
The IBP’s Report and RecommendationThe Integrated Bar of the Philippines’ Investigating Commissioner Ma. Carmina M. Alejandro-Abbas ("IBP Commissioner Abbas") heard the case 36 and allowed the parties to submit their respective memoranda. 37 Due to IBP Commissioner Abbas’ resignation, the case was reassigned to Commissioner Dennis A.B. Funa ("IBP Commissioner Funa"). 38
After the parties filed their memoranda and motion to resolve the case, the IBP Board of Governors issued Resolution No. XVI-2004-479 ("IBP Resolution") dated 4 November 2004 adopting with modification 39 IBP Commissioner Funa’s Report and Recommendation ("Report") finding respondent guilty of conflict of interests, failure to safeguard a former client’s interest, and violating the prohibition against the private practice of law while being a government prosecutor. The IBP Board of Governors recommended the imposition of a penalty of three years suspension from the practice of law. The Report reads:
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Now the issue here is whether being a former lawyer of Taggat conflicts with his role as Assistant Provincial Prosecutor in deciding I.S. No. 97-240. A determination of this issue will require the test of whether the matter in I.S. No. 97-240 will conflict with his former position of Personnel Manager and Legal Counsel of Taggat.I.S. No. 97-240 was filed for "Violation of Labor Code" (see Resolution of the Provincial Prosecutors Office, Annex "B" of Complaint). Herein Complainant, Ruthie Lim-Santiago, was being accused as having the "management and control" of Taggat (p. 2, Resolution of the Prov. Pros. Office, supra).Clearly, as a former Personnel Manager and Legal Counsel of Taggat, herein Respondent undoubtedly handled the personnel and labor concerns of Taggat. Respondent, undoubtedly dealt with and related with the employees of Taggat. Therefore, Respondent undoubtedly dealt with and related with complainants in I.S. No. 97-240. The issues, therefore, in I.S. No. 97-240, are very much familiar with Respondent. While the issues of unpaid salaries pertain to the periods 1996-1997, the mechanics and personalities in that case are very much familiar with Respondent.A lawyer owes something to a former client. Herein Respondent owes to Taggat, a former client, the duty to "maintain inviolate the client’s confidence or to refrain from doing anything which will injuriously affect him in any matter in which he previously represented him" (Natam v. Capule, 91 Phil. 640; p. 231, Agpalo, Legal Ethics, 4th ed.)Respondent argues that as Assistant Provincial Prosecutor, he does not represent any client or any interest except justice. It should not be forgotten, however, that a lawyer has an immutable duty to a former client with respect to matters that he previously handled for that former client. In this case, matters relating to personnel, labor policies, and labor relations that he previously handled as Personnel Manager and Legal Counsel of Taggat. I.S. No. 97-240 was for "Violation of the Labor Code." Here lies the conflict. Perhaps it would have been different had I.S. No. 97-240 not been labor-related, or if Respondent had not been a Personnel Manager concurrently as Legal Counsel. But as it is, I.S. No. 97-240 is labor-related and Respondent was a former Personnel Manager of Taggat.x x x xWhile Respondent ceased his relations with Taggat in 1992 and the unpaid salaries being sought in I.S. No. 97-240 were of the years 1996 and 1997, the employees and management involved are the very personalities he dealt with as Personnel Manager and Legal Counsel of Taggat. Respondent dealt with these persons in his fiduciary relations with Taggat. Moreover, he was an employee of the corporation and part of its management.x x x xAs to the propriety of receiving "Retainer Fees" or "consultancy fees" from herein Complainant while being an Assistant Provincial Prosecutor, and for rendering legal consultancy work while being an Assistant Provincial Prosecutor, this matter had long been settled. Government prosecutors are prohibited to engage in the private practice of law (see Legal and Judicial Ethics, Ernesto Pineda, 1994 ed., p. 20; People v. Villanueva, 14 SCRA 109; Aquino v. Blanco 70 Phil. 647). The act of being a legal consultant is a practice of law. To engage in the practice of law is to do any of those acts that are characteristic of the legal profession (In re: David, 93 Phil. 461). It covers any activity, in or out of court, which required the application of law, legal principles, practice or procedures and calls for legal knowledge, training and experience (PLA v. Agrava, 105 Phil. 173; People v. Villanueva, 14 SCRA 111; Cayetano v. Monsod, 201 SCRA 210).Respondent clearly violated this prohibition.As for the secondary accusations of harassing certain employees of Taggat and instigating the filing of criminal complaints, we find the evidence insufficient.Accordingly, Respondent should be found guilty of conflict of interest, failure to safeguard a former client’s interest, and violating the prohibition against the private practice of law while being a government prosecutor. 40
The IBP Board of Governors forwarded the Report to the Court as provided under Section 12(b), Rule 139-B 41 of the Rules of Court.The Ruling of the CourtThe Court exonerates respondent from the charge of violation of Rule 15.03 of the Code of Professional Responsibility ("Code"). However, the Court finds respondent liable for violation of Rule 1.01, Canon 1 of the
Code of Professional Responsibility against unlawful conduct. 42 Respondent committed unlawful conduct when he violated Section 7(b)(2) of the Code of Conduct and Ethical Standards for Public Officials and Employees or Republic Act No. 6713 ("RA 6713").Canon 6 provides that the Code "shall apply to lawyers in government service in the discharge of their official duties." 43 A government lawyer is thus bound by the prohibition "not [to] represent conflicting interests." 44However, this rule is subject to certain limitations. The prohibition to represent conflicting interests does not apply when no conflict of interest exists, when a written consent of all concerned is given after a full disclosure of the facts or when no true attorney-client relationship exists. 45 Moreover, considering the serious consequence of the disbarment or suspension of a member of the Bar, clear preponderant evidence is necessary to justify the imposition of the administrative penalty. 46
Respondent is also mandated under Rule 1.01 of Canon 1 not to engage in "unlawful x x x conduct." Unlawful conduct includes violation of the statutory prohibition on a government employee to "engage in the private practice of [his] profession unless authorized by the Constitution or law, provided, that such practice will not conflict or tend to conflict with [his] official functions." 47
Complainant’s evidence failed to substantiate the claim that respondent represented conflicting interestsIn Quiambao v. Bamba, 48 the Court enumerated various tests to determine conflict of interests. One test of inconsistency of interests is whether the lawyer will be asked to use against his former client any confidential information acquired through their connection or previous employment. 49 In essence, what a lawyer owes his former client is to maintain inviolate the client’s confidence or to refrain from doing anything which will injuriously affect him in any matter in which he previously represented him. 50
In the present case, we find no conflict of interests when respondent handled the preliminary investigation of the criminal complaint filed by Taggat employees in 1997. The issue in the criminal complaint pertains to non-payment of wages that occurred from 1 April 1996 to 15 July 1997. Clearly, respondent was no longer connected with Taggat during that period since he resigned sometime in 1992.In order to charge respondent for representing conflicting interests, evidence must be presented to prove that respondent used against Taggat, his former client, any confidential information acquired through his previous employment. The only established participation respondent had with respect to the criminal complaint is that he was the one who conducted the preliminary investigation. On that basis alone, it does not necessarily follow that respondent used any confidential information from his previous employment with complainant or Taggat in resolving the criminal complaint.The fact alone that respondent was the former Personnel Manager and Retained Counsel of Taggat and the case he resolved as government prosecutor was labor-related is not a sufficient basis to charge respondent for representing conflicting interests. A lawyer’s immutable duty to a former client does not cover transactions that occurred beyond the lawyer’s employment with the client. The intent of the law is to impose upon the lawyer the duty to protect the client’s interests only on matters that he previously handled for the former client and not for matters that arose after the lawyer-client relationship has terminated.Further, complainant failed to present a single iota of evidence to prove her allegations. Thus, respondent is not guilty of violating Rule 15.03 of the Code.Respondent engaged in the private practice of law while working as a government prosecutorThe Court has defined the practice of law broadly as –x x x any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. "To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill." 51
"Private practice of law" contemplates a succession of acts of the same nature habitually or customarily holding one’s self to the public as a lawyer. 52
Respondent argues that he only rendered consultancy services to Taggat intermittently and he was not a retained counsel of Taggat from 1995 to 1996 as alleged. This argument is without merit because the law does not distinguish between consultancy services and retainer agreement. For as long as respondent performed acts
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that are usually rendered by lawyers with the use of their legal knowledge, the same falls within the ambit of the term "practice of law."Nonetheless, respondent admitted that he rendered his legal services to complainant while working as a government prosecutor. Even the receipts he signed stated that the payments by Taggat were for "Retainer’s fee."53 Thus, as correctly pointed out by complainant, respondent clearly violated the prohibition in RA 6713.However, violations of RA 6713 are not subject to disciplinary action under the Code of Professional Responsibility unless the violations also constitute infractions of specific provisions of the Code of Professional Responsibility. Certainly, the IBP has no jurisdiction to investigate violations of RA 6713 – the Code of Conduct and Ethical Standards for Public Officials and Employees – unless the acts involved also transgress provisions of the Code of Professional Responsibility.Here, respondent’s violation of RA 6713 also constitutes a violation of Rule 1.01 of Canon 1, which mandates that "[a] lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct." Respondent’s admission that he received from Taggat fees for legal services while serving as a government prosecutor is an unlawful conduct, which constitutes a violation of Rule 1.01.Respondent admitted that complainant also charged him with unlawful conduct when respondent stated in his Demurrer to Evidence:In this instant case, the complainant prays that the respondent be permanently and indefinitely suspended or disbarred from the practice of the law profession and his name removed from the Roll of Attorneys on the following grounds:x x x xd) that respondent manifested gross misconduct and gross violation of his oath of office and in his dealings with the public. 54
On the Appropriate Penalty on RespondentThe appropriate penalty on an errant lawyer depends on the exercise of sound judicial discretion based on the surrounding facts. 55
Under Civil Service Law and rules, the penalty for government employees engaging in unauthorized private practice of profession is suspension for six months and one day to one year. 56 We find this penalty appropriate for respondent’s violation in this case of Rule 1.01, Canon 1 of the Code of Professional Responsibility.WHEREFORE, we find respondent Atty. Carlos B. Sagucio GUILTY of violation of Rule 1.01, Canon 1 of the Code of Professional Responsibility. Accordingly, we SUSPEND respondent Atty. Carlos B. Sagucio from the practice of law for SIX MONTHS effective upon finality of this Decision.Let copies of this Decision be furnished the Office of the Bar Confidant to be appended to respondent’s personal record as an attorney, the Integrated Bar of the Philippines, the Department of Justice, and all courts in the country for their information and guidance.SO ORDERED.A.C. No. 6836 January 23, 2006LETICIA GONZALES, Complainant, vs.ATTY. MARCELINO CABUCANA, Respondent.R E S O L U T I O NAUSTRIA-MARTINEZ, J.:Before this Court is a complaint filed by Leticia Gonzales (Gonzales) praying that Atty. Marcelino Cabucana, (respondent) be disbarred for representing conflicting interests.On January 8, 2004, Gonzales filed a petition before the Integrated Bar of the Philippines (IBP) alleging that: she was the complainant in a case for sum of money and damages filed before the Municipal Trial Court in Cities (MTCC) of Santiago City, docketed as Civil Case No. 1-567 where she was represented by the law firm CABUCANA, CABUCANA, DE GUZMAN AND CABUCANA LAW OFFICE, with Atty. Edmar Cabucana handling the case and herein respondent as an associate/partner; on February 26, 2001, a decision was rendered in the civil case ordering the losing party to pay Gonzales the amount of P17,310.00 with interest and P6,000.00 as
attorney’s fees; Sheriff Romeo Gatcheco, failed to fully implement the writ of execution issued in connection with the judgment which prompted Gonzales to file a complaint against the said sheriff with this Court; in September 2003, Sheriff Gatcheco and his wife went to the house of Gonzales; they harassed Gonzales and asked her to execute an affidavit of desistance regarding her complaint before this Court; Gonzales thereafter filed against the Gatchecos criminal cases for trespass, grave threats, grave oral defamation, simple coercion and unjust vexation; notwithstanding the pendency of Civil Case No. 1-567, where respondent’s law firm was still representing Gonzales, herein respondent represented the Gatchecos in the cases filed by Gonzales against the said spouses; respondent should be disbarred from the practice of law since respondent’s acceptance of the cases of the Gatchecos violates the lawyer-client relationship between complainant and respondent’s law firm and renders respondent liable under the Code of Professional Responsibility (CPR) particularly Rules 10.01,1 13.01,2 15.02,315.03,4 21.015 and 21.02.6
On January 9, 2004, the IBP-Commission on Bar Discipline ordered Atty. Marcelino Cabucana, Jr. to submit his Answer to the complaint.7
In his Answer, respondent averred: He never appeared and represented complainant in Civil Case No. 1-567 since it was his brother, Atty. Edmar Cabucana who appeared and represented Gonzales in said case. He admitted that he is representing Sheriff Gatcheco and his wife in the cases filed against them but claimed that his appearance ispro bono and that the spouses pleaded with him as no other counsel was willing to take their case. He entered his appearance in good faith and opted to represent the spouses rather than leave them defenseless. When the Gatchecos asked for his assistance, the spouses said that the cases filed against them by Gonzales were merely instigated by a high ranking official who wanted to get even with them for their refusal to testify in favor of the said official in another case. At first, respondent declined to serve as counsel of the spouses as he too did not want to incur the ire of the high-ranking official, but after realizing that he would be abdicating a sworn duty to delay no man for money or malice, respondent entered his appearance as defense counsel of the spouses free of any charge. Not long after, the present complaint was crafted against respondent which shows that respondent is now the subject of a ‘demolition job.’ The civil case filed by Gonzales where respondent’s brother served as counsel is different and distinct from the criminal cases filed by complainant against the Gatcheco spouses, thus, he did not violate any canon on legal ethics. 8
Gonzales filed a Reply contending that the civil case handled by respondent’s brother is closely connected with the cases of the Gatchecos which the respondent is handling; that the claim of respondent that he is handling the cases of the spouses pro bono is not true since he has his own agenda in offering his services to the spouses; and that the allegation that she is filing the cases against the spouses because she is being used by a powerful person is not true since she filed the said cases out of her own free will.9
The Commission on Bar Discipline of the IBP sent to the parties a Notice of Mandatory Conference dated March 1, 2004.10 On the scheduled conference, only a representative of complainant appeared.11 Commissioner Demaree Raval of the IBP-CBD then directed both parties to file their respective verified position papers.12
Complainant filed a Memorandum reiterating her earlier assertions and added that respondent prepared and notarized counter-affidavits of the Gatcheco spouses; that the high-ranking official referred to by respondent is Judge Ruben Plata and the accusations of respondent against the said judge is an attack against a brother in the profession which is a violation of the CPR; and that respondent continues to use the name of De Guzman in their law firm despite the fact that said partner has already been appointed as Assistant Prosecutor of Santiago City, again in violation of the CPR.13
Respondent filed his Position Paper restating his allegations in his Answer.14
On August 23, 2004, Commissioner Wilfredo E.J.E. Reyes issued an Order notifying both parties to appear before his office on October 28, 2004 for a clarificatory question regarding said case.15 On the said date, only respondent appeared16 presenting a sworn affidavit executed by Gonzales withdrawing her complaint against respondent. It reads:
SINUMPAANG SALAYSAYTUNGKOL SA PAG-UURONG NG DEMANDA
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Ako, si LETICIA GONZALES, nasa tamang edad, Pilipino, may asawa, at nakatira sa BarangayDubinan East, Santiago City, makaraang manumpa ayon sa batas ay nagsasabing:Ako ang nagdedemanda o petitioner sa CBD Case No. 04-1186 na may pamagat na "Leticia Gonzales versus Atty. Marcelino C. Cabucana, Jr." na kasalukuyang nahaharap sa Commission on Bar Discipline ng Integrated Bar of the PhilippinesAng pagkakahain ng naturang demanda ay nag-ugat sa di-pagkakaintindihan na namamagitan sa akin at nina Mr. and Mrs. Romeo and Anita Gatcheco.Dahil sa aking galit sa naturang mag-asawa, idinawit ko si Atty. Marcelino C. Cabucana, Jr. sa sigalot na namamagitan sa akin at sa mag-asawang Gatcheco, gayong nalalaman ko na si Atty. Marcelino C. Cabucana ay walang nalalaman sa naturang di pagkakaintindihan.Makaraang pag-isipang mabuti ang paghain ko ng demanda kontra kay Atty. Marcelino C. Cabucana, Jr., nakumbinsi ako na ang pagdedemanda ko kay Atty. Marcelino C. Cabucana, Jr. ay isang malaking pagkakamali dahil siya ay walang kinalalaman (sic) sa di pagkakaintindihan naming(sic) ng mag-asawang Gatcheco.Si Atty. Marcelino C. Cabucana, Jr. ay di ko rin naging abogado sa Civil Case No. 1-567 (MTCC Br. I Santiago City) na inihain ko kontra kay Eduardo Mangano.Nais kong ituwid ang lahat kung kaya’t aking iniuurong ang naturang kasong inihain ko kontra kayAtty. Marcelino C. Cabucana, Jr. at dahil dito ay hindi na ako interesado pang ituloy and naturang kaso, at aking hinihiling sa kinauukulan na dismisin na ang naturang kaso.Ginawa ko ang sinumpaang salaysay na ito upang patotohanan sa lahat ng nakasaad dito.17
Commissioner Reyes issued an Order dated October 28, 2004 requiring Gonzales to appear before him on November 25, 2004, to affirm her statements and to be subject to clarificatory questioning.18 However, none of the parties appeared.19 On February 17, 2005, only respondent was present. Commissioner Reyes then considered the case as submitted for resolution.20
On February 24, 2005, Commissioner Reyes submitted his Report and Recommendation, portions of which are quoted hereunder:The Undersigned Commissioner believes that the respondent made a mistake in the acceptance of the administrative case of Romeo Gatcheco, however, the Commission (sic) believes that there was no malice and bad faith in the said acceptance and this can be shown by the move of the complainant to unilaterally withdraw the case which she filed against Atty. Marcelino C. Cabucana, Jr. However, Atty. Cabucana is reminded to be more careful in the acceptance of cases as conflict of interests might arise.It is respectfully recommended that Atty. Marcelino C. Cabucana, Jr. (be) sternly warned and reprimanded and…advised to be more circumspect and careful in accepting cases which might result in conflict of interests.21
On June 25, 2005, a Resolution was passed by the Board of Governors of the IBP, to wit:RESOLUTION NO. XVI-2005-153CBD CASE NO. 03-1186Leticia Gonzales vs.Atty. Marcelino Cabucana, Jr.RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of 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 respondent made (a) mistake in the acceptance of the administrative case of Romeo Gatcheco, Atty. Marcelino Cabucana, Jr. is hereby WARNED and REPRIMANDED and advised to be more circumspect and careful in accepting cases which might result in conflict of interests.22
Before going to the merits, let it be clarified that contrary to the report of Commissioner Reyes, respondent did not only represent the Gatcheco spouses in the administrative case filed by Gonzales against them. As respondent himself narrated in his Position Paper, he likewise acted as their counsel in the criminal cases filed by Gonzales against them.23
With that settled, we find respondent guilty of violating Rule 15.03 of Canon 15 of the Code of Professional Responsibility, to wit:Rule 15.03 – A lawyer shall not represent conflicting interest except by written consent of all concerned given after a full disclosure of the facts.It is well-settled that a lawyer is barred from representing conflicting interests except by written consent of all concerned given after a full disclosure of the facts.24 Such prohibition is founded on principles of public policy and good taste as the nature of the lawyer-client relations is one of trust and confidence of the highest degree.25Lawyers are expected not only to keep inviolate the client’s confidence, but also to avoid the appearance of treachery and double-dealing for only then can litigants be encouraged to entrust their secrets to their lawyers, which is of paramount importance in the administration of justice.26
One of the tests of inconsistency of interests is whether the acceptance of a new relation would prevent the full discharge of the lawyer’s duty of undivided fidelity and loyalty to the client or invite suspicion of unfaithfulness or double-dealing in the performance of that duty.27
As we expounded in the recent case of Quiambao vs. Bamba,28
The proscription against representation of conflicting interests applies to a situation where the opposing parties are present clients in the same action or in an unrelated action. It is of no moment that the lawyer would not be called upon to contend for one client that which the lawyer has to oppose for the other client, or that there would be no occasion to use the confidential information acquired from one to the disadvantage of the other as the two actions are wholly unrelated. It is enough that the opposing parties in one case, one of whom would lose the suit, are present clients and the nature or conditions of the lawyer’s respective retainers with each of them would affect the performance of the duty of undivided fidelity to both clients.29
The claim of respondent that there is no conflict of interests in this case, as the civil case handled by their law firm where Gonzales is the complainant and the criminal cases filed by Gonzales against the Gatcheco spouses are not related, has no merit. The representation of opposing clients in said cases, though unrelated, constitutes conflict of interests or, at the very least, invites suspicion of double-dealing which this Court cannot allow.30
Respondent further argued that it was his brother who represented Gonzales in the civil case and not him, thus, there could be no conflict of interests. We do not agree. As respondent admitted, it was their law firm which represented Gonzales in the civil case. Such being the case, the rule against representing conflicting interests applies.As we explained in the case of Hilado vs. David:31
…[W]e… can not sanction his taking up the cause of the adversary of the party who had sought and obtained legal advice from his firm; this, not necessarily to prevent any injustice to the plaintiff but to keep above reproach the honor and integrity of the courts and of the bar. Without condemning the respondent’s conduct as dishonest, corrupt, or fraudulent, we do believe that upon the admitted facts it is highly inexpedient. It had the tendency to bring the profession, of which he is a distinguished member, "into public disrepute and suspicion and undermine the integrity of justice."32
The claim of respondent that he acted in good faith and with honest intention will also not exculpate him as such claim does not render the prohibition inoperative.33
In the same manner, his claim that he could not turn down the spouses as no other lawyer is willing to take their case cannot prosper as it is settled that while there may be instances where lawyers cannot decline representation they cannot be made to labor under conflict of interest between a present client and a prospective one.34Granting also that there really was no other lawyer who could handle the spouses’ case other than him, still he should have observed the requirements laid down by the rules by conferring with the prospective client to ascertain as soon as practicable whether the matter would involve a conflict with another client then seek the written consent of all concerned after a full disclosure of the facts.35 These respondent failed to do thus exposing himself to the charge of double-dealing.We note the affidavit of desistance filed by Gonzales. However, we are not bound by such desistance as the present case involves public interest.36 Indeed, the Court’s exercise of its power to take cognizance of
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administrative cases against lawyers is not for the purpose of enforcing civil remedies between parties, but to protect the court and the public against an attorney guilty of unworthy practices in his profession.37
In similar cases where the respondent was found guilty of representing conflicting interests a penalty ranging from one to three years’ suspension was imposed.38
We shall consider however as mitigating circumstances the fact that he is representing the Gatcheco spouses pro bono and that it was his firm and not respondent personally, which handled the civil case of Gonzales. As recounted by complainant herself, Atty. Edmar Cabucana signed the civil case of complainant by stating first the name of the law firm CABUCANA, CABUCANA, DE GUZMAN AND CABUCANA LAW OFFICE, under which, his name and signature appear; while herein respondent signed the pleadings for the Gatcheco spouses only with his name,39 without any mention of the law firm. We also note the observation of the IBP Commissioner Reyes that there was no malice and bad faith in respondent’s acceptance of the Gatchecos’ cases as shown by the move of complainant to withdraw the case.Thus, for violation of Rule 15.03, Canon 15 of the Code of Professional Responsibility and taking into consideration the aforementioned mitigating circumstances, we impose the penalty of fine of P2,000.00.WHEREFORE, Resolution No. XVI-2005-153 of the Integrated Bar of the Philippines is APPROVED with MODIFICATION that respondent Atty. Marcelino Cabucana, Jr. is FINED the amount of Two Thousand Pesos (P2,000.00) with a STERN WARNING that a commission of the same or similar act in the future shall be dealt with more severely.SO ORDERED.SECOND DIVISIONA.C. No. 5303 June 15, 2006HUMBERTO C. LIM, JR., in behalf of PENTA RESORTS CORPORATION/Attorney-in-Fact of LUMOT A. JALANDONI, Complainant, vs.ATTY. NICANOR V. VILLAROSA, Respondent. R E S O L U T I O NCORONA, J.:Humberto C. Lim Jr.1 filed a verified complaint for disbarment against respondent Atty. Nicanor V. Villarosa on July 7, 2000.2 On February 19, 2002, respondent moved for the consolidation of the said complaint with the following substantially interrelated cases earlier filed with the First Division of this Court:1. Administrative Case No. 5463: Sandra F. Vaflor v. Atty. Adoniram P. Pamplona and Atty. Nicanor V. Villarosa;2. Administrative Case No. 5502: Daniel A. Jalandoni v. Atty. Nicanor V. Villarosa.In a resolution dated February 24, 2003, this Court considered Administrative Case No. 5463 closed and terminated.3 On February 4, 2004, considering the pleadings filed in Administrative Case No. 5502, the Court resolved: (a) to NOTE the notice of the resolution dated September 27, 2003 of the Integrated Bar of the Philippines dismissing the case against respondent for lack of merit; and(b) to DENY, for lack of merit, the petition filed by complainant praying that the resolution of the Integrated Bar of the Philippines dismissing the instant case be reviewed and that proper sanctions be imposed upon respondent.4 No motion for reconsideration of the aforesaid denial in Administrative Case No. 5502 appears in the records. The Court is now called upon to determine the merits of this remaining case (A.C. No. 5303) against respondent.The complaint read:AS FIRST CAUSE OF ACTIONxxx xxx xxx- II -That respondent is a practicing lawyer and a member of the Integrated Bar of the Philippines, Bacolod City, Negros Occidental Chapter…. That sometime on September 19, 1997, Lumot A. Jalandoni, Chairman/President of PRC was sued before RTC, Branch 52 in Civil Case No. 97-9865, RE: Cabiles et al. vs. Lumot Jalandoni, et al. The
latter engaged the legal services of herein respondent who formally entered his appearance on October 2, 1997 as counsel for the defendants Lumot A. Jalandoni/Totti Anlap Gargoles…. Respondent as a consequence of said Attorney-Client relationship represented Lumot A. Jalandoni et al in the entire proceedings of said case. Utmost trust and confidence was reposed on said counsel, hence delicate and confidential matters involving all the personal circumstances of his client were entrusted to the respondent. The latter was provided with all the necessary information relative to the property in question and likewise on legal matters affecting the corporation (PRC) particularly [involving] problems [which affect] Hotel Alhambra. Said counsel was privy to all transactions and affairs of the corporation/hotel…. - III -That it was respondent who exclusively handled the entire proceedings of afore-cited Civil Case No. 97-9865 [and] presented Lumot A. Jalandoni as his witness prior to formally resting his case. However, on April 27, 1999 respondent, without due notice prior to a scheduled hearing, surprisingly filed a Motion to withdraw as counsel, one day before its scheduled hearing on April 28, 1999…. A careful perusal of said Motion to Withdraw as Counsel will conclusively show that no copy thereof was furnished to Lumot A. Jalandoni, neither does it bear her conformity…. No doubt, such notorious act of respondent resulted to (sic) irreparable damage and injury to Lumot A. Jalandoni, et al since the decision of the court RTC, Branch 52 proved adverse to Lumot A. Jalandoni, et al…. The far reaching effects of the untimely and unauthorized withdrawal by respondent caused irreparable damage and injury to Lumot A. Jalandoni, et al; a highly meritorious case in favor of his client suddenly [suffered] unexpected defeat. - IV -That the grounds alleged by respondent for his withdrawal as counsel of Lumot A. Jalandoni, et al. was that he is [a] retained counsel of Dennis G. Jalbuena and the Fernando F. Gonzaga, Inc. It was Dennis G. Jalbuena who recommended him to be the counsel of Lumot A. Jalandoni, et al. It is worthy to note that from the outset, respondent already knew that Dennis G. Jalbuena is the son-in-law of Lumot A. Jalandoni being married to her eldest daughter, Carmen J. Jalbuena. The other directors/officers of PRC were comprised of the eldest sibling of the remaining children of Lumot A. Jalandoni made in accordance with her wishes, with the exception of Carmen J. Jalbuena, the only daughter registered as one of the incorporators of PRC, obviously, being the author of the registration itself [sic]…. Respondent further stated that he cannot refuse to represent Dennis G. Jalbuena in the case filed against the latter before the City Prosecutors Office by PRC/Lumot A. Jalandoni due to an alleged retainership agreement with said Dennis G. Jalbuena. [He] likewise represented Carmen J. Jalbuena and one Vicente Delfin when PRC filed the criminal complaint against them…. On April 06, 1999, twenty-one (21) days prior to respondent’s filing of his Motion to Withdraw as Counsel of Lumot A. Jalandoni, et al., respondent entered his appearance with Bacolod City Prosecutor OIC-Vicente C. Acupan, through a letter expressly stating that effective said date he was appearing as counsel for both Dennis G. Jalbuena and Carmen J. Jalbuena and Vicente Delfin in the "Estafa" case filed by the corporation (PRC) against them…. Simply stated, as early as April 6, 1999 respondent already appeared for and in behalf of the Sps. Carmen and Dennis Jalbuena/Vicente Delfin while concurrently representing Lumot A. Jalandoni, et al. in Civil Case No. 97-9865…. However, despite being fully aware that the interest of his client Lumot A. Jalandoni [holding an equivalent of Eighty-two (82%) percent of PRC’s shares of stocks] and the interest of PRC are one and the same, notwithstanding the fact that Lumot A. Jalandoni was still his client in Civil Case No. 97-9862, respondent opted to represent opposing clients at the same time. The corporation’s complaint for estafa (P3,183,5525.00) was filed against the Sps. Dennis and Carmen J. Jalbuena together with UCPB bank manager Vicente Delfin. Succeeding events will show that respondent instead of desisting from further violation of his [lawyer’s] oath regarding fidelity to his client, with extreme arrogance, blatantly ignored our laws on Legal Ethics, by palpably and despicably defending the Sps. Dennis and Carmen J. Jalbuena in all the cases filed against them by PRC through its duly authorized representatives, before the Public Prosecutors Office, Bacolod City (PP vs. Sps. Dennis and Carmen J. Jalbuena for False Testimony/Perjury, viol. of Art. 183 RPC under BC I.S. No. 2000-2304; viol. of Art. 363, 364, 181 and 183 RPC under BC I.S. 2000-2343, PP vs. Carmen J. Jalbuena for viol. of Art. 315 … under BC I.S. 2000-2125 and various other related criminal cases against the Sps. Dennis and Carmen Jalbuena)….
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AS SECOND CAUSE OF ACTIONxxx xxx xxx- I -xxx xxx xxxThere is no dispute that respondent was able to acquire vast resources of confidential and delicate information on the facts and circumstances of [Civil Case No. 97-9865] when Lumot A. Jalandoni was his client … which knowledge and information was acquired by virtue of lawyer-client relationship between respondent and his clients. Using the said classified information which should have been closely guarded … respondent did then and there, willfully, unlawfully, feloniously conspired and confabulated with the Sps. Dennis and Carmen J. Jalbuena in concocting the despicable and fabricated charges against his former clients denominated as PP vs. Lumot A. Jalandoni, Pamela J. Yulo, Cristina J. Lim and Leica J. Lim for viol. of Art. 172 of Revised Penal Code due to a board resolution executed by the corporation which the Sps. Jalbuena, with the assistance of herein respondent, claimed to have been made without an actual board meeting due to an alleged lack of quorum, [among other things]. Were it not for said fiduciary relation between client and lawyer, respondent will not be in a position to furnish his conspirator spouses with confidential information on Lumot A. Jalandoni/PRC, operator of Alhambra Hotel.- II -Adding insult to injury, respondent opted to deliberately withhold the entire case file including the marked exhibits of the Cabiles case for more than three (3) months after his untimely unilateral withdrawal therefrom, despite repeated demands from [his] client. On July 26, 1999, capitalizing on his knowledge of the indispensability of said documents particularly the marked exhibits, which deadline to file the formal offer of exhibits was continually impressed upon the new counsel by the court, respondent suddenly interposed an amount of five thousand (P5,000.00) pesos as consideration prior to or simultaneous to the turnover of said documents…. [On] July 29, 1999, left with no other alternative owing to the urgency of the situation, PRC issued Check No. 2077686 for P5,000.00 in payment thereof. This was duly received by respondent’s office on the same date…. Such dilatory tactics employed by respondent immensely weakened the case of Lumot A. Jalandoni eventually resulting to (sic) an adverse decision against [her]….Further demonstrating before this Honorable Court the notoriety of respondent in representing conflicting interest which extended even beyond the family controversy was his improper appearance in court in Civil Case No. 99-10660, RE: Amy Albert Que vs. Penta Resorts Corp., this time favoring the party opponent of defendant who is even outside the family circle. During the pre-trial hearing conducted on May 5, 1999, while still [holding] exclusive possession of the entire case file of his client in Civil Case No. 97-9865, respondent brazenly positioned himself beside Atty. Adoniram P. Pamplona, counsel of plaintiff [in] a suit against his client Lumot A. Jalandoni/PRC, coaching said counsel on matters [he was privy to] as counsel of said client. Facts mentioned by said counsel of the plaintiff starting from the last par. of page 25 until and including the entire first par. of page 26 were the exact words dictated by respondent. The entire incident was personally witnessed by herein complainant [who was] only an arms length away from them during the hearing…. However, the particular portion showing the said irregular acts of respondent was deliberately excluded by the court stenographer from the transcript, despite her detailed recollection and affirmation thereof to herein complainant. This prompted the new counsel of Lumot A. Jalandoni/PRC to complain to the court why Atty. Nicanor Villarosa was coaching Atty. Pamplona in such proceedings…. Said corrections were only effected after repeated demands to reflect the actual events which [transpired] on said pre-trial….5 (emphasis ours)In an addendum to the July 4, 2000 complaint, Lim also pointed to certain acts of respondent which allegedly violated the Rules of Court ― perpetration of falsehood and abuse of his influence as former public prosecutor. These supposedly affected the status of the cases that Lim filed against the clients of respondent.6 In a motion to dismiss dated October 30, 2000, respondent claimed that the complainant violated Circular No. 48-2000 because, in his verification, Lim stated: 3. That [he] prepared this instant complaint for disbarment against Atty. Nicanor V. Villarosa, read its contents, the same are all true and correct to [his] own personal knowledge and belief.7 (emphasis ours)
Section 4, Rule 7 of the Rules of Court explicitly provides that:SEC. 4. Verification. – Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit. (5a)A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records.A pleading required to be verified which contains verification based on "information and belief" or upon "knowledge, information and belief," or lacks a proper verification, shall be treated as an unsigned pleading. (As amended, A.M. 00-2-10, May 1, 2000.) (emphasis ours)While the Rules provide that an unsigned pleading produces no legal effect,8 the court may, in its discretion, allow such deficiency to be remedied if it appears that the same was due to mere inadvertence and not intended for delay.9 We find that Lim was not shown to have deliberately filed the pleading in violation of the Rules. In his comment dated December 1, 2000, respondent, reiterating his ground for the dismissal of the complaint, added: [that] complainant Humberto C. Lim, Jr. has not only violated the Rule on Civil Procedure but he was/is NOT duly authorize[d] by the Penta Resorts Corp. (PRC) nor [by] Lumot A. Jalandoni to file this complaint against [him]. Neither [was Lim] a proper party to file this complaint. This fact is an additional ground to have his case dismissed because Humberto C. Lim Jr. exceeded whatever authority was granted to him as embodied in a resolution and the Special Power of Attorney allegedly granted to him by the complainants.10 To bolster his assertion that the complaint against him was unfounded, respondent presented the following version in his defense:FACTS OF THE CASExxx xxx xxxThat Mrs. Jalandoni has two sons-in-law, namely Dennis G. Jalbuena married to her daughter, Carmen J. Jalbuena, and Humberto C. Lim Jr., the herein complainant married to her daughter, Cristina J. Lim.That Mrs. Lumot Jalandoni organized a corporation namely the Penta Resorts Corporation (PRC) where she owned almost ninety seven percent (97%). In other words, in reality, Penta Resorts Corporation is a single proprietorship belonging to Mrs. Jalandoni. That the only property of the corporation is as above-stated, the Alhambra Hotel, constructed solely through the effort of the spouses Jalbuena on that parcel of land now claimed by the Cabiles family.That sometime on the year 1997 the case above-cited (Civil Case No. 97-9865) was filed before the court against the sisters. That [he], being RETAINED counsel of the spouses Dennis and Carmen J. Jalbuena was RECOMMENDED by the spouses to the sisters to answer the complaint filed against them.II.That as counsel to the sisters, [he] filed a Motion for Extension Of Time To File Answer … and ultimately, [he] filed an Answer With Counter-Claim And Prayer For Issuance Of Writ Of Preliminary Injunction….That reading the Answer … it is clear that the defense of the sisters totally rest on public documents (the various titles issued to the land in question because of the series [of changes] in ownership) and the sisters’ and their parents’ actual occupation and possession thereof. xxx xxx xxxMr. Lim[’s] accusation against [him] in the light of the above-facts is the best evidence of Humberto C. Lim, Jr.’s penchant for exaggeration and distortion of the truth. Since the defense of the sisters to retain ownership of the land in question is based on PUBLIC documents, what delicate and confidential matters involving personal circumstances of the sisters allegedly entrusted to [him], is Mr. Humberto C. Lim, Jr. talking about in paragraphs I and II of his Complaint? What [privity] to all transactions and affairs of the corporation/hotel is he referring to? Whatever transactions the corporation may have been involved in or [may be getting involved into], is totally immaterial and irrelevant to the defense of the sisters.There was nothing personal [about the] circumstances of the sisters nor transactions of the corporation [which were] discussed. The documents being offered as evidence, [he] reiterate[s] for emphasis, are public; the presumption is that the whole world knows about them….
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That [he] [also] vehemently den[ies] another distorted allegation of Mr. Lim that [he] represented Mrs. Jalandoni [in] the entire proceedings of [the] case. [Lim] himself attested that [he] [filed] [his] Motion to Withdraw As Counsel, dated April 26, 1999 … , before the trial court, sometime on April 27, 1999. How then could [he] have represented Mrs. Jalandoni for [the] entire proceedings of the case?Further, Mr. Lim intentionally hid from this Honorable Court the important fact that [his] Motion to Withdraw was APPROVED by the trial court because of the possibility of a conflict of interest. xxx xxx xxx. 11 Respondent discredited Lim’s claim that he deliberately withheld the records of the cited civil case. He insisted that it took him just a few days, not three months, to turn over the records of the case to Lim.12 While he admitted an oversight in addressing the notice of the motion to withdraw as counsel to Mrs. Totti Anlap Gargoles instead of Mrs. Jalandoni at Hotel Alhambra, he maintained that it was the height of hypocrisy to allege that Mrs. Jalandoni was not aware of his motion to withdraw13 since Mrs. Gargoles is Mrs. Jalandoni’s sister and Hotel Alhambra is owned by PRC which, in turn, actually belongs to Mrs. Jalandoni. Respondent also argued that no prejudice was suffered by Mrs. Jalandoni because she was already represented by Atty. Lorenzo S. Alminaza from the first hearing date.14 In fact, respondent contended, it was he who was not notified of the substitution of counsels.15 As to the bill of P 5,000, respondent stated:That Mr. Lim begrudge[s] [him] for billing Mrs. Jalandoni Five Thousand (Php5,000.00) Pesos. Mr. Humberto C. Lim Jr. conveniently forgets that the net worth of the property together with its improvements, under litigation in that Cabiles, et al. vs. Gargoles et al. case, is a minimum of THIRTY MILLION (Php30,000,000.00) PESOS then, and more so now. [He] cannot find any law which prohibits a counsel from billing a client for services in proportion to the services he rendered.16 In view of these developments, respondent was adamant that:the only real question to be answered in this complaint is why Mr. Lim so consistently [determined] to immerse the Jalandoni family [in] a series of criminal and civil suits and to block all attempts to reconcile the family by prolonging litigations, complaints and filing of new ones in spite of the RESOLUTION of the corporation and the UNDERTAKING of the members….17 On June 18, 2001, the Court resolved to refer the complaint to the Integrated Bar of the Philippines (IBP) for investigation. Commissioner Lydia A. Navarro made the following report and recommendation:xxx xxx xxxAfter going over the [pieces of evidence] submitted by the parties[,] the undersigned noted that from the onset, PRC had a case wherein respondent was its counsel. Later on, complainant had a case against spouses Jalbuena where the parties were related to each other and the latter spouses were represented by the respondent as their retained counsel; after respondent had allegedly withdrawn as counsel for the complainant in Civil Case No. 97-9865.Being the husband of one of the complainants which respondent himself averred in his answer, it is incumbent upon Humberto Lim Jr. to represent his wife as one of the representatives of PRC and Alhambra Hotel in the administrative complaint to protect not only her interest but that of the [family’s].From the facts obtaining, it is evident that complainant had a lawyer-client relationship with the respondent before the latter [was] retained as counsel by the Spouses Jalbuena when the latter were sued by complainant’s representative.We cannot disregard the fact that on this situation for some reason or another there existed some confidentiality and trust between complainants and respondent to ensure the successful defense of their cases.Respondent for having appeared as counsel for the Spouses Jalbuena when charged by respondent’s former client Jalandoni of PRC and Alhambra Hotel, represented conflicting interests … in violation of the Canon of Professional Responsibility.As such therefore, the Undersigned has no alternative but to respectfully recommend the suspension of the respondent from the practice of law for a period of six (6) months from receipt hereof.RESPECTFULLY SUBMITTED.Pasig City, June 20, 2002.18
The IBP Board of Governors (Board), however, reversed the recommendation of the investigating commissioner and resolved to dismiss the case on August 3, 2002.19 Lumot A. Jalandoni filed a motion for reconsideration (MR) on October 18, 2002 but the Board denied the MR since it no longer had jurisdiction to consider and resolve a matter already endorsed to this Court.20 Before delving into the core issues of this case, we need to address some preliminary matters. Respondent argues that the alleged resolution of PRC and the special power of attorney given by Lumot A. Jalandoni to Humberto did not contemplate the filing of an administrative complaint.21 Citing the Rules of Court, respondent said that:[s]uch complaints are personal in nature and therefore, the filing of the same, cannot be delegated by the alleged aggrieved party to any third person unless expressly authorized by law.We must note, however, the following:SECTION 1. How instituted. – Proceedings for disbarment, suspension or discipline of attorneys may be taken by the Supreme Court motu propio, or by the Integrated Bar of the Philippines (IBP) upon the verified complaint of any person. The complaint shall state clearly and concisely the facts complained of and shall be supported by affidavits or persons having personal knowledge of the facts therein alleged and/or by such documents a may substantiate said facts.The IBP Board of Governors may, motu propio or upon referral by the Supreme Court or by a Chapter Board of Officers, or at the instance of any person, initiate and prosecute proper charges against any erring attorneys….22
(emphasis ours)Complaints against members of the Bar are pursued to preserve the integrity of the legal profession, not for private vendetta. Thus, whoever has such personal knowledge of facts constituting a cause of action against erring lawyers may file a verified complaint with the Court or the IBP.23 Corollary to the public interest in these proceedings is the following rule:SEC. 11. Defects. – No defect in a complaint, notice, answer, or in the proceeding or the Investigator’s Report shall be considered as substantial unless the Board of Governors, upon considering the whole record, finds that such defect has resulted or may result in a miscarriage of justice, in which event the Board shall take such remedial action as the circumstances may warrant, including invalidation of the entire proceedings.24 (emphasis ours)Respondent failed to substantiate his allegation that Lim’s complaint was defective in form and substance, and that entertaining it would result in a miscarriage of justice. For the same reason, we will no longer put in issue the filing at the onset of a motion to dismiss by respondent instead of an answer or comment.25 The core issues before us now are:1. whether there existed a conflict of interest in the cases represented and handled by respondent, and 2. whether respondent properly withdrew his services as counsel of record in Civil Case No. 97-9865.Conflict Of InterestPetitioners alleged that as an offshoot of representing conflicting interests, breach of attorney-client confidentiality and deliberate withholding of records were committed by respondent. To effectively unravel the alleged conflict of interest, we must look into the cases involved. In Civil Case No. 97-9865, respondent represented Lumot A. Jalandoni and Totti Anlap Gargoles. This was a case for the recovery of possession of property involving Hotel Alhambra, a hotel owned by PRC. In BC I.S. No. 99-2192, Lim v. Vicente Delfin, Spouses Dennis and Carmen Jalbuena, respondent was counsel for Delfin and the spouses Jalbuena. In this case, plaintiff Cristina Lim sued the spouses Jalbuena and Delfin on the basis of two checks issued by PRC for the construction of Hotel Alhambra.26 The corporate records allegedly reflected that the contractor, AAQ Sales and Construction (AAQSC), was already paid in full yet Amy Albert Que of AAQSC still filed a collection case against PRC for an unpaid balance.27 In her complaint-affidavit, Cristina averred: 11. That it was respondent Carmen J. Jalbuena, who took advantage of [her] signatures in blank in DBP Check Nos. 0865590 and 0865591, and who filled up the spaces of the payee, date and amount without the knowledge
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and consent of any officer of the corporation and [herself], after which she caused the delivery of the same checks to her husband Dennis Jalbuena, who encashed without [their] knowledge and consent, and received the proceeds of the same checks… (as evidenced by his signature in receipt of payment on the dorsal side of the said checks) with the indispensable participation and cooperation of respondent Vicente B. Delfin, the Asst. Vice President and Branch Head of UCPB….28 Notably, in his comment, respondent stated:There was a possibility of conflict of interest because by this time, or one month before [he] filed [his] Motion to Withdraw, Mrs. Jalandoni /Penta Resorts Corporation, Mr. Lim, through his wife, Cristina J. Lim, by another counsel, Atty. Lorenzo S. Alminaza, filed a criminal complaint against the spouses Dennis and Carmen J. Jalbuena on March 26, 1999… under BC-I.S. Case No. 99-2192.29 Similarly, in BC I.S. Nos. 00-1370, 2000-2304, 2000-2343, 00-2125, 00-2230, 00-880, respondent positioned himself against PRC’s interests. And, in Civil Case No. 99-10660, a collection case against PRC, Atty. Alminaza of PRC was alarmed by the appearance of respondent at the table in court for AAQSC’s counsel.30 Canon 15 of the Code of Professional Responsibility (CPR) highlights the need for candor, fairness and loyalty in all the dealings of lawyers with their clients. Rule 15.03 of the CPR aptly provides:Rule 15.03 – A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts.It is only upon strict compliance with the condition of full disclosure of facts that a lawyer may appear against his client; otherwise, his representation of conflicting interests is reprehensible.31 Conflict of interest may be determined in this manner:There is representation of conflicting interests if the acceptance of the new retainer will require the attorney to do anything which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation, to use against his first client any knowledge acquired through their connection.32 (emphasis ours)The rule on conflict of interests covers not only cases in which confidential communications have been confided but also those in which no confidence has been bestowed or will be used.33 Another test of the inconsistency of interests is whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double-dealing in the performance thereof, and also whether he will be called upon in his new relation to use against his first client any knowledge acquire in the previous employment. The first part of the rule refers to cases in which the opposing parties are present clients either in the same action or in a totally unrelated case; the second part pertains to those in which the adverse party against whom the attorney appears is his former client in a matter which is related, directly or indirectly, to the present controversy.34 (emphasis ours)The rule prohibits a lawyer from representing new clients whose interests oppose those of a former client in any manner, whether or not they are parties in the same action or in totally unrelated cases. The cases here directly or indirectly involved the parties’ connection to PRC, even if neither PRC nor Lumot A. Jalandoni was specifically named as party-litigant in some of the cases mentioned. An attorney owes to his client undivided allegiance. After being retained and receiving the confidences of the client, he cannot, without the free and intelligent consent of his client, act both for his client and for one whose interest is adverse to, or conflicting with that of his client in the same general matter…. The prohibition stands even if the adverse interest is very slight; neither is it material that the intention and motive of the attorney may have been honest.35 (emphasis ours)The representation by a lawyer of conflicting interests, in the absence of the written consent of all parties concerned after a full disclosure of the facts, constitutes professional misconduct which subjects the lawyer to disciplinary action.36
Even respondent’s alleged effort to settle the existing controversy among the family members37 was improper because the written consent of all concerned was still required.38 A lawyer who acts as such in settling a dispute cannot represent any of the parties to it.39 Withdrawal As Counsel In Civil Case No. 97-9865The next bone of contention was the propriety of respondent’s withdrawal as counsel for Lumot A. Jalandoni in Civil Case No. 97-9865 to fulfill an alleged retainership agreement with the spouses Jalbuena in a suit by PRC, through Cristina Lim, against the Jalbuenas and Delfin (BC I.S. No. 99-2192). In his December 1, 2000 comment, respondent stated that it was he who was not notified of the hiring of Atty. Alminaza as the new counsel in that case and that he withdrew from the case with the knowledge of Lumot A. Jalandoni and with leave of court. The rule on termination of attorney-client relations may be summarized as follows:The relation of attorney and client may be terminated by the client, by the lawyer or by the court, or by reason of circumstances beyond the control of the client or the lawyer. The termination of the attorney-client relationship entails certain duties on the part of the client and his lawyer.40 Accordingly, it has been held that the right of an attorney to withdraw or terminate the relation other than for sufficient cause is considerably restricted. Canon 22 of the CPR reads:Canon 22 – A lawyer shall withdraw his services only for good cause and upon notice appropriate in the circumstances.An attorney may only retire from a case either by written consent of his client or by permission of the court after due notice and hearing, in which event the attorney should see to it that the name of the new lawyer is recorded in the case.41 A lawyer who desires to retire from an action without the written consent of his client must file a petition for withdrawal in court.42 He must serve a copy of his petition upon his client and the adverse party at least three days before the date set for hearing, otherwise the court may treat the application as a "mere scrap of paper."43 Respondent made no such move. He admitted that he withdrew as counsel on April 26, 1999, which withdrawal was supposedly approved by the court on April 28, 1999. The conformity of Mrs. Jalandoni was only presumed by Atty. Villarosa because of the appearance of Atty. Alminaza in court, supposedly in his place.[A client] may discharge his attorney at any time with or without cause and thereafter employ another lawyer who may then enter his appearance. Thus, it has been held that a client is free to change his counsel in a pending case and thereafter retain another lawyer to represent him. That manner of changing a lawyer does not need the consent of the lawyer to be dismissed. Nor does it require approval of the court.44 The appearance of Atty. Alminaza in fact was not even to substitute for respondent but to act as additional counsel.45 Mrs. Jalandoni’s conformity to having an additional lawyer did not necessarily mean conformity to respondent’s desire to withdraw as counsel. Respondent’s speculations on the professional relationship of Atty. Alminaza and Mrs. Jalandoni find no support in the records of this case.Respondent should not have presumed that his motion to withdraw as counsel46 would be granted by the court. Yet, he stopped appearing as Mrs. Jalandoni’s counsel beginning April 28, 1999, the first hearing date. No order from the court was shown to have actually granted his motion for withdrawal. Only an order dated June 4, 1999 had a semblance of granting his motion:When this case was called for hearing Atty. Lorenzo Alminaza appeared for the defendants considering that Atty. Nicanor Villarosa has already withdrawn his appearance in this case which the Court considered it to be approved as it bears the conformity of the defendants.47 (emphasis ours)That Mrs. Jalandoni continued with Atty. Alminaza’s professional engagement on her behalf despite respondent’s withdrawal did not absolve the latter of the consequences of his unprofessional conduct, specially in view of the conflicting interests already discussed. Respondent himself stated that his withdrawal from Civil Case No. 97-9865 was due to the "possibility of a conflict of interest."48 Be that as it may, the records do not support the claim that respondent improperly collected P5,000 from petitioner. Undoubtedly, respondent provided professional services to Lumot A. Jalandoni. Furthermore, there is no evidence that the documents belonging to Mrs. Jalandoni were deliberately withheld. The right of an attorney to retain possession of a client’s documents, money or other property which may have lawfully come into his
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possession in his professional capacity, until his lawful fees and disbursements have been fully paid, is well-established.49 Finally, we express our utter dismay with Lim’s apparent use of his wife’s community tax certificate number in his complaint for disbarment against respondent.50 This is not, however, the forum to discuss this lapse. WHEREFORE, in view of the foregoing, respondent Atty. Nicanor V. Villarosa is hereby found GUILTY of violating Canon 15 and Canon 22 of the Code of Professional Responsibility and is SUSPENDED from the practice of law for one (1) year, effective upon receipt of this decision, with a STERN WARNING that a repetition of the same or similar acts will be dealt with more severely.Let a copy of this resolution be entered into the records of respondent and furnished to the Office of the Clerk of Court, the Office of the Bar Confidant, the Integrated Bar of the Philippines, and all courts in the Philippines, for their information and guidance.SO ORDERED.A.C. No. 5108 May 26, 2005ROSA F. MERCADO, complainant, vs.ATTY. JULITO D. VITRIOLO, respondent.D E C I S I O NPUNO, J.:Rosa F. Mercado filed the instant administrative complaint against Atty. Julito D. Vitriolo, seeking his disbarment from the practice of law. The complainant alleged that respondent maliciously instituted a criminal case for falsification of public document against her, a former client, based on confidential information gained from their attorney-client relationship.Let us first hearken to the facts.Complainant is a Senior Education Program Specialist of the Standards Development Division, Office of Programs and Standards while respondent is a Deputy Executive Director IV of the Commission on Higher Education (CHED).1
Complainant's husband filed Civil Case No. 40537 entitled "Ruben G. Mercado v. Rosa C. Francisco," for annulment of their marriage with the Regional Trial Court (RTC) of Pasig City. This annulment case had been dismissed by the trial court, and the dismissal became final and executory on July 15, 1992.2
In August 1992, Atty. Anastacio P. de Leon, counsel of complainant, died. On February 7, 1994, respondent entered his appearance before the trial court as collaborating counsel for complainant.3
On March 16, 1994, respondent filed his Notice of Substitution of Counsel,4 informing the RTC of Pasig City that he has been appointed as counsel for the complainant, in substitution of Atty. de Leon.It also appears that on April 13, 1999, respondent filed a criminal action against complainant before the Office of the City Prosecutor, Pasig City, entitled "Atty. Julito Vitriolo, et al. v. Rose Dela Cruz F. Mercado," and docketed as I.S. No. PSG 99-9823, for violation of Articles 171 and 172 (falsification of public document) of the Revised Penal Code.5 Respondent alleged that complainant made false entries in the Certificates of Live Birth of her children, Angelica and Katelyn Anne. More specifically, complainant allegedly indicated in said Certificates of Live Birth that she is married to a certain Ferdinand Fernandez, and that their marriage was solemnized on April 11, 1979, when in truth, she is legally married to Ruben G. Mercado and their marriage took place on April 11, 1978.Complainant denied the accusations of respondent against her. She denied using any other name than "Rosa F. Mercado." She also insisted that she has gotten married only once, on April 11, 1978, to Ruben G. Mercado.In addition, complainant Mercado cited other charges against respondent that are pending before or decided upon by other tribunals – (1) libel suit before the Office of the City Prosecutor, Pasig City;6 (2) administrative case for dishonesty, grave misconduct, conduct prejudicial to the best interest of the service, pursuit of private business, vocation or profession without the permission required by Civil Service rules and regulations, and violations of the "Anti-Graft and Corrupt Practices Act," before the then Presidential Commission Against Graft and Corruption;7 (3) complaint for dishonesty, grave misconduct, and conduct prejudicial to the best interest of the service before the Office of the Ombudsman, where he was found guilty of misconduct and meted out the
penalty of one month suspension without pay;8 and, (4) the Information for violation of Section 7(b)(2) of Republic Act No. 6713, as amended, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees before the Sandiganbayan.9
Complainant Mercado alleged that said criminal complaint for falsification of public document (I.S. No. PSG 99-9823) disclosed confidential facts and information relating to the civil case for annulment, then handled by respondent Vitriolo as her counsel. This prompted complainant Mercado to bring this action against respondent. She claims that, in filing the criminal case for falsification, respondent is guilty of breaching their privileged and confidential lawyer-client relationship, and should be disbarred.Respondent filed his Comment/Motion to Dismiss on November 3, 1999 where he alleged that the complaint for disbarment was all hearsay, misleading and irrelevant because all the allegations leveled against him are subject of separate fact-finding bodies. Respondent claimed that the pending cases against him are not grounds for disbarment, and that he is presumed to be innocent until proven otherwise.10 He also states that the decision of the Ombudsman finding him guilty of misconduct and imposing upon him the penalty of suspension for one month without pay is on appeal with the Court of Appeals. He adds that he was found guilty, only of simple misconduct, which he committed in good faith.11
In addition, respondent maintains that his filing of the criminal complaint for falsification of public documents against complainant does not violate the rule on privileged communication between attorney and client because the bases of the falsification case are two certificates of live birth which are public documents and in no way connected with the confidence taken during the engagement of respondent as counsel. According to respondent, the complainant confided to him as then counsel only matters of facts relating to the annulment case. Nothing was said about the alleged falsification of the entries in the birth certificates of her two daughters. The birth certificates are filed in the Records Division of CHED and are accessible to anyone.12
In a Resolution dated February 9, 2000, this Court referred the administrative case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.13
The IBP Commission on Bar Discipline set two dates for hearing but complainant failed to appear in both. Investigating Commissioner Rosalina R. Datiles thus granted respondent's motion to file his memorandum, and the case was submitted for resolution based on the pleadings submitted by the parties.14
On June 21, 2003, the IBP Board of Governors approved the report of investigating commissioner Datiles, finding the respondent guilty of violating the rule on privileged communication between attorney and client, and recommending his suspension from the practice of law for one (1) year.On August 6, 2003, complainant, upon receiving a copy of the IBP report and recommendation, wrote Chief Justice Hilario Davide, Jr., a letter of desistance. She stated that after the passage of so many years, she has now found forgiveness for those who have wronged her.At the outset, we stress that we shall not inquire into the merits of the various criminal and administrative cases filed against respondent. It is the duty of the tribunals where these cases are pending to determine the guilt or innocence of the respondent.We also emphasize that the Court is not bound by any withdrawal of the complaint or desistance by the complainant. The letter of complainant to the Chief Justice imparting forgiveness upon respondent is inconsequential in disbarment proceedings.We now resolve whether respondent violated the rule on privileged communication between attorney and client when he filed a criminal case for falsification of public document against his former client.A brief discussion of the nature of the relationship between attorney and client and the rule on attorney-client privilege that is designed to protect such relation is in order.In engaging the services of an attorney, the client reposes on him special powers of trust and confidence. Their relationship is strictly personal and highly confidential and fiduciary. The relation is of such delicate, exacting and confidential nature that is required by necessity and public interest.15 Only by such confidentiality and protection will a person be encouraged to repose his confidence in an attorney. The hypothesis is that abstinence from seeking legal advice in a good cause is an evil which is fatal to the administration of justice.16 Thus, the preservation and protection of that relation will encourage a client to entrust his legal problems to an attorney,
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which is of paramount importance to the administration of justice.17 One rule adopted to serve this purpose is the attorney-client privilege: an attorney is to keep inviolate his client's secrets or confidence and not to abuse them.18 Thus, the duty of a lawyer to preserve his client's secrets and confidence outlasts the termination of the attorney-client relationship,19 and continues even after the client's death.20 It is the glory of the legal profession that its fidelity to its client can be depended on, and that a man may safely go to a lawyer and converse with him upon his rights or supposed rights in any litigation with absolute assurance that the lawyer's tongue is tied from ever disclosing it.21 With full disclosure of the facts of the case by the client to his attorney, adequate legal representation will result in the ascertainment and enforcement of rights or the prosecution or defense of the client's cause.Now, we go to the rule on attorney-client privilege. Dean Wigmore cites the factors essential to establish the existence of the privilege, viz:(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived.22
In fine, the factors are as follows:(1) There exists an attorney-client relationship, or a prospective attorney-client relationship, and it is by reason of this relationship that the client made the communication.Matters disclosed by a prospective client to a lawyer are protected by the rule on privileged communication even if the prospective client does not thereafter retain the lawyer or the latter declines the employment.23 The reason for this is to make the prospective client free to discuss whatever he wishes with the lawyer without fear that what he tells the lawyer will be divulged or used against him, and for the lawyer to be equally free to obtain information from the prospective client.24
On the other hand, a communication from a (prospective) client to a lawyer for some purpose other than on account of the (prospective) attorney-client relation is not privileged. Instructive is the case of Pfleider v. Palanca,25 where the client and his wife leased to their attorney a 1,328-hectare agricultural land for a period of ten years. In their contract, the parties agreed, among others, that a specified portion of the lease rentals would be paid to the client-lessors, and the remainder would be delivered by counsel-lessee to client's listed creditors. The client alleged that the list of creditors which he had "confidentially" supplied counsel for the purpose of carrying out the terms of payment contained in the lease contract was disclosed by counsel, in violation of their lawyer-client relation, to parties whose interests are adverse to those of the client. As the client himself, however, states, in the execution of the terms of the aforesaid lease contract between the parties, he furnished counsel with the "confidential" list of his creditors. We ruled that this indicates that client delivered the list of his creditors to counsel not because of the professional relation then existing between them, but on account of the lease agreement. We then held that a violation of the confidence that accompanied the delivery of that list would partake more of a private and civil wrong than of a breach of the fidelity owing from a lawyer to his client.(2) The client made the communication in confidence.The mere relation of attorney and client does not raise a presumption of confidentiality.26 The client must intend the communication to be confidential.27
A confidential communication refers to information transmitted by voluntary act of disclosure between attorney and client in confidence and by means which, so far as the client is aware, discloses the information to no third person other than one reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it was given.28
Our jurisprudence on the matter rests on quiescent ground. Thus, a compromise agreement prepared by a lawyer pursuant to the instruction of his client and delivered to the opposing party,29 an offer and counter-offer for settlement,30 or a document given by a client to his counsel not in his professional capacity,31 are not privileged communications, the element of confidentiality not being present.32
(3) The legal advice must be sought from the attorney in his professional capacity.33
The communication made by a client to his attorney must not be intended for mere information, but for the purpose of seeking legal advice from his attorney as to his rights or obligations. The communication must have been transmitted by a client to his attorney for the purpose of seeking legal advice.34
If the client seeks an accounting service,35 or business or personal assistance,36 and not legal advice, the privilege does not attach to a communication disclosed for such purpose.Applying all these rules to the case at bar, we hold that the evidence on record fails to substantiate complainant's allegations. We note that complainant did not even specify the alleged communication in confidence disclosed by respondent. All her claims were couched in general terms and lacked specificity. She contends that respondent violated the rule on privileged communication when he instituted a criminal action against her for falsification of public documents because the criminal complaint disclosed facts relating to the civil case for annulment then handled by respondent. She did not, however, spell out these facts which will determine the merit of her complaint. The Court cannot be involved in a guessing game as to the existence of facts which the complainant must prove.Indeed, complainant failed to attend the hearings at the IBP. Without any testimony from the complainant as to the specific confidential information allegedly divulged by respondent without her consent, it is difficult, if not impossible to determine if there was any violation of the rule on privileged communication. Such confidential information is a crucial link in establishing a breach of the rule on privileged communication between attorney and client. It is not enough to merely assert the attorney-client privilege.37 The burden of proving that the privilege applies is placed upon the party asserting the privilege.38
IN VIEW WHEREOF, the complaint against respondent Atty. Julito D. Vitriolo is hereby DISMISSED for lack of merit.SO ORDEREDTHIRD DIVISIONAdm.Case No. 4218 July 20, 2000ROMEO H. SIBULO, complainant, vs.ATTY. STANLEY R. CABRERA, respondent.R E S O L U T I O NPURISIMA, J.:At bar is an administrative complaint against the respondent, Atty. Stanley Cabrera, for unethical practice/conduct.The facts that matter are as follows:In a case, entitled "Brenda Sucaldito1 versus Reynaldo Marcelo, et al.", docketed as Civil Case No. 90-55209 before Branch 53 of the Regional Trial Court of Manila, defendant Reynaldo Marcelo retained the services of the herein respondent as his lawyer. Subsequently, however, the respondent also entered his appearance as counsel for plaintiff Brenda Sucaldito in the same case, without withdrawing his appearance as counsel for defendant Reynaldo Marcelo. In view of such development Atty. Reyes Geromo, former counsel of Brenda Sucaldito, filed with the Manila Regional Trial Court a motion to disqualify the respondent on the ground of unethical conduct.2Finding merit in the said motion, the trial court ordered the disqualification of respondent in the case.3
Complainant Romeo Sibulo, an intervenor in the aforementioned Civil Case No. 90-55209, brought the present administrative complaint against respondent, praying for the latter's removal from or suspension in the practice of law, on the ground of unethical practice/conduct.In his Answer4 to the Complaint, respondent denied the wrongdoing alluded to him; theorizing that "xxx I merely accepted a case from a plaintiff and at the same time I was the counsel as intervenor of one of the defendants xxx."This case was referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.5
Acting thereupon on April 7, 2000, the IBP came out with its Resolution No. XIV-000-163, which reads:"RESOLUTION NO. XIV-000-163
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Adm. Case No. 4218Romeo E. Sibulo vs. Atty. Stanly CabreraRESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution/Decision as annex 'A'; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, said recommendation is with modification that Respondent beCENSURED and FINED One Thousand Pesos (P1,000.00)." 6
The IBP Report,7 in part, found:"The respondent's answer is quite revealing. While he denies any unethical conduct on his part, respondent seeks to justify what he did and of which he is charged by tongue-in-cheek declaring that he did no wrong 'considering that I merely accepted a case from a plaintiff and at the same time I was the counsel as intervenor of one of the defendants.'Nothing further need be said. For all his disclaimers and the affidavits of two (2) witnesses in his favor, it is beyond cavil that Atty. Cabrera has violated Canon 15 and the subsequent Rules of Code of Professional Responsibility. The complainant's motives are not of paramount interest. To our mind, Atty. Cabrera has lain himself open to the specifications against him. Remarkably, he admits the same by his lame explanation.From all the foregoing, we recommend that Atty. Stanley R. Cabrera be CENSURED by the Honorable Supreme Court and ordered to fine a pay (sic) in such amount as the Honorable Court may see fit."Respondent has all but admitted the wrongdoing complained of, when he stated in his Answer that he "merely accepted a case from a plaintiff and at the same time I [he] was the counsel as intervenor of one of the defendants." Such a revelation is a categorical admission that he (respondent) represented two conflicting interests, which representations or appearances are prohibited by Rule 15.03 of Canon 15 of the Code of Professional Responsibility, which provides:"CANON 15 - A LAWYER SHALL OBSERVE CANDOR, FAIRNESS, AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENT.x x x x x x x x xRule 15.03 - A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts."Respondent was bound to faithfully represent his client in all aspects of subject civil case. When he agreed to represent the defendant and later on, also the plaintiff in the same case, he could no longer serve either of his said clients faithfully, as his duty to the plaintiff did necessarily conflict with his duty to the defendant. The relation of attorney and client is based on trust, so that double dealing which could sometimes lead to treachery, should be avoided. 8
Considering the attendant facts and circumstances, the Court is of the sense that the amount of fine recommended below is not commensurate with the wrong done by the respondent.WHEREFORE, respondent is found GUILTYof unethical conduct for representing two conflicting interests and is hereby FINED in the amount of TEN THOUSAND (P10,000.00) Pesos, with a warning that a repetition of the same or similar acts will be dealt with more severely.SO ORDERED.FIRST DIVISIONAdministrative Case No. 4943 January 26, 2001DIANA D. DE GUZMAN, complainant, vs.ATTY. LOURDES I. DE DIOS, respondent.PARDO, J.:The case before the Court is a complaint1 for disbarment against Atty. Lourdes I. De Dios on the ground of violation of Canon 15, Rule 15.03 of the Code of Professional Responsibility, for representing conflicting interests, and of Article 1491 Civil Code, for acquiring property in litigation.
In 1995, complainant engaged the services of respondent as counsel in order to form a corporation, which would engage in hotel and restaurant business in Olongapo City.1âwphi1.nêtOn January 10, 1996, with the assistance of Atty. De Dios, complainant registered Suzuki Beach Hotel, Inc. (SBHI) with the Securities and Exchange Commission.2 Complainant paid respondent a monthly retainer fee of P 5,000.00.On December 15, 1997, the corporation required complainant to pay her unpaid subscribed shares of stock amounting to two million two hundred and thirty five thousand pesos (P2,235,000.00) or 22,350 shares, on or before December 30, 1997.On January 29, 1998,3 complainant received notice of the public auction sale of her delinquent shares and a copy of a board resolution dated January 6, 1998 authorizing such sale.4 Complainant soon learned that her shares had been acquired by Ramon del Rosario, one of the incorporators of SBHI. The sale ousted complainant from the corporation completely. While respondent rose to be president of the corporation, complainant lost all her life's savings invested therein.Complainant alleged that she relied on the advice of Atty. de Dios and believed that as the majority stockholder, Atty. de Dios would help her with the management of the corporation.Complainant pointed out that respondent appeared as her counsel and signed pleadings in a case where complainant was one of the parties.5 Respondent, however, explained that she only appeared because the property involved belonged to SBHI. Respondent alleged that complainant misunderstood the role of respondent as legal counsel of Suzuki Beach Hotel, Inc. Respondent manifested that her appearance as counsel for complainant Diana de Guzman was to protect the rights and interest of SBHI since the latter was the real owner of the land in controversy.Respondent further said that the land on which the resort was established belonged to the Japanese incorporators, not to complainant. The relationship of the complainant and the Japanese investors turned sour because complainant misappropriated the funds and property of the corporation. To save the corporation from bankruptcy, respondent advised all concerned stockholders that it was proper to call for the payment of unpaid subscriptions and subsequent sale of the delinquent shares. These led to the auction of the unpaid shares of complainant and hence, the ouster of complainant from the corporation.Meantime, Mr. Del Rosario transferred one hundred (100) shares to respondent in payment of legal services as evidenced by a Deed of Waiver and Transfer of Corporate Shares of Stock.On October 22, 1999, the Integrated Bar of the Philippines issued a resolution6 finding that the acts of respondent were not motivated by ill will as she acted in the best interest of her client, SBHI. The IBP found that complainant failed to present convincing proof of her attorney-client relationship with respondent other than the pleadings respondent filed in the trial court where complainant was one of the parties.We disagree.We find merit in the complaint. There are certain facts presented before us that created doubt on the propriety of the declaration of delinquent shares and subsequent sale of complainant's entire subscription. Complainant subscribed to 29,800 shares equivalent to two million nine hundred and eighty thousand pesos (P2,980,000.00). She was the majority stockholder. Out of the subscribed shares, she paid up seven hundred forty-five thousand pesos (P745,000.00) during the stage of incorporation.How complainant got ousted from the corporation considering the amount she had invested in it is beyond us. Granting that the sale of her delinquent shares was valid, what happened to her original shares? This, at least, should have been explained.Respondent claims that there was no attorney-client relationship between her and complainant. The claim has no merit. It was complainant who retained respondent to form a corporation. She appeared as counsel in behalf of complainant.There was evidence of collusion between the board of directors and respondent. Indeed, the board of directors now included respondent as the president, Ramon del Rosario as secretary, Hikoi Suzuki as chairman, Agnes Rodriguez as treasurer and Takayuki Sato as director.7 The present situation shows a clear case of conflict of interest of the respondent.
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Lawyers must conduct themselves, especially in their dealings with their clients and the public at large, with honesty and integrity in a manner beyond reproach.8
We said:"To say that lawyers must at all times uphold and respect the law is to state the obvious, but such statement can never be overemphasized. Considering that, 'of all classes and professions, [lawyers are] most sacredly bound to uphold the law,' it is imperative that they live by the law. Accordingly, lawyers who violate their oath and engage in deceitful conduct have no place in the legal profession."9
Clearly, respondent violated the prohibition against representing conflicting interests and engaging in unlawful, dishonest, immoral or deceitful conduct.10
As a lawyer, respondent is bound by her oath to do no falsehood or consent to its commission and to conduct herself as a lawyer according to the best of her knowledge and discretion. The lawyer's oath is a source of obligations and violation thereof is a ground for suspension, disbarment,11 or other disciplinary action.12 The acts of respondent Atty. de Dios are clearly in violation of her solemn oath as a lawyer that this Court will not tolerate.WHEREFORE, the Court finds respondent. Atty. Lourdes I. de Dios remiss in her sworn duty to her client, and to the bar. The Court hereby SUSPENDS her from the practice of law for six (6) months, with warning that a repetition of the charges will be dealt with more severely.Let a copy of this decision be entered in the personal records of respondent as an attorney and as a member of the Bar, and furnish the Bar Confidant, the Integrated Bar of the Philippines, and the Court Administrator for circulation to all courts in the country.1âwphi1.nêtSO ORDERED.
Administrative Case No. 4943 January 26, 2001DIANA D. DE GUZMAN, complainant, vs.ATTY. LOURDES I. DE DIOS, respondent.PARDO, J.:The case before the Court is a complaint1 for disbarment against Atty. Lourdes I. De Dios on the ground of violation of Canon 15, Rule 15.03 of the Code of Professional Responsibility, for representing conflicting interests, and of Article 1491 Civil Code, for acquiring property in litigation.In 1995, complainant engaged the services of respondent as counsel in order to form a corporation, which would engage in hotel and restaurant business in Olongapo City.1âwphi1.nêtOn January 10, 1996, with the assistance of Atty. De Dios, complainant registered Suzuki Beach Hotel, Inc. (SBHI) with the Securities and Exchange Commission.2 Complainant paid respondent a monthly retainer fee of P 5,000.00.On December 15, 1997, the corporation required complainant to pay her unpaid subscribed shares of stock amounting to two million two hundred and thirty five thousand pesos (P2,235,000.00) or 22,350 shares, on or before December 30, 1997.On January 29, 1998,3 complainant received notice of the public auction sale of her delinquent shares and a copy of a board resolution dated January 6, 1998 authorizing such sale.4 Complainant soon learned that her shares had been acquired by Ramon del Rosario, one of the incorporators of SBHI. The sale ousted complainant from the corporation completely. While respondent rose to be president of the corporation, complainant lost all her life's savings invested therein.Complainant alleged that she relied on the advice of Atty. de Dios and believed that as the majority stockholder, Atty. de Dios would help her with the management of the corporation.Complainant pointed out that respondent appeared as her counsel and signed pleadings in a case where complainant was one of the parties.5 Respondent, however, explained that she only appeared because the property involved belonged to SBHI. Respondent alleged that complainant misunderstood the role of respondent as legal counsel of Suzuki Beach Hotel, Inc. Respondent manifested that her appearance as counsel for
complainant Diana de Guzman was to protect the rights and interest of SBHI since the latter was the real owner of the land in controversy.Respondent further said that the land on which the resort was established belonged to the Japanese incorporators, not to complainant. The relationship of the complainant and the Japanese investors turned sour because complainant misappropriated the funds and property of the corporation. To save the corporation from bankruptcy, respondent advised all concerned stockholders that it was proper to call for the payment of unpaid subscriptions and subsequent sale of the delinquent shares. These led to the auction of the unpaid shares of complainant and hence, the ouster of complainant from the corporation.Meantime, Mr. Del Rosario transferred one hundred (100) shares to respondent in payment of legal services as evidenced by a Deed of Waiver and Transfer of Corporate Shares of Stock.On October 22, 1999, the Integrated Bar of the Philippines issued a resolution6 finding that the acts of respondent were not motivated by ill will as she acted in the best interest of her client, SBHI. The IBP found that complainant failed to present convincing proof of her attorney-client relationship with respondent other than the pleadings respondent filed in the trial court where complainant was one of the parties.We disagree.We find merit in the complaint. There are certain facts presented before us that created doubt on the propriety of the declaration of delinquent shares and subsequent sale of complainant's entire subscription. Complainant subscribed to 29,800 shares equivalent to two million nine hundred and eighty thousand pesos (P2,980,000.00). She was the majority stockholder. Out of the subscribed shares, she paid up seven hundred forty-five thousand pesos (P745,000.00) during the stage of incorporation.How complainant got ousted from the corporation considering the amount she had invested in it is beyond us. Granting that the sale of her delinquent shares was valid, what happened to her original shares? This, at least, should have been explained.Respondent claims that there was no attorney-client relationship between her and complainant. The claim has no merit. It was complainant who retained respondent to form a corporation. She appeared as counsel in behalf of complainant.There was evidence of collusion between the board of directors and respondent. Indeed, the board of directors now included respondent as the president, Ramon del Rosario as secretary, Hikoi Suzuki as chairman, Agnes Rodriguez as treasurer and Takayuki Sato as director.7 The present situation shows a clear case of conflict of interest of the respondent.Lawyers must conduct themselves, especially in their dealings with their clients and the public at large, with honesty and integrity in a manner beyond reproach.8
We said:"To say that lawyers must at all times uphold and respect the law is to state the obvious, but such statement can never be overemphasized. Considering that, 'of all classes and professions, [lawyers are] most sacredly bound to uphold the law,' it is imperative that they live by the law. Accordingly, lawyers who violate their oath and engage in deceitful conduct have no place in the legal profession."9
Clearly, respondent violated the prohibition against representing conflicting interests and engaging in unlawful, dishonest, immoral or deceitful conduct.10
As a lawyer, respondent is bound by her oath to do no falsehood or consent to its commission and to conduct herself as a lawyer according to the best of her knowledge and discretion. The lawyer's oath is a source of obligations and violation thereof is a ground for suspension, disbarment,11 or other disciplinary action.12 The acts of respondent Atty. de Dios are clearly in violation of her solemn oath as a lawyer that this Court will not tolerate.WHEREFORE, the Court finds respondent. Atty. Lourdes I. de Dios remiss in her sworn duty to her client, and to the bar. The Court hereby SUSPENDS her from the practice of law for six (6) months, with warning that a repetition of the charges will be dealt with more severely.
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Let a copy of this decision be entered in the personal records of respondent as an attorney and as a member of the Bar, and furnish the Bar Confidant, the Integrated Bar of the Philippines, and the Court Administrator for circulation to all courts in the country.1âwphi1.nêtSO ORDERED.SECOND DIVISIONA.C. No. 4673 April 27, 2001ATTY. HECTOR TEODOSIO, petitioner, vs.MERCEDES NAVA, respondent.MENDOZA, J.:This is a complaint filed against petitioner Atty. Hector Teodosio for having allegedly represented clients with conflicting interests in violation of Rule 15.01 of the Code of Professional Responsibility.Respondent Mercedes Nava alleged that petitioner acted as counsel for Melanie Batislaong in several cases1 in various branches of the Iloilo City Regional Trial Court while acting as counsel for Letecia Espinosa and Ma. Gilda Palma in cases2 filed by them against Melanie Batislaong and herself, respondent Mercedes Nava.In his comment, petitioner admits that Melanie Batislaong, Letecia Espinosa, and Ma. Gilda Palma are indeed his clients with respect to the cases mentioned by respondent. He denies, however, that his clients’ interests are conflicting and contends that his clients in fact have a common interest against respondent Nava. According to him, Nava used to be the manager of Batislaong’s lending business and, in that capacity, dealt with several borrowers, including Espinosa and Palma. Due to acts of mismanagement allegedly committed by Nava, Batislaong, then represented by Atty. Eugenio O. Original, sued Nava for accounting and damages (Civil Case No. 21417). In turn, Nava charged Batislaong (Criminal Case Nos. 79688 and 44181) and Espinosa and Palma (I.S. Nos. 2200-93 and 2068-93) with estafa.While the complaints against them were pending preliminary investigation, Espinosa and Palma hired petitioner’s services in seeking the annulment of certain trust receipt agreements allegedly falsified by Nava, on the basis of which the criminal complaints against them were filed. As a result, petitioner filed on behalf of Espinosa and Palma Civil Case Nos. 21511 and 21493 against Nava and Batislaong for annulment of contract and damages. Petitioner claims that he impleaded Batislaong as Nava’s co-defendant because Espinosa and Palma wanted to settle the balance of the amount they had borrowed from Batislaong through Nava but they were unsure whether the payment should be made to Nava or Batislaong as the two had parted ways. Both were, therefore, impleaded so that they could interplead who between them should receive the payment. Petitioner claims that it was only after he had filed these cases that Batislaong offered to hire him as her counsel not only in the civil case she had filed against Nava (Civil Case No. 21417) but also in the two estafa cases, Criminal Case Nos. 79688 and 44181, filed against her by Nava. Petitioner claims that he agreed to represent Batislaong in these cases only after he had explained to her the nature of the complaints filed by Espinosa and Palma against her and Nava in Civil Case Nos. 21511 and 21493.3
Petitioner submitted affidavits executed by Batislaong, Espinosa, and Palma stating that they have no complaints in the way petitioner handled their cases and that each of them was aware that the other was represented by petitioner. Petitioner further submitted another set of affidavits executed by Espinosa and Palma stating in detail the extent of their knowledge of petitioner’s involvement in Batislaong’s cases as well as the basis of their consent for him to act as their common counsel.4
Respondent assails the affidavits of Batislaong, Espinosa, and Palma on the ground that they were notarized by a lawyer from petitioner’s law firm and that they do not bear the data as to the residence certificates of the affiants. In addition, respondent claims that petitioner failed to ask the court to declare Batislaong in default despite the latter’s failure to answer the complaints filed by Espinosa and Palma, and contends that this is proof of petitioner’s bias for her (Batislaong).5
In response, petitioner claims that there was no need to declare Batislaong in default in Civil Case Nos. 21511 and 21493 because Nava, in her Answer, had disclaimed any interest in the offer of payment of Palma and
Espinosa, making the necessity for the defendants to interplead moot and academic as the money would logically be paid to Batislaong.6
The Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report, and recommendation. In a report, dated June 23, 1998, IBP Commissioner Milagros V. San Juan recommended the dismissal of the complaint for lack of merit.7 However, the IBP Board of Governors, in Resolution XIII-99-23 of February 23, 1999, found petitioner guilty of violation of Rule 15.03 of the Code of Professional Responsibility and ordered him suspended from the practice of law for one year. The Board’s resolution reads:RESOLUTION NO. XIII-99-23Adm. Case No. 4673Mercedes Nava vs. Atty. Hector TeodosioRESOLVED to SUSPEND Atty. Hector Teodosio for ONE (1) YEAR from the practice of law for representing litigants with CONFLICTING INTERESTS.8
IBP Governor for Eastern Visayas, Kenny A.H. Tantuico, dissenting, adopted the report and recommendation of Commissioner San Juan in view of the consent given by respondent’s clients.On April 13, 1999, petitioner filed a motion to set aside IBP Resolution XIII-99-23. The Court referred the motion to the IBP which, on December 11, 1999, issued Resolution XIV-99-286, affirming the Board’s original Resolution XIII-99-23.After receipt of IBP Resolution XIV-99-286, the Court resolved to treat petitioner’s motion to set aside the questioned IBP resolution as his petition for review thereof and required respondent to file comment. In lieu of comment, respondent filed a manifestation stating that the points raised in petitioner’s motion were mere reiterations of what he had already stated in his prior pleadings.9 Petitioner filed a Reply to respondent’s manifestation.10
We now deal with the issues raised in the petition for review.First. Petitioner points out that the IBP Board ordered him suspended from the practice of law without stating the facts and the law on which its decision is based. On the other hand, although the report of the investigating commissioner contains findings, her recommendation was for the dismissal of the complaint against petitioner for lack of merit. Petitioner contends that even the commissioner’s report is of doubtful validity since she failed to schedule any hearing on the case before she submitted her report to the Board of Governors.11
The pertinent provisions of Rule 139-B of the Rules of Court on the IBP’s investigation of disbarment complaints, the report of its investigator, and the review of the latter’s findings by the Board of Governors, state:SEC. 8. Investigation. ¾ Upon joinder of issues or upon failure of the respondent to answer, the Investigator shall, with deliberate speed, proceed with the investigation of the case. He shall have the power to issue subpoenas and administer oaths. The respondent shall be given full opportunity to defend himself, to present witnesses on his behalf and be heard by himself and counsel. However, if upon reasonable notice, the respondent fails to appear, the investigation shall proceed ex parte.. . . .SEC. 10. Report of Investigator. ¾ Not later than thirty (30) days from termination of the investigation, the Investigator shall submit a report containing his findings of fact and recommendations to the IBP Board of Governors, together with the stenographic notes and the transcript thereof, and all the evidence presented during the investigation. The submission of the report need not await the transcription of the stenographic notes, it being sufficient that the report reproduce substantially from the Investigator’s personal notes any relevant and pertinent testimonies.. . . . SEC. 12. Review and decision by the Board of Governors. ¾ (a) Every case heard by an investigator shall be reviewed by the IBP Board of Governors upon the record and evidence transmitted to it by the Investigator with his report. The decision of the Board upon such review shall be in writing and shall clearly and distinctly state the facts and the reasons on which it is based. It shall be promulgated within a period not exceeding thirty (30) days from the next meeting of the Board following the submittal of the Investigator’s report.
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(b) If the Board, by the vote of a majority of its total membership, determines that the respondent should be suspended from the practice of law or disbarred, it shall issue a resolution setting forth its findings and recommendations which, together with the whole record of the case, shall forthwith be transmitted to the Supreme Court for final action. (Emphasis added)The requirement that the IBP investigator afford the respondent in a disbarment complaint full opportunity to present his case cannot be taken lightly for it is meant to ensure that baseless accusations against members of the Bar do not prosper.12 Similarly, the requirement that the decision of the Board of Governors state the facts and the reasons on which it is based, which is akin to what is required of the decisions of courts of record, serves an important function. For aside from informing the parties the reason for the decision to enable them to point out to the appellate court the findings with which they are not in agreement, in case any of them decides to appeal the decision, it is also an assurance that the judge, or the Board of Governors in this case, reached his judgment through the process of legal reasoning.13
In the case at bar, the IBP failed to observe these procedural requirements. Commissioner San Juan appear not to have scheduled a hearing on the case nor required the parties to submit their evidence. Similarly, the Board of Governors’ resolution suspending petitioner from the practice of law does not contain any findings of fact or law upon which it based its ruling.Non-compliance with the foregoing procedural rules would normally result in the remand of the case.14
Nevertheless, in instances where the controversy has been pending resolution for quite sometime and the issues involved could be resolved on the basis of the records on appeal, the Court has opted to resolve the case in the interest of justice and speedy disposition of cases.15 In view of the presence of such circumstances in this case, the Court deems it advisable to do so.Second. We now resolve the question whether petitioner is guilty of violation of the Code of Professional Responsibility which in pertinent part provides:Rule 15.03 ¾ A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts.Under Canon 6 of the previous Canons of Professional Ethics, a lawyer is deemed to represent conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.16 The rule is designed to remove from attorneys the opportunity to take advantage of the secrets of clients obtained during the existence of the client-attorney relation.17
Based on the facts of this case, we hold that petitioner’s conduct does not amount to a violation of the rule. The records bear out petitioner’s contention that based on the causes of action of the cases involving Melanie Batislaong on one hand and Letecia Espinosa and Ma. Gilda Palma on the other, he could simultaneously represent them without any possible violation of the client-attorney confidentiality. In the cases filed by him for Espinosa and Palma (Civil Case Nos. 21511 and 21493), it is only Nava against whom the former have an adverse interest as it was the latter who allegedly falsified the trust receipt agreements to the prejudice of Palma and Espinosa. Indeed, were it not for the offer of Palma and Espinosa to settle their obligation, there would have been no need to implead Batislaong as a defendant. On the other hand, in the other cases in which Batislaong is a party, either as plaintiff in Civil Case No. 21417 or as an accused in Criminal Case Nos. 78200, 79688, and 44181, neither Palma nor Espinosa are parties. Indeed, it is Nava who is the respondent in the first case and the private complainant in the last two criminal cases. Under the foregoing circumstances, the danger that petitioner may abuse his clients’ confidences to the detriment of the other is absent.Respondent contends that petitioner’s failure to ask the court to have Batislaong declared in default in Civil Case Nos. 21511 and 21493 despite the fact that she failed to file her answer is proof that he was favoring Batislaong over Espinosa and Palma. This contention is untenable. As petitioner explains, with Nava disclaiming any interest in the offer of payment of Espinosa and Palma, petitioner found no need to have Batislaong declared in default as Nava’s contention meant that it was Batislaong alone who would be entitled to receive payment. In any case, Batislaong’s failure to file her answer, coupled with Nava’s disavowal of interest, could only mean that the money offered in payment will be kept in the custody of the court subject to future claims.
Third. Even granting that the interests of Espinosa, Palma, and Batislaong are conflicting, petitioner cannot be held liable for acting as their common counsel in view of the fact that, as stated in their affidavits, petitioner explained to them the consequences of his representation and that they gave their consent to the same. Indeed, Espinosa and Palma stated that it was they themselves who brought Batislaong to petitioner’s office so that the latter could engage his services.18 The fact that the first set of affidavits were uniformly notarized by an associate in petitioner’s law firm and that they did not state certain data relating to the residence certificates of the affiants do not adversely affect their validity absent any proof that the affiants did not execute them of their own volition or that their signature therein are not authentic.WHEREFORE, Resolutions XIII-99-23 and XIV-99-286 of the Integrated Bar of the Philippines are SET ASIDE and the complaint against respondent Atty. Hector Teodosio is DISMISSED for lack of merit.SO ORDERED.A.C. No. 5128 March 31, 2005ELESIO1 C. PORMENTO, SR., Complainant, vs.ATTY. ALIAS A. PONTEVEDRA, respondent.R E S O L U T I O NAUSTRIA-MARTINEZ, J.:In a verified Complaint2 dated August 7, 1999, Elesio C. Pormento, Sr. charged Atty. Elias A. Pontevedra with malpractice and misconduct, praying that on the basis of the facts alleged therein, respondent be disbarred.Complainant alleges that between 1964 and 1994, respondent is his family's legal counsel having represented him and members of his family in all legal proceedings in which they are involved. Complainant also claims that his family's relationship with respondent extends beyond mere lawyer-client relations as they gave respondent moral, spiritual, physical and financial support in his different endeavors.3
Based on the allegations in the complaint, the rift between complainant and respondent began when complainant's counterclaim in Civil Case No. 1648 filed with the Regional Trial Court of Bacolod City was dismissed. Complainant claims that respondent, who was his lawyer in the said case, deliberately failed to inform him of the dismissal of his counterclaim despite receipt of the order of dismissal by the trial court, as a result of which, complainant was deprived of his right to appeal said order. Complainant asserts that he only came to know of the existence of the trial court's order when the adverse party in the said case extrajudicially foreclosed the mortgage executed over the parcel of land which is the subject matter of the suit. In order to recover his ownership over the said parcel of land, complainant was constrained to hire a new lawyer as Atty. Pontevedra refused to institute an action for the recovery of the subject property.4
Complainant also claims that in order to further protect his rights and interests over the said parcel of land, he was forced to initiate a criminal case for qualified theft against the relatives of the alleged new owner of the said land. Respondent is the counsel of the accused in said case. Complainant claims that as part of his defense in said criminal case, respondent utilized pieces of confidential information he obtained from complainant while the latter is still his client.5
In a separate incident, complainant claims that in 1967, he bought a parcel of land located at Escalante, Negros Occidental. The Deed of Declaration of Heirship and Sale of said land was prepared and notarized by respondent. Since there was another person who claims ownership of the property, complainant alleges that he heeded respondent's advice to build a small house on the property and to allow his (complainant's) nephew and his family to occupy the house in order for complainant to establish his possession of the said property. Subsequently, complainant's nephew refused to vacate the property prompting the former to file an ejectment case with the Municipal Trial Court of Escalante, Negros Occidental, docketed as Civil Case No. 528. Respondent acted as the counsel of complainant's nephew.6
Complainant contends that respondent is guilty of malpractice and misconduct by representing clients with conflicting interests and should be disbarred by reason thereof.7
In his Comment,8 respondent contends that he was never a direct recipient of any monetary support coming from the complainant. Respondent denies complainant's allegation that he (respondent) did not inform
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complainant of the trial court's order dismissing the latter's counterclaim in Civil Case No. 1648. Respondent claims that within two days upon his receipt of the trial court's order of dismissal, he delivered to complainant a copy of the said order, apprising him of its contents. As to his representation of the persons against whom complainant filed criminal cases for theft,9 respondent argues that he honestly believes that there exists no conflict between his present and former clients' interests as the cases he handled for these clients are separate and distinct from each other. He further contends that he took up the cause of the accused in the criminal cases filed by complainant for humanitarian considerations since said accused are poor and needy and because there is a dearth of lawyers in their community. With respect to the case for ejectment filed by complainant against his nephew, respondent admits that it was he who notarized the deed of sale of the parcel of land sold to complainant. However, he contends that what is being contested in the said case is not the ownership of the subject land but the ownership of the house built on the said land.10
On December 21, 1999, complainant filed a Reply to respondent's Comment.11
On January 19, 2000, the Court referred the instant case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.12
On February 18, 2002, respondent filed a Rejoinder to complainant's Reply adding that the instant complaint was orchestrated by complainant's son who wanted political vengeance because he lost the vice-mayoralty post to respondent during the 1988 local elections.13
On February 20, 2002, complainant filed a Sur-Rejoinder to respondent's Rejoinder.14
Thereafter, the parties filed their respective Position Papers,15 after which the case was deemed submitted for resolution.In his Report and Recommendation dated February 20, 2004, Investigating Commissioner Agustinus V. Gonzaga found respondent guilty of violating Rule 15.03, Canon 15 of the Code of Professional Responsibility. He recommended that respondent be meted the penalty of suspension for one month.In a minute Resolution passed on July 30, 2004, the IBP Board of Governors resolved to annul and set aside the recommendation of the Investigating Commissioner and instead approved the dismissal of the complaint for lack of merit, to wit:RESOLUTION NO. XVI-2004-387Adm. Case No. 5128Elesio C. Pormento, Sr., vs. Atty. Elias A. PontevedraRESOLVED to ANNUL and SET ASIDED [sic], as it is hereby ANNULED and SET ASIDE, the Recommendation of the Investigating Commission, and to APPROVE the DISMISSAL of the above-entitled case for lack of merit of the complaint.We do not agree with the dismissal of the complaint.At the outset, we reiterate the settled rule that in complaints for disbarment, a formal investigation is a mandatory requirement which may not be dispensed with except for valid and compelling reasons.16 Formal investigations entail notice and hearing. However, the requirements of notice and hearing in administrative cases do not necessarily connote full adversarial proceedings, as actual adversarial proceedings become necessary only for clarification or when there is a need to propound searching questions to witnesses who give vague testimonies.17 Due process is fulfilled when the parties were given reasonable opportunity to be heard and to submit evidence in support of their arguments.18
From the records extant in the present case, it appears that the Investigating Commissioner conducted a hearing on January 16, 2002 where it was agreed that the complainant and the respondent shall file their respective position papers, after which the case shall be deemed submitted for resolution.19 No further hearings were conducted.It is also disturbing to note that the abovementioned Resolution of the IBP Board of Governors, annulling and setting aside the recommendation of the Investigating Commissioner, is bereft of any findings of facts or explanation as to how and why it resolved to set aside the recommendation of the Investigating Commissioner and instead dismissed the complaint against respondent.Section 12(a), Rule 139-B of the Rules of Court provides:
SEC. 12. Review and decision by the Board of Governors. – (a) Every case heard by an investigator shall be reviewed by the IBP Board of Governors upon the record and evidence transmitted to it by the Investigator with his report. The decision of the Board upon such review shall be in writing and shall clearly and distinctly state the facts and the reasons on which it is based. It shall be promulgated within a period not exceeding thirty (30) days from the next meeting of the Board following the submittal of the Investigator's report. (Emphasis supplied)In Cruz vs. Cabrera,20 we reiterated the importance of the requirement that the decision of the IBP Board of Governors must state the facts and the reasons on which such decision is based, which is akin to what is required of the decisions of courts of record. We held therein that:[A]side from informing the parties the reason for the decision to enable them to point out to the appellate court the findings with which they are not in agreement, in case any of them decides to appeal the decision, it is also an assurance that the judge, or the Board of Governors in this case, reached his judgment through the process of legal reasoning.Noncompliance with this requirement would normally result in the remand of the case.21
Moreover, while we may consider the act of the IBP Board of Governors in simply adopting the report of the Investigating Commissioner as substantial compliance with said Rule, in this case, we cannot countenance the act of the IBP Board of Governors in merely stating that it is annulling the Commissioner's recommendation and then dismiss the complaint without stating the facts and the reasons for said dismissal.However, considering that the present controversy has been pending resolution for quite some time, that no further factual determination is required, and the issues being raised may be determined on the basis of the numerous pleadings filed together with the annexes attached thereto, we resolve to proceed and decide the case on the basis of the extensive pleadings on record, in the interest of justice and speedy disposition of the case.22
Coming to the main issue in the present case, respondent is being accused of malpractice and misconduct on three grounds: first, for representing interests which conflict with those of his former client, herein complainant; second, for taking advantage of the information and knowledge that he obtained from complainant; and, third, for not notifying complainant of the dismissal of his counterclaim in Civil Case No. 1648.We shall concurrently discuss the first and second grounds as they are interrelated.Rule 15.03, Canon 15 of the Code of Professional Responsibility provides:"A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts."Corollary to this, Canon 21 of the same Code enjoins a lawyer to preserve the confidences and secrets of his clients even after the attorney-client relation is terminated. Rule 21.02, Canon 21 specifically requires that:A lawyer shall not, to the disadvantage of his client, use information acquired in the course of employment, nor shall he use the same to his own advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto.In addition, Canon 6 of the Canons of Professional Ethics states:It is the duty of a lawyer at the time of retainer to disclose to the client all the circumstances of his relations to the parties and any interest in or connection with the controversy, which might influence the client in the selection of counsel.It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.Jurisprudence instructs that there is a representation of conflicting interests if the acceptance of the new retainer will require the attorney to do anything which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation, to use against his first client any
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knowledge acquired through their connection.23 Another test to determine if there is a representation of conflicting interests is whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double dealing in the performance thereof.24
A lawyer is forbidden from representing a subsequent client against a former client when the subject matter of the present controversy is related, directly or indirectly, to the subject matter of the previous litigation in which he appeared for the former client.25 Conversely, he may properly act as counsel for a new client, with full disclosure to the latter, against a former client in a matter wholly unrelated to that of the previous employment, there being in that instance no conflict of interests.26 Where, however, the subject matter of the present suit between the lawyer's new client and his former client is in some way connected with that of the former client's action, the lawyer may have to contend for his new client that which he previously opposed as counsel for the former client or to use against the latter information confided to him as his counsel.27 As we have held in Maturan vs. Gonzales:28
The reason for the prohibition is found in the relation of attorney and client, which is one of trust and confidence of the highest degree. A lawyer becomes familiar with all the facts connected with his client's case. He learns from his client the weak points of the action as well as the strong ones. Such knowledge must be considered sacred and guarded with care. No opportunity must be given him to take advantage of the client's secrets. A lawyer must have the fullest confidence of his client. For if the confidence is abused, the profession will suffer by the loss thereof.29
The proscription against representation of conflicting interests finds application where the conflicting interests arise with respect to the same general matter and is applicable however slight such adverse interest may be.30 In essence, what a lawyer owes his former client is to maintain inviolate the client's confidence or to refrain from doing anything which will injuriously affect him in any matter in which he previously represented him.31
In the present case, we find no conflict of interests when respondent represented herein complainant's nephew and other members of his family in the ejectment case, docketed as Civil Case No. 528, and in the criminal complaint, denominated as I.S. Case No. 99-188, filed by herein complainant against them. The only established participation respondent had with respect to the parcel of land purchased by complainant, is that he was the one who notarized the deed of sale of the said land. On that basis alone, it does not necessarily follow that respondent obtained any information from herein complainant that can be used to the detriment of the latter in the ejectment case he filed.While complainant alleges that it was respondent who advised him to allow his nephew to temporarily occupy the property in order to establish complainant's possession of said property as against another claimant, no corroborating evidence was presented to prove this allegation. Defendant, in his answer to the complaint for ejectment, raised the issue as to the right of the vendor to sell the said land in favor of complainant.32 However, we find this immaterial because what is actually in issue in the ejectment case is not the ownership of the subject lot but the ownership of the house built on the said lot. Furthermore, the subject matter of I.S. Case No. 99-188 filed by complainant against his nephew and other members of his family involves several parts of trucks owned by herein complainant.33 This case is not in any way connected with the controversy involving said parcel of land. In fine, with respect to Civil Case No. 528 and I.S. Case No. 99-188, complainant failed to present substantial evidence to hold respondent liable for violating the prohibition against representation of conflicting interests.However, we find conflict of interests in respondent's representation of herein complainant in Civil Case No. 1648 and his subsequent employment as counsel of the accused in Criminal Case No. 3159.The subject matter in Civil Case No. 1648 is Lot 609 located at Escalante, Negros Occidental, the same parcel of land involved in Criminal Case No. 3159 filed by herein complainant against several persons, accusing them of theft for allegedly cutting and stealing coconut trees within the premises of the said lot. Complainant contends that it is in this criminal case that respondent used confidential information which the latter obtained from the former in Civil Case No. 1648.To prove his contention, complainant submitted in evidence portions of the transcript of stenographic notes taken during his cross-examination in Criminal Case No. 3159. However, after a reading of the said transcript, we
find no direct evidence to prove that respondent took advantage of any information that he may have been acquired from complainant and used the same in the defense of his clients in Criminal Case No. 3159. The matter discussed by respondent when he cross-examined complainant is the ownership of Lot 609 in its entirety, only a portion of which was purportedly sold to complainant. Part of the defense raised by his clients is that herein complainant does not have the personality to file the criminal complaint as he is not the owner of the lot where the supposed theft occurred. It is possible that the information as to the ownership of the disputed lot used by respondent in bringing up this issue may have been obtained while he still acted as counsel for complainant. It is also probable that such information may have been taken from other sources, like the Registry of Deeds, the Land Registration Authority or the respondent's clients themselves.Nonetheless, be that as it may, it cannot be denied that when respondent was the counsel of complainant in Civil Case No. 1648, he became privy to the documents and information that complainant possessed with respect to the said parcel of land. Hence, whatever may be said as to whether or not respondent utilized against complainant any information given to him in a professional capacity, the mere fact of their previous relationship should have precluded him from appearing as counsel for the opposing side. As we have previously held:The relations of attorney and client is [are] founded on principles of public policy, on good taste. The question is not necessarily one of the rights of the parties, but as to whether the attorney has adhered to proper professional standard. With these thoughts in mind, it behooves attorneys, like Caesar's wife, not only to keep inviolate the client's confidence, but also to avoid the appearance of treachery and double-dealing. Only thus can litigants be encouraged to entrust their secrets to their attorneys which is of paramount importance in the administration of justice.34
Moreover, we have held in Hilado vs. David35 that:Communications between attorney and client are, in a great number of litigations, a complicated affair, consisting of entangled relevant and irrelevant, secret and well known facts. In the complexity of what is said in the course of dealings between an attorney and client, inquiry of the nature suggested would lead to the revelation, in advance of the trial, of other matters that might only further prejudice the complainant's cause.36
Thus, respondent should have declined employment in Criminal Case No. 3159 so as to avoid suspicion that he used in the criminal action any information he may have acquired in Civil Case No. 1648.Moreover, nothing on record would show that respondent fully apprised complainant and his new clients and secured or at least tried to secure their consent when he took the defense of the accused in Criminal Case No. 3159.Respondent contends that he handled the defense of the accused in the subject criminal case for humanitarian reasons and with the honest belief that there exists no conflict of interests. However, the rule is settled that the prohibition against representation of conflicting interests applies although the attorney's intentions and motives were honest and he acted in good faith.37 Moreover, the fact that the conflict of interests is remote or merely probable does not make the prohibition inoperative.38
Respondent also asserts that when he accepted employment in Criminal Case No. 3159, the attorney-client relations between him and complainant in Civil Case No. 1648 had already been terminated. This defense does not hold water because the termination of the relation of attorney and client provides no justification for a lawyer to represent an interest adverse to or in conflict with that of the former client.39
Thus, we find respondent guilty of misconduct for representing conflicting interests.As to the third ground, we find that complainant failed to present substantial evidence to prove that respondent did not inform him of the dismissal of his counterclaim in Civil Case No. 1648. On the contrary, we find sufficient evidence to prove that complainant has been properly notified of the trial court's order of dismissal. The only proof presented by complainant to support his claim is the affidavit of his daughter confirming complainant's contention that respondent indeed failed to inform him of the dismissal of his counterclaim.40 However, in the same affidavit, complainant's daughter admits that it was on December 4, 1989 that respondent received the order of the trial court dismissing complainant's counterclaim. Respondent, presented a "certification" dated December 11, 1989, or one week after his receipt of the trial court's order, where complainant's daughter acknowledged receipt of the entire records of Civil Case No. 1648 from complainant.41 The same "certification"
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relieved respondent of his obligation as counsel of complainant. From the foregoing, it can be inferred that respondent duly notified complainant of the dismissal of his counterclaim. Otherwise, complainant could not have ordered his daughter to withdraw the records of his case from respondent at the same time relieving the latter of responsibility arising from his obligation as complainant's counsel in that particular case.As to the penalty to be imposed, considering respondent's honest belief that there is no conflict of interests in handling Civil Case No. 1648 and Criminal Case No. 3159, and it appearing that this is respondent's first infraction of this nature, we find the penalty of suspension to be disproportionate to the offense committed.42 Moreover, we take into account respondent's undisputed claim that there are only three lawyers who are actually engaged in private practice in Escalante, Negros Occidental, where both complainant and respondent reside. One of the lawyers is already handling complainant's case, while the other lawyer is believed by respondent's clients to be a relative of complainant. Hence, respondent's clients believed that they had no choice but go to him for help. We do not find this situation as an excuse for respondent to accept employment because he could have referred his clients to the resident lawyer of the Public Attorney's Office or to other lawyers in the neighboring towns. Nonetheless, in view of respondent's belief that he simply adhered to his sworn duty to defend the poor and the needy, we consider such situation as a circumstance that mitigates his liability. Considering the foregoing facts and circumstances, we find it proper to impose a fine on respondent. In Sibulo vs. Cabrera,43 the respondent is fined for having been found guilty of unethical conduct in representing two conflicting interests.Respondent is further reminded to be more cautious in accepting professional employments, to refrain from all appearances and acts of impropriety including circumstances indicating conflict of interests, and to behave at all times with circumspection and dedication befitting a member of the Bar, especially observing candor, fairness and loyalty in all transactions with his clients.44
WHEREFORE, respondent Atty. Elias A. Pontevedra is found GUILTY of representing conflicting interests and is hereby FINED in the amount of Ten Thousand (P10,000.00) Pesos. He is WARNED that a repetition of the same or similar acts will be dealt with more severely.The Board of Governors of the Integrated Bar of the Philippines is DIRECTED to be heedful of the requirements provided for in Section 12(a), Rule 139-B of the Rules of Court as discussed in the text of herein decision.SO ORDERED.A.C. No. 1526 January 31, 2005NAZARIA S. HERNANDEZ (DECEASED), SUBSTITUTED BY LUCIANO S. HERNANDEZ, JR., complainant, vs.ATTY. JOSE C. GO, respondent.D E C I S I O NPER CURIAM:For our resolution is the verified letter-complaint1 for disbarment against Atty. Jose C. Go dated June 23, 1975 filed by Nazaria S. Hernandez (now deceased). Both parties are from Zamboanga City.The allegations in the letter-complaint are:Sometime in 1961, complainant’s husband abandoned her and her son, Luciano S. Hernandez, Jr. Shortly thereafter, her husband’s numerous creditors demanded payments of his loans. Fearful that the various mortgage contracts involving her properties will be foreclosed and aware of impending suits for sums of money against her, complainant engaged the legal services of Atty. Jose C. Go, herein respondent.Respondent instilled in complainant a feeling of helplessness, fear, embarrassment, and social humiliation. He advised her to give him her land titles covering Lots 848-A, 849-Q, and 849-P at Zamboanga City so he could sell them to enable her to pay her creditors. He then persuaded her to execute deeds of sale in his favor without any monetary or valuable consideration. Complainant agreed on condition that he would sell the lots and from the proceeds pay her creditors.Complainant also owned Lots 2118, 2139, and 1141-A, likewise located in Zamboanga City, which were mortgaged to her creditors. When the mortgages fell due, respondent redeemed the lots. Again, he convinced her to execute deeds of sale involving those lots in his favor. As a result, respondent became the registered owner of all the lots belonging to complainant.
Sometime in 1974, complainant came to know that respondent did not sell her lots as agreed upon. Instead, he paid her creditors with his own funds and had her land titles registered in his name, depriving her of her real properties worth millions.1a\^/phi1.netIn our Resolution dated September 24, 1975, respondent was required to file his comment on the complaint.Instead of filing his comment, respondent submitted a motion to dismiss on the ground that the complaint is premature since there is pending before the then Court of First Instance of Zamboanga City Civil Case No. 17812for recovery of ownership and declaration of nullity of deeds of sale filed by complainant against him involving the subject lots.On November 14, 1975, we issued a Resolution denying respondent’s motion and requiring him to submit his answer.In his answer dated December 19, 1975, respondent denied the allegations in the instant complaint. He averred that he sold, in good faith, complainant’s lots to various buyers, including himself, for valuable consideration. On several occasions, he extended financial assistance to complainant and even invited her to live with his family. His children used to call her "Lola" due to her frequent visits to his residence. He prayed that the complaint be dismissed for failure to state a cause of action.On January 17, 1977, we referred the case to the Office of the Solicitor General (OSG) for investigation, report, and recommendation.It was only on March 13, 1990 or after 13 years, 1 month and 26 days that the OSG filed a motion to refer the instant case to the IBP for the retaking of the testimonies of complainant’s witnesses and the submission of its report and recommendation.On April 4, 1990, we issued a Resolution referring the case to the IBP for investigation, report, and recommendation.The Report and Recommendation dated June 15, 2004 of Atty. Lydia A. Navarro, Commissioner of the IBP Commission on Bar Discipline, is quoted as follows:"A careful examination and evaluation of the evidence submitted by the parties showed that all the properties of the complainant are presently owned by the respondent by virtue of several deeds of sale executed by the complainant in favor of the respondent without monetary consideration except Lot 849-D situated in Tomas Claudio which was returned by the respondent to the complainant on September 5, 1974.It is evident from the records that respondent was the one who notarized the documents involving the said properties redeemed or repurchased by the complainant from her creditors which ended up in respondent’s name like in the deed of sale executed by Victoriano Dejerano in favor of Nazaria Hernandez over Lots 1141-A-3-A and 1141-A-3-B; deed of sale executed by Antonio Masrahon on September 3, 1961regarding Lot No. 1141-A; deed of absolute sale executed by Francisco Esperat over the Curuan properties on November 9, 1971 and the cancellation of the mortgage executed by Alfonso Enriquez on July 18, 1964 over the Tomas Claudio properties.The foregoing legal activities and operations of the respondent in addition to his having discussed, advised and gave solutions to complainant’s legal problems and liabilities to her creditors and even requested her creditors for extension of time to pay complainant’s accounts constitute practice of law as legal counsel for consultation aside from representing complainant in other cases; a mute proof of a lawyer-client relations between them, a fact also admitted by the respondent.It is incumbent upon the respondent to have rendered a detailed report to the complainant on how he paid complainant’s creditors without selling her properties. Instead of selling to buyers at higher price, he paid them out of his own funds; then later on admitted that he was one of the purchasers of complainant’s properties in utter disregard of their agreement and no evidence was submitted by the respondent concerning the value of the said sale of complainant’s properties.As such, respondent did not adhere faithfully and honestly in his obligation and duty as complainant’s legal adviser and counsel when he took advantage of the trust and confidence reposed in him by the complainant in ultimately putting complainant’s properties in his name and possession in violation of Canon 17 of the Code of Professional Responsibility.
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WHEREFORE, in view of the foregoing, the undersigned respectfully recommends that respondent Atty. Jose C. Go be suspended from the practice of law for a period of six (6) months from receipt hereof and the IBP Chapter where he is a registered member be furnished a copy of the same for implementation hereof, subject to the approval of the Honorable Members of the Board of Governors."On July 30, 2004, the IBP Board of Governors passed Resolution No. XVI-2004-39 adopting and approving the Report of Commissioner Navarro with modification in the sense that the recommended penalty of suspension from the practice of law was increased from six (6) months to three (3) years.We sustain the Resolution of the IBP Board of Governors finding that respondent violated the Code of Professional Responsibility.l^vvphi1.net However, we have to modify its recommended penalty.1a\^/phi1.netCanon 16 of the Code of Professional Responsibility, the principal source of ethical rules for lawyers in this jurisdiction, provides:"A lawyer shall hold in trust all moneys and properties of his client that may come into his possession."Respondent breached this Canon. His acts of acquiring for himself complainant’s lots entrusted to him are, by any standard, acts constituting gross misconduct, a grievous wrong, a forbidden act, a dereliction in duty, willful in character, and implies a wrongful intent and not mere error in judgment.3 Such conduct on the part of respondent degrades not only himself but also the name and honor of the legal profession. He violated this Court’s mandate that lawyers must at all times conduct themselves, especially in their dealing with their clients and the public at large, with honesty and integrity in a manner beyond reproach.4
Canon 17 of the same Code states:"A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him."The records show that complainant reposed such high degree of trust and confidence in herein respondent, that when she engaged his services, she entrusted to him her land titles and allowed him to sell her lots, believing that the proceeds thereof would be used to pay her creditors. Respondent, however, abused her trust and confidence when he did not sell her properties to others but to himself and spent his own money to pay her obligations. As correctly observed by Investigating IBP Commissioner Lydia Navarro, respondent is duty-bound to render a detailed report to the complainant on how much he sold the latter’s lots and the amounts paid to her creditors. Obviously, had he sold the lots to other buyers, complainant could have earned more. Records show that she did not receive any amount from respondent. Clearly, respondent did not adhere faithfully and honestly in his duty as complainant’s counsel.Undoubtedly, respondent’s conduct has made him unfit to remain in the legal profession. He has definitely fallen below the moral bar when he engaged in deceitful, dishonest, unlawful and grossly immoral acts. We have been exacting in our demand for integrity and good moral character of members of the Bar. They are expected at all times to uphold the integrity and dignity of the legal profession5 and refrain from any act or omission which might lessen the trust and confidence reposed by the public in the fidelity, honesty, and integrity of the legal profession.6Membership in the legal profession is a privilege.7 And whenever it is made to appear that an attorney is no longer worthy of the trust and confidence of his clients and the public, it becomes not only the right but also the duty of this Court, which made him one of its officers and gave him the privilege of ministering within its Bar, to withdraw the privilege.8 Respondent, by his conduct, blemished not only his integrity as a member of the Bar, but also the legal profession.Public interest requires that an attorney should exert his best efforts and ability to protect the interests of his clients. A lawyer who performs that duty with diligence and candor not only protects his client’s cause; he also serves the ends of justice and does honor to the bar and helps maintain the respect of the community to the legal profession.It is a time-honored rule that good moral character is not only a condition precedent to admission to the practice of law. Its continued possession is also essential for remaining in the legal profession.9
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 office; (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.10
In Rayos-Ombac vs. Rayos ,11 we ordered the disbarment of lawyer when he deceived his 85-year old aunt into entrusting him with all her money and later refused to return the same despite demand. In Navarro vs. Meneses III,12 we disbarred a member of the Bar for his refusal or failure to account for the P50,000.00 he received from a client to settle a case. In Docena vs. Limson ,13 we expelled from the brotherhood of lawyers, an attorney who extorted money from his client through deceit and misrepresentation. In Busiños vs. Ricafort ,14 an attorney was stripped of his license to practice law for misappropriating his client’s money.Considering the depravity of respondent’s offense, we find the penalty recommended by the IBP too light. It bears reiterating that a lawyer who takes advantage of his client’s financial plight to acquire the latter’s properties for his own benefit is destructive of the confidence of the public in the fidelity, honesty, and integrity of the legal profession. Thus, for violation of Canon 16 and Canon 17 of the Code of Professional Responsibility, which constitutes 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, that of expulsion from the esteemed brotherhood of lawyers.WHEREFORE, respondent JOSE S. GO is found guilty of gross misconduct and is DISBARRED from the practice of law. His name is ordered STRICKEN from the Roll of Attorneys EFFECTIVE IMMEDIATELY.Let copies of this Decision be furnished the Bar Confidant, the Integrated Bar of the Philippines and all courts throughout the country.SO ORDERED.
A.C. No. 6591 May 4, 2005MARISSA L. MACARILAY, complainant, vs.FELIX B. SERIÑA, respondent.D E C I S I O NPANGANIBAN, J.:Failure to render the legal services agreed upon, despite the undisputed receipt of an acceptance fee, is a clear violation of the Code of Professional Responsibility. Negligence in attending to the needs of a client and a deceitful cover-up of such carelessness likewise constitute major breaches of the lawyer's oath.The CaseBefore us is a verified Complaint1 for "malpractice and/or gross misconduct" against Atty. Felix B. Seriña, filed by Marissa L. Macarilay with the Integrated Bar of the Philippines Commission on Bar Discipline (IBP-CBD) on September 22, 2003.The IBP-CBD, through Director Rogelio A. Vinluan, required respondent to answer the charges.2 It thereafter held a mandatory conference/hearing on January 13, 2004, during which the parties were able to enter into a stipulation of facts as well as to present and mark their documentary evidence.3 After they submitted their respective Position Papers,4 the case was deemed submitted for resolution.The investigator of the case, Commissioner Leland R. Villadolid Jr., summarized the antecedents thus:"Complainant's version of the facts pertinent to this case is as follows:"Sometime in year 2000, Complainant and one Jenelyn Balaoro ('Balaoro') bought a lot from one Albaria Mohammad ('Mohammad'). Complainant and Balaoro, however, could not register the sale with the Register of Deeds and cause the transfer of the title in their names because Mohammad failed to surrender the owner's duplicate certificate of title for said lot. Subsequently, Complainant learned from one Reina Ong ('Ong') that Mohammad had mortgaged the said lot to a third party. Ong advised Complainant to get a copy of the mortgage contract and to do this the latter needs to have a contact in the Register of Deeds. Sometime in January or February 2002, Ong introduced Complainant to one Vic Paule ('Paule'), an employee of the Register of Deeds of Quezon City, who advised Complainant to get a lawyer to handle the case. Complainant allegedly gave Paule P8,000.00 for the help the latter will give her in securing a copy of the mortgage contract concerned. On
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March 18, 2002, Complainant, Balaoro and Ong met with Paule at the Star Mall in Mandaluyong and proceeded to the office of Respondent, the lawyer recommended by Paule. During said meeting, Complainant consulted Respondent about the problem concerning the transfer of the subject lot title in her and Balaoro's names and the latter advised that the first thing [they have to do], is to file an adverse claim with the Register of Deeds. Respondent, however, required an acceptance fee ofP20,000.00 before he could act on the matter. Thus, on the same day, Complainant issued a check to Respondent for P20,000.00 as payment of the acceptance fee. Subsequently, Respondent asked Complainant for P3,000.00 as notarization fee and P5,000.00 as filing fee for the adverse claim. On April 5, 2002, Complainant and Balaoro went to Respondent's office and paid said amounts. On the same day, Respondent himself typed the affidavit of adverse claim in the presence of Complainant and Balaoro and the latter subsequently signed the same. On May 16, 2002, upon Respondent's advice, Complainant gave Respondent another P20,000.00 in check as filing fee for the suits to be filed against Mohammad."Towards the middle part of the year, Complainant inquired from Respondent about the status of the case(s) against Mohammad but the latter could not give any further developments other than that the affidavit of adverse claim had already been filed with the Register of Deeds. It appears that Respondent was having problems about the fact that Mohammad's whereabouts are unknown and Respondent was not sure what to do about it. Subsequently, Complainant received assurance from Respondent that the case against Mohammad was already filed in court although Respondent could not identify the particular court except that it was pending in the sala of one Judge Regala. Upon verification with the courts and the fiscal's office [at] Quezon City, Complainant learned that no case, whether criminal or civil, was ever filed by Respondent against Mohammad. Complainant then called Respondent regarding her findings and even suggested service of summons by publication upon Mohammad, having receiv[ed] advice from one Atty. Noel Sorreda ('Atty. Sorreda') that such manner of service is appropriate in view of the lack of information regarding Mohammad's whereabouts. Respondent, however, immediately got angry so Complainant did not insist on her inquiries and suggestions."On March 24, 2003, upon Complainant's request, Atty. Sorreda called Respondent to inquire about the specific branch where the case against Mohammad was supposedly pending. Respondent got angry and hung up the phone. Upon learning this, Complainant authorized Atty. Sorreda to terminate the services of Respondent on her behalf. Atty. Sorreda called Respondent a second time but was able to talk only with presumably Respondent's lady-receptionist or secretary whom Atty. Sorreda requested to just relay to Respondent his message regarding the termination of Respondent's services. On March 26, 2003, Atty. Sorreda, upon Complainant's request, sent a letter to Respondent confirming the verbal termination of services, and also asking for the turnover of the pertinent documents that were with Respondent. Subsequently, Complainant herself wrote Respondent a letter affirming the contents of the earlier letter of Atty. Sorreda. In a letter dated April 4, 2003, Respondent denied the fact of his termination by Atty. Sorreda and invited Complainant to his office to talk things over. Complainant responded through Atty. Sorreda in a letter dated May 16, 2003 by reiterating the termination of Respondent's services and the request for the turnover of documents. In a letter dated May 23, 2003, Respondent enclosed the documents requested. Since it appears from the documents turned over that Respondent never filed a suit against Mohammad, Complainant wrote Respondent demanding the return of the money she paid for the anticipated legal services Respondent was supposed to render but which were not actually rendered. Respondent's failure to respond to said letter prompted Complainant [to] send a follow-up letter dated July 16, 2003. Instead of returning the money, Respondent wrote Complainant a letter dated July 14, 2003 denying receipt of any amount from Complainant other than the P20,000.00 acceptance fee and demanding payment of alleged unpaid attorney's fee of P40,000 and fees for notarial services of P3,000.00 which Respondent allegedly advanced for Complainant. Thus, Complainant filed the present administrative case for disciplinary action, likewise praying for the return of the money she paid for the anticipated legal services Respondent was supposed to render but which were not actually rendered."On the other hand, Respondent's version of the facts pertinent to this case is as follows:"On March 16, 2002, Complainant, Balaoro and Ong went to Respondent's office during which Complainant related to Respondent her various problems and cases. Respondent advised Complainant that the solutions to
her problem regarding Mohammad consist of two (2) phases. The first phase consists of: (1) having the notary public of the deed covering the sale of the subject property sign the acknowledgment page (since although the said deed contained the notarial seal of said notary, the latter did not sign the same); (2) preparing a complaint in court to compel Mohammad to surrender the owner's certificate of title; and (3) executing an affidavit of adverse claim to cause its inscription on the copy of the said title in the Registry of Deeds to protect their interest. The second [phase] consists of: (1) filing the complaint in court to compel Mohammad to surrender the owner's duplicate certificate of title, to cause the cancellation of said title and the issuance of another title in the names of Complainant and Balaoro, and to cause the removal from said title of the mortgage lien thereon in favor of Hernando and Nenita Rosario; and (2) filing of a criminal complaint for estafa against Mohammad. On the same day, Complainant engaged Respondent to provide the legal services to pursue the foregoing remedies. The parties' verbal agreement with respect to Respondent's fees is as follows: (1) payment of acceptance fee of P20,000.00; (2) payment of attorney's fees of P15,000 after Respondent has accomplished the first [phase] of the remedies; (3) payment of attorney's fees of P15,000 after Respondent has accomplished the second [phase] of the remedies; and (4) for hearings/follow-ups, payment of per appearance fee of P3,000.00. Complainant paid the acceptance fee by issuing Respondent a check dated March 18, 2002 covering P20,000.00."Thereafter, Respondent caused the notary public whose seal appeared on the deed covering the sale of the subject property to sign the acknowledgment page thereof, advancing the notarial fee of P3,000.00 which Complainant failed to pay for which reason said notary did not sign said deed. On April 5, 2002, Complainant and Balaoro went to his office and signed the affidavit of adverse claim, which Respondent prepared. On the same date, Respondent requested Complainant and Balaoro to sign the civil complaint and criminal complaint against Mohammad which Respondent prepared but Complainant and Balaoro refused to sign because according to the latter two the residence of Mohammad in said complaints is already wrong since Mohammad's whereabouts are already unknown. Complainant and Balaoro promised to locate Mohammad's whereabouts and asked Respondent to wait for such data. Thereafter, Respondent even advised Complainant and Balaoro to locate Mohammad because resorting to the remedy of complaint and summons by publication is very expensive and should be resorted to only as a last recourse. Respondent adds that even as late as January 8, 2003, the civil and criminal complaints could not be filed because Complainant herself wanted Respondent to amend the pleadings by including an additional defendant or respondent and increasing the claim, for damages."Respondent further claims that he also extensively gave legal advise to Complainant with respect to the following matters: (1) Complainant's litigation against spouses Casido to recover her 10% retention in architect's fee; (2) collection of P800,000.00 indebtedness of one Mrs. Dizon; and (3) recovery of Complainant's investments in her 2001 and 2002 car transactions."Claiming that Complainant did not pay him any amount other than the P20,000.00 acceptance fee, Respondent argues that Complainant still owes him the following amounts: (1) the P3,000.00 he paid to the notary public to sign the acknowledgment page of the deed covering the sale of the subject property; (2) theP200 he spent in the notarization, registration and inscription of the affidavit of adverse claim; (3) theP15,000.00 attorney's fees agreed upon for accomplishing the first [phase] of Complainant's remedies relative to her problem with Mohammad; and (4) an additional P40,000.00 for the legal services he rendered with respect to Complainant's other problems. Respondent further claims that Complainant should pay him the costs relative to the filing of this administrative case."5
Report of the Investigating CommissionerIn the investigating commissioner's opinion, respondent had been remiss in attending to the cause of his client, in violation of Rules 18.03 and 18.04 of the Code of Professional Responsibility. Regarded as a mere afterthought was his defense that his failure to file the civil and the criminal complaints was the fault of complainant. It was noted that if she was indeed responsible for the non-filing of the complaints, he should have pointed out this fault at the earliest opportunity, which was in his April 4, 2003 letter. The commissioner further opined that this defense had been invoked only in respondent's letter dated July 14, 2003, after complainant demanded the return of the amounts she had paid.
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While likewise rejecting respondent's claim for unpaid legal fees amounting to P15,000, the commissioner upheld Balaoro's sworn testimony. It corroborated that of complainant, who had said that the only agreement between her and respondent was the acceptance fee of P20,000. His claim of P40,000 as consultation fee for the advice he had allegedly given her concerning other legal problems was also rejected for lack of evidence.Commissioner Villadolid then wrote the following recommendation:"x x x [T]his Commissioner finds that Respondent violated Canons 17 and 18 of the CPR and recommends a penalty of reprimand or suspension subject to the discretion of the Commission.Further, considering that it is established from the records that Respondent received a total of P48,000.00 from Complainant and that the only legal service rendered by Respondent consists of the notarization of the deed of sale covering the subject property and the filing of the adverse claim, this Commissioner believes that P8,000.00 is sufficient compensation for the services actually rendered and thus recommends that Respondent be ordered to pay Complainant P40,000.00 by way of restitution to Complainant."6
Acting on the above recommendation, the IBP board of governors approved on July 30, 2004, the following Resolution:"RESOLUTION NO. XVI-2004-386CBD Case No. 03-1141Marissa L. Macarilay vs.Atty. Felix B. SeriñaRESOLVED to ADOPT and APPROVE, as it is 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, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and for respondent's violation of Canons 17 and 18 of the Code of Professional Responsibility by his failure to exercise due diligence in protecting and attending to the interest of complainant after receiving payment for the legal services he was supposed to render, Atty. Felix B. Seriña is hereby SUSPENDED from the practice of law for six (6) months and Ordered to Pay complainant P40,000.00 by way of Restitution."7
The Court's RulingWe agree with the foregoing Resolution of the IBP board of governors.Administrative LiabilityA lawyer-client relationship is highly fiduciary in nature;8 it is delicate, exacting and confidential.9 It requires a high standard of conduct and demands utmost fidelity, candor, fairness, and good faith.10 The legal profession demands vigilance and attention expected of a "good father of a family."11 Lawyers should adopt the norm expected of people of good intentions. In brief, they must always be protective of the interests of their clients as good parents would be protective of their own families.12
Indeed, under their sacred oath, lawyers pledge not to delay any person for money or malice. They are bound to conduct themselves according to the best of their knowledge and discretion, with all good fidelity to their clients.13
These duties are further stressed in the Code of Professional Responsibility, specifically in the following pertinent provisions:"CANON 15 – A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his clients."CANON 16 – A lawyer shall hold in trust all moneys and properties of his client that may come into his possession.x x x x x x x x x"Rule 16.03 – A lawyer shall deliver the funds and property of his client when due or upon demand. x x x."CANON 17 – A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him."CANON 18 – A lawyer shall serve his client with competence and diligence.x x x x x x x x x
"Rule 18.03 – A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable."Rule 18.04 – A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the client's request for information."Admittedly, respondent received the amount of P20,000 as acceptance fee for the cases he had agreed to file on behalf of complainant. Plainly, he was less than candid in his dealings with his client; he displayed lack of honesty and fidelity to her cause. Sufficiently established were the following acts: (1) despite his receipt on May 16, 2002, of P20,000 for filing fees, he did not file the cases he had agreed to handle; (2) he deceived complainant when he lied by saying that a civil complaint had been filed in the sala of one "Judge Regala" of the Regional Trial Court of Quezon City; (3) respondent refused to return the money he had received for the filing fees. These misrepresentations, lies and lapses constituted a breach of his sworn duty as a lawyer and of the ethical standards he was required to honor and observe.Lawyers owe full devotion to the protection of the interests of their clients, as well as warmth and zeal in the defense of the latter's rights.14 Once they agree to handle a case, lawyers are bound to give to it their utmost attention, skill and competence, regardless of its significance.15 Public interest requires that they exert their best efforts and use all their learning and ability in the speedy prosecution or defense of the client's cause.16 Those who perform that duty with diligence and candor not only safeguard the interests of the client, but also serve the ends of justice.17 They do honor to the bar and help maintain the community's respect for the legal profession.18
Moreover, the lawyer-client relationship, being one of confidence, requires lawyers to give the client timely, adequate and truthful updates on the developments of the case.19 In this manner, the trust and faith of clients in their counsel would remain unimpaired.Indeed, respondent neglected a legal matter entrusted to him by failing to file the complaints as he was supposed to. Unbelievable is his claim that the complaints were ready as early as April 5, 2002, but that these were not filed anyway because complainant had refused to sign them, absent the correct address of the defendant (Albaria Mohammad).First, evidence abound that it was complainant who was insistent that the cases be filed. She repeatedly inquired about the case, but respondent would not give her any clear answer. Later on, he lied to her by saying that the complaint was pending in the sala of one Judge Regala. His deception on top of his failure to file the cases were raised in the letter dated March 26, 2003,20 written by Atty. Noel Sorreda, her new counsel. In his April 4, 2003 reply,21 respondent did not mention anything about the complaints that had allegedly been prepared as early as April 5, 2002. Commissioner Villadolid aptly observed in his Report:"x x x The fact that respondent's 4 April 2003 letter-response to said letter, as well as respondent's subsequent letter dated 23 May 2003, did not contain either gives further credence to complainant's version of the facts. Notably, it was only in respondent's letter dated 14 July 2003 that respondent raised such defenses for the first time. Considering that said 14 July 2003 letter was in response to complainant's 28 June 2003 letter demanding the return of certain amounts for legal services which complainant believed respondent did not render, this Commissioner is inclined to believe that such defenses are mere afterthought to defeat complainant's claim for the return of said amounts."Were it not for the vigilance of complainant in inquiring about the status of her cases, she would not have known that the complaints had not been filed at all. Respondent deliberately withheld informing her of his inaction, notwithstanding her repeated follow-ups. Thus, he is deemed to have wronged her and effectively betrayed the trust she had placed in him.Second, his alleged lack of knowledge of the correct address of the defendant is not a hindrance to the filing of a complaint. Indeed, such address is material to the service of summons22 which, however, presupposes that a complaint has been properly filed in court. Furthermore, Section 14 of Rule 14 of the Rules of Court23 provides for remedies when the defendant's address is unknown. Thus, respondent should have nevertheless filed the complaint, especially because complainant had already given him payment for the filing fees. His attempt to cover up his negligence by wrongfully shifting the blame to her cannot be countenanced by this Court.
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Finally, respondent should have returned the money to complainant following his failure to file the cases.24 Where the client gives money to the lawyer for a specific purpose -- such as to file an action or to appeal an adverse judgment -- the latter should, upon failure to do so, immediately return it to the former.25 The unjustified withholding of funds belonging to the client warrants the imposition of disciplinary action against the lawyer.26
It was sufficiently proven that, all in all, complainant had paid respondent P48,000:"Similarly, a review of the records reveals that contrary to Respondent's claim, in addition to the P20,000.00 covered by the check dated 18 March 2002 which complainant paid during the parties' initial meeting, complainant made subsequent payments to respondent. Balaoro confirms that when she and complainant went back to respondent's office on 5 April 2002, complainant paid respondent P3,000.00 and P5,000.00 in cash. Another P20,000.00 was likewise paid to respondent as evidenced by the RCBC check dated 16 May 2002 issued by complainant to respondent."27
Likewise established was the obvious fact that the only legal service rendered by respondent consisted of the notarization of the Deed of Sale covering the property purchased by complainant and the filing of the adverse claim. We agree with Commissioner Villadolid that P8,000 was sufficient compensation for the services actually rendered. Hence, respondent must return to complainant the balance of P40,000 plus legal interest.The failure of respondent to discharge his duty properly constitutes an infringement of ethical standards and of his oath. Such failure makes him answerable not just to his client, but also to this Court, to the legal profession, and to the general public.28 The recommended penalty of suspension from the practice of law for six months is in accordance with jurisprudence.29
WHEREFORE, Atty. Felix B. Seriña is found GUILTY of violating Canons 15, 16, 17 and 18 of the Code of Professional Responsibility and is hereby SUSPENDED from the practice of law for a period of six (6) months, effective upon his receipt of this Decision. He is further ORDERED to return to Marissa L. Macarilay, within thirty (30) days from notice, the amount of P40,000, with interest at 6 percent per annum from May 16, 2002, until full payment. Let copies of this Decision be furnished all courts as well as the Office of the Bar Confidant, which is instructed to include a copy in respondent's personal file.SO ORDERED. CBD A.C. No. 313 January 30, 1998ATTY. AUGUSTO G. NAVARRO, for and in behalf of PAN-ASIA INTERNATIONAL COMMODITIES, INC., complainant, vs.ATTY. ROSENDO MENESES III, respondent. PER CURIAM:This administrative case against respondent Atty. Rosendo Meneses III was initiated by a complaint-affidavit 1 filed by Atty. Augusto G. Navarro on June 7, 1994 before the Commission on Bar Discipline of the Integrated Bar of the Philippines (hereinafter, the Commission), for and in behalf of Pan-Asia International Commodities, Inc. Herein complainant charges respondent Meneses with the following offenses, viz.: (1) malpractice and gross misconduct unbecoming a public defender; (2) dereliction of duty, by violating his oath to do everything within his power to protect his client's interest; (3) willful abandonment; and (4) loss of trust and confidence, due to his continued failure to account for the amount of P50,000.00 entrusted to him to be paid to a certain complainant for the amicable settlement of a pending case. 2
The complaint-affidavit alleged that Frankwell Management and Consultant, Inc., a group of companies which includes Pan-Asia International Commodities, Inc., through its Administrative Manager Estrellita Valdez, engaged the legal services of respondent Atty. Meneses. While serving as such counsel, Atty. Meneses handled various cases and was properly compensated by his client in accordance with their retainer agreement. 3 One of the litigations handled by him was the case of "People vs. Lai Chan Kow, a.k.a. Wilson Lai, and Arthur Bretaña," pending before Branch 134, Regional Trial Court of Makati. On December 24, 1993, respondent received the sum of P50,000.00 from Arthur Bretaña, the accused in said case, to be given to therein offended party, a certain
Gleason, as consideration for an out-of-court settlement and with the understanding that a motion to dismiss the case would be filed by respondent Meneses.Despite subsequent repeated requests, respondent failed to present to his client the receipt acknowledging that Gleason received said amount. A verification made with the Regional Trial Court of Makati revealed that no motion to dismiss or any pleading in connection therewith had been filed, and the supposed amicable settlement was not finalized and concluded. Despite repeated demands in writing or by telephone for an explanation, as well as the turnover of all documents pertaining to the aforementioned case, respondent Meneses deliberately ignored the pleas of herein complainant.The case was assigned by the Commission to Commissioner Victor C. Fernandez for investigation. Respondent was thereafter ordered to submithis answer to the complaint pursuant to Section 5, Rule 139-B of the Rules of Court. 4 Two successiveex parte motions for extension of time to file an answer were filed by respondent and granted by the Commission. 5 On November 14, 1994, respondent filed a motion to dismiss, 6 instead of an answer.In said motion, respondent argued that Atty. Navarro had no legal personality to sue him for and in behalf of Pan-Asia International Commodities, Inc. because his legal services were retained by Frankwell Management and Consultant, Inc.; that Navarro had not represented Pan-Asia International Commodities, Inc. in any case nor had he been authorized by its board of directors to file this disbarment case against respondent; that the retainer agreement between him and Frankwell Management and Consultant, Inc. had been terminated as of December 31, 1993 according to the verbal advice of its Administrative Officer Estrellita Valdez; that the case of Arthur Bretaña was not part of their retainer agreement, and Bretaña was not an employee of Frankwell Management and Consultant, Inc. which retained him as its legal counsel; and that the settlement of said case cannot be concluded because the same was archived and accused Bretaña is presently out of the country.Herein complainant, in his opposition to the motion to dismiss, 7 stresses that respondent Meneses is resorting to technicalities to evade the issue of his failure to account for the amount of P50,000.00 entrusted to him; that respondent's arguments in his motion to dismiss were all designed to mislead the Commission; and that he was fully aware of the interrelationship of the two corporations and always coordinated his legal work with Estrellita Valdez.On November 28, 1994, Investigating Commissioner Victor C. Fernandez resolved to deny said motion to dismiss for lack of merit and directed respondent to file his answer. 8 On January 2, 1995, respondent filed a manifestation that he was adopting the allegations in his motion to dismiss as his answer. 9 When the case was set for hearing on February 9, 1995, respondent failed to attend despite due notice. He thereafter moved to postpone and reset the hearing of the case several times allegedly due to problems with his health.On the scheduled hearing of June 15, 1995, respondent again failed to attend. The commissioner accordingly received ex parte the testimony of complainant's sole witness, Estrellita Valdez, and other documentary evidence. 10 Thereafter, complainant rested its case. Respondent filed a so-called "Urgent Ex-parte Motion for Reconsideration with Motion to Recall Complainant's Witness for Cross-examination" 11 which was granted by the Commission. 12 Estrellita Valdez was directed by the Commission to appear on the scheduled hearing for cross-examination.Several postponements and resetting of hearings were later requested and granted by the Commission. When the case was set for hearing for the last time on May 31, 1996, respondent failed to attend despite due notice and repeated warnings. Consequently, the Commission considered him to have waived his right to present evidence in his defense and declared the case submitted for resolution. 13
On February 4, 1997, the Commission on Bar Discipline, through its Investigating Commissioner Victor C. Fernandez, submitted its Report and Recommendation 14 to the Board of Governors of the Integrated Bar of the Philippines. The Commission ruled that the refusal and/or failure of respondent to account for the sum of P50,000.00 he received from complainant for the settlement of the aforestated case of Lai Chan Kow and Arthur Bretaña proves beyond any shadow of a doubt that he misappropriated the same, hence he deserved to be penalized.
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The Commission recommended that respondent Meneses he suspended from the practice of the legal profession for a period of three (3) years and directed to return the P50,000.00 he received from the petitioner within fifteen (15) days from notice of the resolution. It further provided that failure on his part to comply with such requirement would result in his disbarment. 15 The Board of Governors adopted and approved the report and recommendation of the Investigating Commissioner in its Resolution No. XII-97-133, dated July 26, 1997. 16
On August 15, 1997, the Court received the Notice of Resolution, the Report and Recommendation of the Investigating Commissioner, and the records of this case through the Office of the Bar Confidant for final action pursuant to Section 12 (b) of Rule 139-B. 17 It appears therefrom that respondent was duly furnished a copy of said resolution, with the investigating commissioner's report and recommendation annexed thereto.The Court agrees with the findings and conclusion of the Integrated Bar of the Philippines that respondent Meneses misappropriated the money entrusted to him and which he has failed and/or refused to account for to his client despite repeated demands therefor. Such conduct on the part of respondent indicating his unfitness for the confidence and trust reposed on him, or showing such lackof personal honesty or of good moral character as to render him unworthy of public confidence, constitutes a ground for disciplinary action extending to disbarment. 18
Respondent Meneses' misconduct constitutes a gross violation of his oath as a lawyer which, inter alia, imposes upon every lawyer the duty to delay no man for money or malice. He blatantly disregarded Rule 16.01 of Canon 16 of the Code of Professional Responsibility which provides that a lawyer shall account for all money or property collected or received for or from his client. Respondent was merely holding in trust the money he received from his client to be used as consideration for the amicable settlement of a case he was handling. Since the amicable settlement did not materialize, he was necessarily under obligation to immediately return the money, as there is no showing that he has a lien over it. As a lawyer, he should be scrupulously careful in handling money entrusted to him in his professional capacity, because a high degree of fidelity and good faith on his part is exacted. 19
The argument of respondent that complainant has no legal personality to sue him is unavailing. Section 1, Rule 139-B of the Rules of Court provides that proceedings for the disbarment, suspension, or discipline of attorneys may be taken by the Supreme Court motu proprio or by the Integrated Bar of the Philippines upon the verified complaint of any person. The right to institute a disbarment proceeding is not confined to clients nor is it necessary that the person complaining suffered injury from the alleged wrongdoing. Disbarment proceedings are matters of public interest and the only basis for judgment is the proof or failure of proof of the charges. The evidence submitted by complainant before the Commission on Bar Discipline sufficed to sustain its resolution and recommended sanctions.It is settled that a lawyer is not obliged to act as counsel for every person who may wish to become his client. He has the right to decline employment 20 subject, however, to the provisions of Canon 14 of the Code of Professional Responsibility. 21 Once he agrees to take up the cause of a client, he owes fidelity to such cause and must always be mindful of the trust and confidence reposed on him. 22Respondent Meneses, as counsel, had the obligation to inform his client of the status of the case and to respond within a reasonable time to his client's request for information. Respondent's failure to communicate with his client by deliberately disregarding its requests for an audience or conference is an unjustifiable denial of its right to be fully informed of the developments in and the status of its case.On January 7, 1998, the Bar Confidant submitted to the Court a copy of the letter of Atty. Augusto G. Navarro, dated December 18, 1997, to the effect that although a copy of the aforestated Resolution No. XII-97-133 was personally delivered to respondent's address and received by his wife on October 9, 1997, he has failed to restitute the amount of P50,000.00 to complainant within the 15-day period provided therein. Neither has he filed with this Court any pleading or written indication of his having returned said amount to complainant. In line with the resolution in this case, his disbarment is consequently warranted and exigent.A note and advice on the penalty imposed in the resolution is in order. The dispositive portion thereof provides that:
. . . Respondent Atty. Rosendo Meneses is hereby SUSPENDED from the practice of law for three (3) years and is hereby directed to return the Fifty Thousand Pesos he received from the petitioner within fifteen (15) days from receipt of this resolution. Failure on his part to comply will result (i)n his DISBARMENT. 23
In other words, it effectively purports to impose either a 3-year suspension or disbarment, depending on whether or not respondent duly returns the amount to complainant. Viewed from another angle, it directs that he shall only be suspended, subject to the condition that he should make restitution as prescribed therein.Dispositions of this nature should be avoided. In the imposition of penalties in criminal cases, it has long been the rule that the penalty imposed in a judgment cannot be in the alternative, even if the law provides for alternative penalties, 24 nor can such penalty be subject to a condition. 25 There is no reason why such legal principles in penal law should not apply in administrative disciplinary actions which, as in this case, also involve punitive sanctions.Besides, if the purpose was to extenuate the liability of respondent, the only possible and equivalent rule is in malversation cases holding that the restitution of the peculated funds would be analogous to voluntary surrender if it was immediately and voluntarily made before the case was instituted. 26 That evidently is not the situation here. Also, the implementation of the penalty provided in the resolution will involve a cumbersome process since, in order to arrive at the final action to be taken by this Court, it will have to wait for a verified report on whether or not respondent complied with the condition subsequent.WHEREFORE, Atty. Rosendo Meneses III is hereby DISBARRED. Let a copy of this decision be attached to respondent's personal records in this Court and furnished the Integrated Bar of the Philippines, together with all courts in the country.SO ORDERED.[A.C. No. 5315. August 23, 2000]MODESTO CUNANAN, complainant, vs. ATTY. REX C. RIMORIN, respondent.D E C I S I O NDE LEON, JR., J.:The complainant Modesto Cunanan seeks the disbarment of respondent Atty. Rex C. Rimorin for allegedly embezzling funds which properly belong to the complainant.The facts, as culled from the records, are as follows:On or about August 2, 1997 complainant Cunanan, a retired U.S. citizen, engaged the professional services of respondent as a lawyer in the matter of settling his "overstaying alien status" (in the Philippines) with the Bureau of Immigration and Deportation (BID for brevity) so that he could attend to the funeral and burial needs of his son, Andrew Phillip Cunanan, in the United States. According to the complainant, he verbally agreed to pay the respondent a professional fee of P40,000.00 out of the P200,000.00 commitment of the ABS-CBN Broadcasting Corporation (ABS-CBN for brevity). Initially, however, complainant gave to the respondent the sum of P2,500.00 for his expenses.It appears that an agreement was entered into between complainant Cunanan assisted by his counsel, respondent herein, and ABS-CBN represented by Noli de Castro, regarding the story of his son, Andrew Cunanan, who died on July 23, 1997 in the United States. In consideration for an exclusive interview with the complainant, ABS-CBN agreed to pay to complainant Cunanan, as goodwill money and assistance for his planned trip to the United States, the total amount of P200,000.00. For the first partial payment, Noli de Castro, acting in behalf of ABS-CBN, issued a check intended for complainant Cunanan but per their verbal arrangement, it was made payable to complainant's counsel, herein respondent Atty. Rex C. Rimorin, more specifically a PCIBank Check No. 0827808 dated July 28, 1997 in the amount of P100,000.00.[1] To complete the payment of the agreed price of the interview, ABS-CBN deposited the balance in the amount of P100,000.00 in the bank account of respondent Atty. Rimorin with the Far East Bank and Trust Company per deposit slip dated July 29, 1997. [2] The interview of the complainant by Noli de Castro of ABS-CBN was done in the law office of the respondent in Baguio City.According to the Affidavit[3] executed by Noli de Castro of ABS-CBN, the two payments in the total amount of P200,000.00 were intended for complainant Cunanan although they were placed in the name of the respondent as lawyer for the complainant.
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Complainant Cunanan testified that the balance of the P200,000.00 was intended for the payment to the BID of his penalty for overstaying, as an alien, in the amount of P120,000.00 and for his plane tickets and travelling expenses to the United States in the amount of P40,000.00.[4]
On the other hand, according to the Counter-Affidavit[5] executed on October 29, 1997 by respondent Rimorin, the complainant assured him, prior to the said interview conducted by ABS-CBN in his law office, that the amount to be given as consideration for the interview of complainant would be split between the two of them. He also claimed that he never received a check from complainant for P100,000.00 on August 2, 1997 or a check for P100,000.00 on August 4, 1997 as contained in the Affidavit-Complaint. He, however, admits that Noli de Castro, in behalf of ABS-CBN, indeed handed to him a check for P100,000.00 on July 26, 1997 and another amount of P100,000.00 was deposited in his (respondent's) bank account.In a letter[6]dated August 8, 1997 sent by respondent to the complainant, the former advised the latter that "due to the rains there is no way of checking whether the check deposited by ABS-CBN has been cleared... I'll try my very best to produce the other P30,000.00 today and drive to Bulacan tomorrow for delivery." The complainant testified[7] that he indeed received the amount of P30,000.00 from respondent in Plaridel, Bulacan but after that, there was no more communication from respondent.Hence, complainant Cunanan filed the present administrative case with the IBP Commission on Bar Discipline praying for the disbarment of the respondent for swindling him and for failing to render any accounting of the P200,000.00 which respondent received, in trust for the complainant, from ABS-CBN represented by Noli de Castro.In his Answer, respondent states that the Affidavit-Complaint which Cunanan filed with the IBP Commission on Bar Discipline is exactly the same Affidavit-Complaint which he filed with the Office of the City Prosecutor of Baguio City on September 25, 1997 wherein complainant charged the respondent with Estafa. However, on December 5, 1997, the Office of the City Prosecutor issued a Resolution[8] dismissing the said Estafa case. Hence, respondent prays that the present administrative complaint against him be also dismissed.In the nine (9) scheduled hearings of this administrative case before the IBP Commission on Bar Discipline, only complainant and/or his counsel appeared. Respondent did not appear despite due notice. Hence, complainant was allowed to present his evidence ex-parte. The records show that respondent was given all the opportunity to attend the scheduled hearings, present evidence and substantiate his defense. However, respondent failed to do so.It is the finding of the IBP Commission on Bar Discipline that there is a need for an appropriate accounting of the P200,000.00 which respondent received in trust for his client, herein complainant, from the ABS-CBN represented by Noli de Castro, in accordance with Canon 16[9]and Rule 16.01[10] of the Code of Professional Responsibility.We agree with the said finding of the IBP Commission on Bar Discipline that there is a need for an appropriate accounting. The highly fiduciary and confidential relation of attorney and client require that respondent lawyer should promptly account for the said funds which he received and held for the benefit of his client, the herein complainant. That is because those funds properly belong to the client. The client has the right to know how the funds were applied, used or disbursed by his counsel. A lawyer should always keep in mind the welfare and interest of his client.From the time of the filing of the present administrative complaint on January 9, 1998 and up to the present, complainant's demand for an accounting has not been satisfied by respondent. This case has been set for hearing for over a year but respondent has not given any indication that he would render the accounting of funds as demanded by the complainant. The Answer of the respondent does not show how the P200,000.00 which was delivered to respondent, in trust for the complainant, by Noli de Castro representing ABS-CBN, was used. Complainant claims that except for the P30,000.00 cash given to him, respondent "fraudulently embezzled the funds." However, there is nothing in the record to show how the balance of P170,000.00 was applied or used, if it was used at all, by the respondent for the benefit of the complainant.It is established that those funds amounting to a total of P200,000.00 were received by respondent for the benefit of and in trust for the complainant, as corroborated by Noli de Castro of ABS-CBN in his Affidavit.
Complainant is entitled to know how the funds were used and applied. In the case at bar, there is no evidence to show how the funds were used and applied by respondent. It is clear, therefore, that respondent has fallen short of his duty as a lawyer under Canon 16 and Rule 16.01 of the Code of Professional Responsibility. Hence, respondent should be penalized accordingly.WHEREFORE, in view of the foregoing, respondent is hereby SUSPENDED from the practice of law for one (1) year. He is also hereby ordered to render, within twenty (20) days from notice hereof, an accounting of the P170,000.00 representing the balance of the sum of P200,000.00 which he received, in trust for complainant Modesto Cunanan, from ABS-CBN Broadcasting Corporation.Let a copy of this decision be entered in the personal record of respondent in the Office of the Bar Confidant, and copies thereof be furnished to the head office and Baguio City Chapter of the Integrated Bar of the Philippines.SO ORDERED.
A.C. No. 2884 January 28, 1998IRENE RAYOS-OMBAC, complainant, vs.ATTY. ORLANDO A. RAYOS, respondent. PUNO, J.:This case stemmed from a petition for disbarment filed with this Court by Mrs. Irene Rayos-Ombac against her nephew, Atty. Orlando A. Rayos, a legal practitioner in Metro Manila, for "his failure to adhere to the standards of mental and moral fitness set up for members of the bar." 1
The records show that in January 1985, respondent induced complainant who was then 85 years old to withdraw all her bank deposits and entrust them to him for safekeeping. Respondent told her that if she withdraws all her money in the bank, they will be excluded from the estate of her deceased husband and his other heirs will be precluded from inheriting part of it.Acting on respondent's suggestion, complainant preterminated all her time deposits with the Philippine National Bank on January 18, 1985. She withdrew P588,000.00.Respondent then advised complainant to deposit the money with Union Bank where he was working. He also urged her to deposit the money in his name to prevent the other heirs of her husband from tracing the same.Complainant heeded the advice of respondent. On January 22, 1985, respondent deposited the amount of P588,000.00 with Union Bank under the name of his wife in trust for seven beneficiaries, including his son. The maturity date of the time deposit was May 22, 1985.On May 21, 1985, complainant made a demand on respondent to return the P588,000.00 plus interest. Respondent told her that he has renewed the deposit for another month and promised to return the whole amount including interest on June 25, 1985. Respondent, however, failed to return the money on June 25, 1985.On August 16, 1985, respondent informed complainant that he could only return P400,000.00 to be paid on installment. Complainant acceded to respondent's proposal as she was already old and was in dire need of money.On the same date, respondent and complainant executed a memorandum of agreement stating:WHEREAS, on January 22, 1985, (complainant) entrusted for safekeeping to (respondent) the sum of FIVE HUNDRED EIGHTY EIGHT THOUSAND PESOS (P588,000.00) which sum of money was withdrawn by the parties from the Philippine National Bank on said date.WHEREAS, the said amount was deposited by (respondent) with the consent of (complainant) with the UNION BANK, J.P. Rizal Branch, Makati, Metro Manila.WHEREAS, upon mutual agreement of the parties, they have agreed as they hereby agree on the following terms for the purpose of disposing of the above sum, to wit:1. Of the sum of P588,000.00 received in trust, (respondent) shall return only the sum of P400,000.00 to (complainant) in the following manner:
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a) P100,000.00 upon execution of this agreement;b) P200,000.00 on or before October 19, 1985, to be covered by postdated check;c) P100,000.00 on or before November 19, 1985, to be covered by a postdated check.2. (Respondent) hereby undertakes and guarantees that at the time the aforesaid postdated checks fall due, the same should be backed up with sufficient funds on a best efforts basis.3. That the remaining balance of P188,000.00, (respondent) hereby acknowledges the same as his indebtedness to (complainant) to be paid by the former when able or at his option. (Complainant) however assures (respondent) that she will not institute any collection suit against (respondent) (sic), neither will she transmit the same by way of testamentary succession to her heirs, neither are (respondent's) heirs liable.4. That the parties have executed this agreement with the view of restoring their previous cordial filial relationship. 2
In accordance with the memorandum of agreement, respondent issued to complainant the following checks:1. UCPB Check No. 487974 dated August 19, 1985 in the amount of P100,000.00;2. UCPB Check No. 487975 dated October 19, 1985 in the amount of P200,000;3. UCPB Check No. 487976 dated November 19, 1985 in the amount of P100,000.00.Complainant was not able to encash UCPB Check No. 487974 as it was dishonored due to insufficient funds.Respondent, nonetheless, asserted that he was not duty-bound to fund the check because under paragraph 2 of the memorandum of agreement, he only guaranteed that the checks shall be "backed up with sufficient funds on a best efforts basis." This prompted the other relatives of respondent and complainant to intervene in the brewing dispute between the two. They begged respondent to pay his obligation to complainant. Heeding their plea, respondent replaced UCPB Check No. 487974 with two new checks, one for P64,800.00 and another for P35,200.00. Complainant was able to encash the first check but not the second because it was dishonored by the drawee bank. The remaining checks, UCPB Check No. 487975 and UCPB Check No. 487976, were likewise dishonored by the drawee bank for lack of funds.On November 15, 1985, complainant filed a complaint for estafa against respondent and a corresponding information was filed against him by the provincial fiscal.Respondent thereafter made a proposal to complainant for an amicable settlement. To pay his debt, respondent offered to complainant two second hand cars and cash amounting to P40,000.00. Complainant refused the offer because she needed cash to provide for her daily needs.The records also show that respondent filed several suits against complainant.First, in February 1985, respondent filed a criminal case for estafa against complainant. It appears that respondent has previously told the tenants of a parcel of land owned by complainant that she had promised to sell them the land and that she had authorized him to negotiate with them. He obtained from the tenants advance payment for the lots they were occupying. Respondent then prepared a special power of attorney 3 authorizing him to sell the land and asked complainant to sign it. Complainant, however, refused to sign because she did not intend to make respondent her attorney-in-fact. Hence, the tenants sued respondent for estafa. Respondent, in turn, sued complainant for estafa for allegedly reneging on her promise to sell the land.Then, on April 5, 1986, respondent filed a pleading entitled "Motion to Review Acts of Administratrix as a Prelude for Formal Motion to (sic) her Discharge" in Special Proceedings No. 5544 for the settlement of the estate of complainant's husband, pending before the Regional Trial Court of Lingayen, Pangasinan. 4 Respondent filed the pleading although he was not a party to the case.Finally, on May 19, 1986, respondent indicted complainant for "falsification by private individuals and use of falsified documents under Article 172 of the Revised Penal Code" for allegedly making untruthful statements in her petition for appointment as administratrix of the estate of her deceased husband. 5
Thus, in June 1986, complainant filed with this Court a complaint to disbar respondent on two grounds: (1) that respondent employed clever scheme to defraud complainant, and (2) that respondent filed frivolous cases against complainant to harass her.
Respondent subsequently filed a complaint for disbarment against complainant's counsel, Atty. Abelardo Viray. The complaint cited four causes of action: (1) assisting client to commit tax fraud; (2) use of unorthodox collection method; (3) ignorance of the law; and (4) subornation of perjury. 6
Both disbarment cases were consolidated and referred to the Office of the Solicitor General for investigation, report and recommendation.The cases were transferred to the Integrated Bar of the Philippines (IBP) for investigation and disposition pursuant to Section 20 Rule 139-B which took effect on June 1, 1988.After investigation, the Commission on Bar Discipline of the IBP recommended the suspension of respondent from the practice of law for two years. It also recommended the dismissal of the complaint to disbar Atty. Viray for lack of merit. 7
On January 27, 1996, the Board of Governors of the IBP passed Resolution No. XII-96-22 stating:RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner in the above entitled case, hereinmade part of this Resolution/Decision as Annex "A"; and, finding the recommendation therein to be supported by the evidence on record and the applicable laws and rules, Respondent Atty. Orlando A. Rayos is hereby SUSPENDED from the practice of law for two (2) years and the complaint against Atty. Abelardo V. Viray is hereby DISMISSED for lack of merit. 8
On June 6, 1996, respondent filed a Motion for Reconsideration with regard to Administrative Case No. 2884. 9The Board of Governors of the IBP, however, denied the motion in Resolution No. XII-96-193. 10
On September 15, 1997, respondent filed with this Court a Motion to Lift Suspension for Two Years, alleging that complainant has executed an affidavit withdrawing the complaint for disbarment. 11
We deny the motion of respondent.Rule 1.01 of the Code of Professional Responsibility states:A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.Rule 1.03 of the same Code, on the other hand, provides:A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or delay any man's cause.Respondent violated the Code of Professional Responsibility, as well as his oath as an attorney when he deceived his 85-year old aunt into entrusting to him all her money, and later refused to return the same despite demand. Respondent's wicked deed was aggravated by the series of unfounded suits he filed against complainant to compel her to withdraw the disbarment case she filed against him. Indeed, respondent's deceitful conduct makes him unworthy of membership in the legal profession. The nature of the office of a lawyer requires that he shall be of good moral character. This qualification is not only a condition precedent to admission to the legal profession, but its continued possession is essential to maintain one's good standing in the profession. 12
Considering the depravity of respondent's offense, we find the penalty recommended by the IBP to be too mild. Such offense calls for the severance of respondent's privilege to practice law not only for two years, but for life.The affidavit of withdrawal of the disbarment case allegedly executed by complainant does not, in any way, exonerate the respondent. A case of suspension or disbarment may proceed regardless of interest or lack of interest of the complainant. What matters is whether, on the basis of the facts borne out by the record, the charge of deceit and grossly immoral conduct has been duly proven. 13 This rule is premised on the nature of disciplinary proceedings. A proceeding for suspension or disbarment is not in any sense a civil action where the complainant is a plaintiff and the respondent lawyer is a defendant. Disciplinary proceedings involve no private interest and afford no redress for private grievance. They are undertaken and prosecuted solely for the public welfare. They are undertaken for the purpose of preserving courts of justice from the official ministration of persons unfit to practice in them. The attorney is called to answer to the court for his conduct as an officer of the court. The complainant or the person who called the attention of the court to the attorney's alleged misconduct is in no sense a party, and has generally no interest in the outcome except as all good citizens may have in the proper administration of justice. 14 Hence, if the evidence on record warrants, the respondent may be suspended or disbarred despite the desistance of complainant or his withdrawal of the charges. In the instant case, it has
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been sufficiently proved that respondent has engaged in deceitful conduct, in violation of the Code of Professional Responsibility.IN VIEW WHEREOF, respondent is hereby DISBARRED. Let a copy of this decision be attached to respondent's record in the Bar Confidant's Office and furnished the IBP and all our courts.SO ORDERED.EN BANCA.C. No. 7418 October 9, 2007ANDREA BALCE CELAJE, complainant, vs.ATTY. SANTIAGO C. SORIANO, respondent.R E S O L U T I O NAUSTRIA-MARTINEZ, J.:Before this Court is a disbarment case filed against Atty. Santiago C. Soriano (respondent) for gross misconduct.In the Complaint dated June 1, 2005 filed before the Integrated Bar of the Philippines (IBP), Andrea Balce Celaje (complainant) alleged that respondent asked for money to be put up as an injunction bond, which complainant found out later, however, to be unnecessary as the application for the writ was denied by the trial court. Respondent also asked for money on several occasions allegedly to spend for or to be given to the judge handling their case, Judge Milagros Quijano, of the Regional Trial Court, Iriga City, Branch 36. When complainant approached Judge Quijano and asked whether what respondent was saying was true, Judge Quijano outrightly denied the allegations and advised her to file an administrative case against respondent.1
In his Answer, respondent denied the charges against him and averred that the same were merely concocted by complainant to destroy his character. He also contended that it was complainant who boasted that she is a professional fixer in administrative agencies as well as in the judiciary; and that complainant promised to pay him large amounts of attorney's fees which complainant however did not keep.2
Both parties appeared in the Mandatory Conference and Hearing on January 18, 2006. Thereafter, the case was submitted for decision.3
In the Report and Recommendation dated January 24, 2006, IBP-Commission on Bar Discipline Commissioner Dennis A.B. Funa found respondent guilty of Gross Misconduct in his relations with his client and recommended that respondent be suspended for three years from the practice of law.4
In the Report, Commissioner Funa found that:During the hearing conducted, Complainant alleged that she has remitted to Respondent, on various dates, amounts of money totaling to more or less P270,000.00.According to Complainant the amounts given in several instances were all undocumented and not acknowledged in writing.However, for the alleged amount of P14,000.00 intended for an injunction bond, some documents in writing were made.x x x xWhile the amounts remitted by Complainant to Respondent were never acknowledged in writing and were not documented, due credence must be given to Complainant's allegations especially over the amount ofP14,800.00 intended for the injunction. Indeed, there is no ill-motive at all on the part of Complainant to fabricate charges against Respondent. Unfortunately, none of the P270,000.00 given by Complainant to Respondent was ever documented and therefore accuracy of the amounts could not be established and substantiated.What has been documented only pertains to the unpaid P5,800.00 intended for the injunction bond. However, it has been established that indeed an accumulated amount of P9,000.00 has been remitted by Respondent to Valentina Ramos and only the unpaid P5,800.00 remains unaccounted for by the Respondent.During the hearing conducted, Complainant reiterated her accusations against the Respondent and expressed that she has been aggrieved and misled by Respondent. According to Complainant, this was made possible because she was not aware of or knowledgeable on legal matters and practices. Respondent has only offered
denials to the charges. However, the circumstances gives credibility to herein Complainant in the absence of any evil motive on her part.Accordingly, Respondent is clearly guilty of misappropriating his client's funds in the amount of P5,800.00.While other amounts may have been misappropriated, Complainant alleges P270,000.00, the exactness of the amounts could not be established.Respondent is also guilty of deceiving his client and abusing his client's confidence in requesting for several amounts of money on the pretense that he had to spend for and pay the trial judge.Respondent is hereby ORDERED to immediately deliver the unaccounted for amount of Five Thousand Eight Hundred Pesos (P5,800.00) to Complainant, submitting a Compliance Report thereon.5
On September 8, 2006, the Board of Governors of the IBP passed a Resolution thus:RESOLVED to ADOPT and Approve, as it is 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, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering that Respondent is guilty of gross misconduct for misappropriating his client's funds, Atty. Santiago C. Soriano is hereby SUSPENDED from the practice of law for two (2) years and likewise Ordered to immediately deliver that unaccounted amount of P5,800.00 to complainant.6
The IBP transmitted the Notice of Resolution issued by the IBP Board of Governors as well as the records of the case, pursuant to Rule 139-B.7 Then in compliance with the Court's Resolution dated February 20, 2007, the IBP through Director for Discipline Rogelio Vinluan informed the Court that per records of the IBP, no Motion for Reconsideration was filed by either party.The Court agrees with the IBP Resolution.The Code of Professional Responsibility (CPR), particularly Canon 16 thereof, mandates that a lawyer shall hold in trust all moneys and properties of his client that may come into his possession. He shall account for all money or property collected or received from his client8 and shall deliver the funds and property of his client when due or upon demand.9
As found by Commissioner Funa, it was established that respondent could not account for P5,800.00 which was part of the sum given by complainant to him for the purpose of filing an injunctive bond. Respondent admitted having received from complainant P17,800.00 on April 19, 2002 for the preliminary injunction10 and admitted to having a balance of P9,000.00 in his promissory note to the Manila Insurance Co., Inc. dated April 23, 2002, which was reduced to P5,800.00 by reason of an additional payment of P4,000.00,11 leaving an amount of P5,800.00 unaccounted for. The affidavit of the insurance agent, Valentina Ramos, dated December 8, 2005 also states that even up to said date, respondent had not yet paid the balance of P5,800.00.12
Respondent's failure to return the money to complainant upon demand gave rise to the presumption that he misappropriated it for his own use to the prejudice of, and in violation of the trust reposed in him by his client.13 It is a gross violation of general morality and of professional ethics and impairs public confidence in the legal profession which deserves punishment.14
As the Court has pronounced, when a lawyer receives money from the client for a particular purpose, the lawyer is bound to render an accounting to the client showing that the money was spent for a particular purpose. And if he does not use the money for the intended purpose, the lawyer must immediately return the money to his client.15
The Court has been exacting in its demand for integrity and good moral character of members of the Bar who are expected at all times to uphold the integrity and dignity of the legal profession and refrain from any act or omission which might lessen the trust and confidence reposed by the public in the fidelity, honesty, and integrity of the legal profession. Indeed, membership in the legal profession is a privilege.16 The attorney-client relationship is highly fiduciary in nature. As such, it requires utmost good faith, loyalty, fidelity and disinterestedness on the part of the lawyer.17
In Small v. Banares18 the respondent was suspended for two years for violating Canon 16 of the CPR, particularly for failing to file a case for which the amount of P80,000.00 was given him by his client, and for failing to return
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the said amount upon demand. Considering that similar circumstances are attendant in this case, the Court finds the Resolution of the IBP imposing on respondent a two-year suspension to be in order.WHEREFORE, respondent Atty. Santiago C. Soriano is found GUILTY of violating Canon 16 of the Code of Professional Responsibility and is hereby SUSPENDED from the practice of law for a period of two (2) years from notice, with a STERN WARNING that a repetition of the same or similar acts shall be dealt with more severely.Respondent is further ordered to restitute to his clients through Andrea Balce Celaje, within 30 days from notice, the amount of P5,800.00. Respondent is directed to submit to the Court proof of payment within fifteen days from payment of the full amount.Let copies of this Resolution be furnished all courts of the land, the Integrated Bar of the Philippines, as well as the Office of the Bar Confidant for their information and guidance, and let it be entered in respondent's record in this Court.SO ORDERED.
A.C. No. 7657 February 12, 2008VIVIAN VILLANUEVA, petitioner, vs.ATTY. CORNELIUS M. GONZALES, respondent.D E C I S I O NCARPIO, J.:The CaseThis is a complaint Vivian Villanueva (complainant) filed against Atty. Cornelius M. Gonzales (respondent) for failure to render legal services and failure to return the money, Transfer Certificate of Title (TCT), and other documents he received from complainant.The FactsSometime in 2000, complainant engaged the services of respondent for the purpose of transferring the title over a piece of property located in Talisay, Cebu. Complainant, as mortgagee, wanted to transfer the title to her name because the mortgagor failed to redeem the property within the redemption period and the sheriff had already issued a sheriff’s definite deed of sale in complainant’s favor. Complainant gave respondent P8,000 as acceptance fee, the property’s TCT, and other pertinent documents.1
After receiving the money, TCT, and other documents, respondent began to avoid complainant. Whenever complainant went to respondent’s office at BPI Building, Escario St., Cebu City, respondent’s secretary would tell her that respondent could not be disturbed because he was either sleeping or doing something important.2
In a letter dated 2 July 2003,3 complainant told respondent that she had lost her trust and confidence in him and asked him to return the P8,000, TCT, and other documents. Respondent refused to return the money, TCT, and other documents. After some time and after complainant’s daughter confronted him, respondent finally returned the money. However, until now, respondent has not returned the TCT and other documents.4 Thus, complainant filed a complaint5 dated 10 September 2003 against respondent before the Integrated Bar of the Philippines (IBP).In an Order6 dated 7 October 2003, IBP Director for Bar Discipline Rogelio A. Vinluan ordered respondent to submit his answer to the complaint. Respondent did not submit an answer.7 In an Order8 dated 21 April 2004, IBP Commissioner for Bar Discipline Rebecca Villanueva-Maala ordered respondent to submit his answer to the complaint, and set the mandatory conference on 2 June 2004. Respondent did not submit an answer or attend the mandatory conference. The Commission on Bar Discipline considered the case submitted for resolution.9
The IBP’s Report and RecommendationsIn a Report10 dated 27 October 2006, IBP Commissioner for Bar Discipline Caesar R. Dulay (Commissioner Dulay) found respondent guilty of misconduct and negligent behavior: (1) he failed to perform any legal service to his client, (2) he did not inform his client about the status of the case, (3) he returned the P8,000 acceptance fee without any explanation, and (4) he was indifferent. Commissioner Dulay found that respondent violated Canons
16 and 18 of the Code of Professional Responsibility and recommended his suspension from the practice of law for one year.In a Resolution11 dated 31 May 2007, the IBP Board of Governors (IBP Board) adopted and approved the Report dated 27 October 2006 with modification. The IBP Board suspended respondent from the practice of law for six months and ordered him to return to complainant the P2,000, TCT, and the other documents.As provided in Section 12(b), Rule 139-B of the Rules of Court,12 the IBP Board forwarded the instant case to the Court for final action.The Court’s RulingThe Court sustains the findings and recommendations of the IBP with modification. Respondent violated Canons 16, 17, and 18, and Rules 16.01, 16.03, 18.03, and 18.04 of the Code of Professional Responsibility.Respondent Refused to Account forand Return His Client’s MoneyCanon 16 states that a lawyer shall hold in trust all moneys of his client that may come into his possession. Rule 16.01 of the Code states that a lawyer shall account for all money received from the client. Rule 16.03 of the Code states that a lawyer shall deliver the funds of his client when due or upon demand.In Meneses v. Macalino,13 the Court held that "if [a] lawyer does not use the money for the intended purpose, the lawyer must immediately return the money to the client." In the instant case, respondent demanded P10,000 and received P8,000 as acceptance fee. Since he did not render any legal service, he should have promptlyaccounted for and returned the money to complainant.14 He did not.After receiving the money, respondent began to avoid complainant. He asked his secretary to lie to complainant and shoo her off. When complainant demanded for the return of the money after three years of not hearing from respondent, respondent opted to ignore the demand. Respondent only returned the money after complainant’s daughter confronted him. If complainant’s daughter had not persisted, respondent would not have returned the money. Respondent did not offer any explanation as to why he waited for three years to lapse before returning the money. In Macarilay v. Seriña,15 the Court held that "[t]he unjustified withholding of funds belonging to the client warrants the imposition of disciplinary action against the lawyer."Respondent’s failure to immediately account for and return the money when due and upon demand violated the trust reposed in him, demonstrated his lack of integrity16 and moral soundness,17 and warrants the imposition of disciplinary action.18 It gave rise to the presumption that he converted the money to his own use and constituted a gross violation of professional ethics and a betrayal of public confidence in the legal profession.19
Respondent Refuses to ReturnHis Client’s TCT and Other DocumentsCanon 16 of the Code of Professional Responsibility states that a lawyer shall hold in trust all properties of his client that may come into his possession. Rule 16.03 of the Code states that a lawyer shall deliver the property of his client when due or upon demand.The TCT and other documents are the properties of complainant. Since respondent did not render any legal service to complainant, he should have returned complainant’s properties to her. However, he refuses without any explanation to return them. Respondent has kept the TCT and other documents in his possession since 2000. He refuses to return them despite receiving a written demand and being confronted by complainant’s daughter. InVda. De Enriquez v. San Jose,20 the Court held that failure to return the documents to the client is reprehensible: "this Court finds reprehensible respondent’s failure to heed the request of his client for the return of the case documents. That respondent gave no reasonable explanation for that failure makes his neglect patent."Respondent Failed to Serve His Clientwith Fidelity, Competence, and DiligenceCanon 17 of the Code of Professional Responsibility states that a lawyer owes fidelity to the cause of his client. Canon 18 of the Code states that "[a] lawyer shall serve his client with competence and diligence." Rule 18.03 of the Code states that "[a] lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable."
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Clearly, respondent did not serve complainant with fidelity, competence, or diligence. He totally neglected complainant’s cause. An attorney-client relationship between respondent and complainant was established when respondent accepted the acceptance fee. Since then, he should have exercised due diligence in furthering his client’s cause and given it his full attention.21 Respondent did not render any service.Once a lawyer agrees to handle a case, he is bound by the Canons of the Code of Professional Responsibility. InEmiliano Court Townhouses v. Atty. Dioneda,22 the Court held that the act of receiving money as acceptance fee for legal services and subsequently failing to render such service is a clear violation of Canons 17 and 18.Respondent Did Not Keep His Client Informedof the Status of Her Case and Refused to Respondto Her Requests for InformationRule 18.04 of the Code of Professional Responsibility states that "[a] lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the client’s request for information."Respondent avoided complainant for three years and kept her in the dark. He did not give her any information about the status of her case or respond to her request for information. After giving the money, complainant never heard from respondent again. Complainant went to respondent’s office several times to request for information. Every time, respondent avoided complainant and gave her the run-around. In her affidavit, complainant stated that:I often visited him in his office to make a [follow up] of the progress of the transfer x x x only [to be] told by his secretary that he [was] sleeping and not to be disturbed or [was] doing something important;x x x For three agonizing years, I x x x never received a feedback from Atty. Gonzales so much so that I was forced [to write him] a letter which up to present remain[s] unanswered[.]23 (Emphasis ours)Respondent unjustifiably denied complainant of her right to be fully informed of the status of her case, and disregarded his duties as a lawyer.24
Respondent Did Not File an Answer orAttend the Mandatory Hearing Before the IBPRespondent’s repeated failure to file an answer to the complaint and to appear at the 2 June 2004 mandatory conference aggravate his misconduct. These demonstrate his high degree of irresponsibility25 and lack of respect for the IBP and its proceedings.26 His attitude stains the nobility of the legal profession.27
On the Appropriate PenaltyThe appropriate penalty on an errant lawyer depends on the exercise of sound judicial discretion based on the surrounding facts.28 The Court finds the recommended penalty inadequate. In Rollon,29 the Court suspended a lawyer from the practice of law for two years for failing to render any legal service after receiving money and for failing to return the money and documents he received. In that case, the Court held that:The circumstances of this case indubitably show that after receiving the amount of P8,000 as x x x partial service fee, respondent failed to render any legal service in relation to the case of complainant. His continuous inaction despite repeated follow-ups from her reveals his cavalier attitude and appalling indifference toward his client’s cause, in brazen disregard of his duties as a lawyer. Not only that. Despite her repeated demands, he also unjustifiably failed to return to her the files of the case that had been entrusted to him. To top it all, he kept the money she had likewise entrusted to him.30
In Small,31 the Court suspended a lawyer from the practice of law for two years for failing to render any legal service after receiving money, failing to inform his client of the status of the case, and failing to promptly account for and return the money he received.The Court notes that respondent does not have to return any amount to complainant. Complainant gave respondent only P8,000, not P10,000, and respondent has returned the total amount he received. As stated in complainant’s affidavit:For the legal service[s] sought, Atty. Gonzales asked an acceptance fee of P10,000 to which I gave himP8,000 together with the pertinent [mortgage] documents needed by him for the transfer including the Transfer Certificate of Title;x x x x
[D]ue to the persistence of my daughter, Lurina Villanueva, Atty. Gonzales returned the acceptance fee of P8,000 on August 5, 2003 but never returned the documents mentioned in my letter.32 (Emphasis ours)Lawyers are expected to always live up to the standards embodied in the Code of Professional Responsibility because an attorney-client relationship is highly fiduciary in nature and demands utmost fidelity and good faith. Those who violate the Code must be disciplined.33 Respondent failed to live up to these standards.WHEREFORE, the Court finds respondent Atty. Cornelius M. Gonzales GUILTY of violating Canons 16, 17, and 18, and Rules 16.01, 16.03, 18.03, and 18.04 of the Code of Professional Responsibility. Accordingly, the CourtSUSPENDS him from the practice of law for two years effective upon finality of this Decision, ORDERS him toRETURN the TCT and all other documents to complainant within 15 days from notice of this Decision, and WARNShim that a repetition of the same or similar offense, including the failure to return the TCT and all other documents as required herein, shall be dealt with more severely.Let copies of this Decision be furnished the Office of the Bar Confidant, to be appended to respondent’s personal record as attorney. Likewise, copies shall be furnished to the Integrated Bar of the Philippines and all courts in the country for their information and guidance.SO ORDERED.A.C. No. 8159 April 23, 2010(Formerly CBD 05-1452)REYNARIA BARCENAS, Complainant, vs.ATTY. ANORLITO A. ALVERO, Respondent.D E C I S I O NPERALTA, J.:Before us is a Complaint1 dated May 17, 2005 for disciplinary action against respondent Atty. Anorlito A. Alvero filed by Reynaria Barcenas with the Integrated Bar of the Philippines-Commission on Bar Discipline (IBP-CBD), docketed as CBD Case No. 05-1452, now Administrative Case (A.C.) No. 8159.The facts as culled from the records are as follows:On May 7, 2004, Barcenas, through her employee Rodolfo San Antonio (San Antonio), entrusted to Atty. Alvero the amount of P300,000.00, which the latter was supposed to give to a certain Amanda Gasta to redeem the rights of his deceased father as tenant of a ricefield located in Barangay San Benito, Victoria, Laguna. The receipt of the money was evidenced by an acknowledgment receipt2 dated May 7, 2004. In the said receipt, Atty. Alvero said that he would deposit the money in court because Amanda Gasta refused to accept the same.3
Later, Barcenas found out that Atty. Alvero was losing a lot of money in cockfights. To check if the money they gave Atty. Alvero was still intact, Barcenas pretended to borrow P80,000.00 from the P300,000.00 and promised to return the amount when needed or as soon as the case was set for hearing. However, Atty. Alvero allegedly replied, "Akala nyo ba ay madali kunin ang pera pag nasa korte na?" Subsequently, Barcenas discovered that Atty. Alvero did not deposit the money in court, but instead converted and used the same for his personal needs.In his letters dated August 18, 20044 and August 25, 2004,5 Atty. Atty. Alvero admitted the receipt of theP300,000.00 and promised to return the money. The pertinent portions of said letters are quoted as follows:Dahil sa kagustuhan ng iyong amo na maibalik ko ang perang tinanggap ko sa iyo, lumakad ako agad at pilit kong kinukuha kahit iyon man lang na hiniram sa akin na P80,000.00 pero hindi karakapraka ang lumikom ng gayong halaga. Pero tiniyak sa akin na sa Martes, ika-24 ng buwan ay ibibigay sa akin.Bukas ay tutungo ako sa amin upang lumikom pa ng karagdagang halaga upang maisauli ko ang buong P300,000.00. Nakikiusap ako sa iyo dahil sa ikaw ang nagbigay sa akin ng pera na bigyan mo ako ng kaunting panahon upang malikom ko ang pera na ipinagkatiwala mo sa akin, hanggang ika-25 ng Agosto, 2004. x x x"6
Maya-mayang alas nuwebe (9:00) titingnan ang lupang aking ipinagbibili ng Dalawang Milyon. Gustong-gusto ng bibili gusto lang makita ang lupa dahil malayo, nasa Cavinti. Kung ok na sa bibili pinakamatagal na ang Friday ang bayaran.
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Iyong aking sinisingil na isang P344,000.00 at isang P258,000.00 na utang ng taga-Liliw ay darating sa akin ngayong umaga bago mag alas otso. Kung maydala ng pambayad kahit magkano ay ibibigay ko sa iyo ngayong hapon.x x x xLahat ng pagkakaperahan ko ay aking ginagawa, pati anak ko ay tinawagan ko na. Pakihintay muna lang ng kauting panahon pa, hindi matatapos ang linggong ito, tapos ang problema ko sa iyo. Pasensiya ka na."7
However, as of the filing of the instant complaint, despite repeated demands, Atty. Alvero failed to return the same. Thus, Barcenas prayed that Atty. Alvero be disbarred for being a disgrace to the legal profession.On March 30, 2005, the IBP-CBD ordered Atty. Alvero to submit his Answer to the complaint.8
In compliance, in his Answer9 dated April 18, 2005, Atty. Alvero claimed that he did not know Barcenas prior to the filing of the instant complaint nor did he know that San Antonio was an employee of Barcenas. He alleged that he came to know Barcenas only when the latter went to him to borrow P60,000.00 "from the amount entrusted to Rodolfo San Antonio" who entrusted to respondent.ten.lihpwal At that time, Atty. Alvero claimed that San Antonio was reluctant to grant the request because it might jeopardize the main and principal cause of action of the Department of Agrarian Reform Adjudication Board (DARAB) case. Atty. Alvero, however, admitted that he received an amount of P300,000.00 from San Antonio, though he claimed that said money was the principal cause of action in the reconveyance action.10
Atty. Alvero stressed that there was no lawyer-client relationship between him and Barcenas. He, however, insisted that the lawyer-client relationship between him and San Antonio still subsisted as his service was never severed by the latter. He further emphasized that he had not breached the trust of his client, since he had, in fact, manifested his willingness to return the said amount as long as his lawyer-client relationship with San Antonio subsisted. Finally, Atty. Alvero prayed that the instant complaint be dismissed.On June 20, 2005, the IBP-CBD notified the parties to appear for the mandatory conference.11
Meanwhile, in a separate Affidavit12 dated September 19, 2005, San Antonio narrated that he indeed sought Atty. Alvero’s professional services concerning an agricultural land dispute. He claimed that Atty. Alvero made him believe that he needed to provide an amount of P300,000.00 in order to file his complaint, as the same would be deposited in court. San Antonio quoted Atty. Alvero as saying: "Hindi pwedeng hindi kasabay ang pera sa pagpa-file ng papel dahil tubusan yan, kung sakaling ipatubos ay nasa korte na ang pera." Believing that it was the truth, San Antonio was forced to borrow money from Barcenas in the amount of P300,000.00. Subsequently, San Antonio gave the said amount to Atty. Alvero, in addition to the professional fees, as shown by an acknowledgment receipt.13
San Antonio further corroborated Barcenas’ allegation that they tried to borrow P80,000.00 from the P300,000.00 they gave to Atty. Alvero after they found out that the latter lost a big amount of money in cockfighting. He reiterated that Atty. Alvero declined and stated, "Akala nyo ba ay madali kunin ang pera pag nasa korte na." Later on, they found out that Atty. Atty. Alvero lied to them since the money was never deposited in court but was instead used for his personal needs. For several times, Atty. Alvero promised to return the money to them, but consistently failed to do so. San Antonio submitted Atty. Atty. Alvero’s letters dated August 18, 200414 and August 25, 200415 showing the latter’s promises to return the amount of P300,000.00.During the mandatory conference, Atty. Alvero failed to attend despite notice. Thus, he was deemed to have waived his right to participate in the mandatory conference.In its Report and Recommendation dated May 21, 2008, the IBP-CBD recommended that Atty. Alvero be suspended from the practice of law for a period of one (1) year for gross misconduct. Atty. Alvero was, likewise, ordered to immediately account for and return the amount of P300,000.00 to Barcenas and/or Rodolfo San Antonio. The pertinent portion thereof reads:The record does not show and no evidence was presented by respondent to prove that the amount ofP300,000 which was entrusted to him was already returned to complainant or Rodolfo San Antonio, by way of justifying his non-return of the money, respondent claims in his Answer that the P300,000 "was the source of the principal cause of action of the petitioner, Rodolfo San Antonio, in the above-cited DARAB Case No. R-0403-0011-04 as
shown by a copy of the Amended Petition, copy of which is hereto attached as Annex "1" and made an integral part hereof.A review of Annex 1, which in the Amended Petition dated October 31, 2004 and filed on November 3, 2004, will show that the Petitioner Rodolfo San Antonio is praying that he be allowed to cultivate the land after the P300,000 is consigned by Petitioner to the Honorable Adjudication Board. Up to the time of the filing of the instant complaint, no such deposit or consignment took place and no evidence was presented that respondent deposited the amount in court.The fact is respondent promised to return the amount (Annex "B" and "C" of the Complaint), but he failed to do so. The failure therefore of respondent to account for and return the amount of P300,000 entrusted or given to him by his client constitute gross misconduct and would subject him to disciplinary action under the Code.16
In Notice of Resolution No. XVIII-2008-342 dated July 17, 2008, the IBP Board of Governors adopted and approved with modification as to penalty the Report and Recommendation of the IBP-CBD. Instead, it ordered that Atty. Alvero be suspended from the practice of law for two (2) years and, likewise, ordered him to account for and return the amount of P300,000.00 to complainants within thirty (30) days from receipt of notice.The Office of the Bar Confidant redocketed the instant case as a regular administrative complaint against Atty. Alvero and, subsequently, recommended that this Court issue an extended resolution for the final disposition of the case.We sustain the findings and recommendations of the IBP-CBD.Undoubtedly, Atty. Alvero breached Rule 1.01 of Canon 1 and Rules 16.01, 16.02 and 16.03 of Canon 16 of the Code of Professional Responsibility, which read:CANON 1.A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL PROCESS.Rule 1.01. A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.CANON 16.A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS POSSESSION.Rule 16.01. A lawyer shall account for all money or property collected or received for or from the client.Rule 16.02. A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him.Rule 16.03. A lawyer shall deliver the funds and property of his client when due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his unlawful fees and disbursements, giving notice promptly thereafter to his client. He shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for in the Rules of Court.In the instant case, Atty. Alvero admitted to having received the amount of P300,000.00 from San Antonio, specifically for the purpose of depositing it in court. However, as found by the IBP-CBD, Atty. Alvero presented no evidence that he had indeed deposited the amount in or consigned it to the court. Neither was there any evidence that he had returned the amount to Barcenas or San Antonio.From the records of the case, there is likewise a clear breach of lawyer-client relations. When a lawyer receives money from a client for a particular purpose, the lawyer is bound to render an accounting to the client showing that the money was spent for a particular purpose. And if he does not use the money for the intended purpose, the lawyer must immediately return the money to his client.17 These, Atty. Alvero failed to do.Jurisprudence dictates that a lawyer who obtains possession of the funds and properties of his client in the course of his professional employment shall deliver the same to his client (a) when they become due, or (b) upon demand. In the instant case, respondent failed to account for and return the P300,000.00 despite complainant’s repeated demands.18
Atty. Alvero cannot take refuge in his claim that there existed no attorney-client relationship between him and Barcenas. Even if it were true that no attorney-client relationship existed between them, case law has it that an attorney may be removed, or otherwise disciplined, not only for malpractice and dishonesty in the profession,
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but also for gross misconduct not connected with his professional duties, making him unfit for the office and unworthy of the privileges which his license and the law confer upon him.19
Atty. Alvero’s failure to immediately account for and return the money when due and upon demand violated the trust reposed in him, demonstrated his lack of integrity and moral soundness, and warranted the imposition of disciplinary action. It gave rise to the presumption that he converted the money for his own use, and this act constituted a gross violation of professional ethics and a betrayal of public confidence in the legal profession.20They constitute gross misconduct and gross unethical behavior for which he may be suspended, following Section 27, Rule 138 of the Rules of Court, which provides:Sec. 27. Disbarment or suspension of attorneys by Supreme Court, grounds therefor. - A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before the admission to practice, or for a willful disobedience appearing as attorney for a party without authority to do so.We come to the penalty imposable in this case.In Small v. Banares,21 the respondent was suspended for two years for violating Canon 16 of the Code of Professional Responsibility, particularly for failing to file a case for which the amount of P80,000.00 was given him by the client, and for failing to return the said amount upon demand. Considering that similar circumstances are attendant in this case, the Court finds the Resolution of the IBP imposing on respondent a two-year suspension to be in order.As a final note, we reiterate: the practice of law is not a right, but a privilege. It is granted only to those of good moral character. The Bar must maintain a high standard of honesty and fair dealing.22 For the practice of law is a profession, a form of public trust, the performance of which is entrusted to those who are qualified and who possess good moral character. Those who are unable or unwilling to comply with the responsibilities and meet the standards of the profession are unworthy of the privilege to practice law.23
WHEREFORE, Notice of Resolution No. XVIII-2008-342 dated July 17, 2008 of the IBP-CBD Board of Governors, which found respondent Atty. Anorlito A. Alvero GUILTY of gross misconduct, is AFFIRMED. He is herebySUSPENDED for a period of two (2) years from the practice of law, effective upon the receipt of this Decision. He is warned that a repetition of the same or a similar act will be dealt with more severely.Let a copy of this Decision be furnished to the Office of the Bar Confidant, to be appended to the personal record of Atty. Alvero as a member of the Bar; the Integrated Bar of the Philippines; and the Office of the Court Administrator for circulation to all courts in the country for their information and guidance.This Decision shall be immediately executory.SO ORDERED.EN BANCA.C. No. 6697 July 25, 2006ZOILO ANTONIO VELEZ, complainant, vs.ATTY. LEONARD S. DE VERA, respondent.x - - - - - - - - - - - - - - - - - - - - - - - - - xBar Matter No. 1227 July 25, 2006RE: OATH-TAKING OF ATTY. LEONARD S. DE VERA, INCOMING PRESIDENT OF THE INTEGRATED BAR OF THE PHILIPPINES.x - - - - - - - - - - - - - - - - - - - - - - - - - xA.M. No. 05-5-15-SC July 25, 2006IN THE MATTER OF THE REMOVAL OF ATTY. LEONARD S. DE VERA FROM THE IBP BOARD OF GOVERNORS AS EXECUTIVE VICE PRESIDENT AND GOVERNOR.IN THE MATTER OF THE LETTER-COMPLAINT OF ATTY. LEONARD S. DE VERA DATED MAY 18, 2005 TO FORTHWITH DENY/DISAPPROVE THE IBP RESOLUTION UNJUSTLY, ILLEGALLY, ARBITRARILY, AND ABRUPTLY
REMOVING HIM FROM THE BOARD OF GOVERNORS OF THE IBP FOR ABSOLUTE LACK OF BASIS AND FOR FLAGRANT DENIAL OF DUE PROCESS.D E C I S I O NPer Curiam:Before Us are three consolidated cases revolving around Integrated Bar of the Philippines (IBP) Governor and Executive Vice-President (EVP) Atty. Leonard de Vera. The first pertains to a disbarment case questioning Atty. de Vera's moral fitness to remain as a member of the Philippine Bar, the second refers to Atty. de Vera's letter-request to schedule his oath taking as IBP National President, and the third case concerns the validity of his removal as Governor and EVP of the IBP by the IBP Board. The resolution of these cases will determine the national presidency of the IBP for the term 2005-2007.A.C. No. 6697The Office of the Bar Confidant, which this Court tasked to make an investigation, report and recommendation on subject case,1 summarized the antecedents thereof as follows:In a Complaint dated 11 April 2005, complainant Zoilo Antonio Velez moved for the suspension and/or disbarment of respondent Atty. Leonard de Vera based on the following grounds:1) respondent's alleged misrepresentation in concealing the suspension order rendered against him by the State Bar of California; and2) respondent's alleged violation of the so-called "rotation rule" enunciated in Administrative Matter No. 491 dated 06 October 1989 (in the Matter: 1989 IBP Elections).Complainant averred that the respondent, in appropriating for his own benefit funds due his client, was found to have performed an act constituting moral turpitude by the Hearing Referee Bill Dozier, Hearing Department – San Francisco, State Bar of California in Administrative Case No. 86-0-18429. Complainant alleged that the respondent was then forced to resign or surrender his license to practice law in the said state in order to evade the recommended three (3) year suspension. Complainant asserted that the respondent lacks the moral competence necessary to lead the country's most noble profession.Complainant, likewise, contended that the respondent violated the so-called "rotation rule" provided for in Administrative Matter No. 491 when he transferred to IBP Agusan del Sur Chapter. He claimed that the respondent failed to meet the requirements outlined in the IBP By-Laws pertaining to transfer of Chapter Membership. He surmised that the respondent's transfer was intended only for the purpose of becoming the next IBP National President. Complainant prayed that the respondent be enjoined from assuming office as IBP National President.Meanwhile, in his Comment dated 2 May 2005, respondent stated that the issues raised in above-mentioned Complaint were the very issues raised in an earlier administrative case filed by the same complainant against him. In fact, according to him, the said issues were already extensively discussed and categorically ruled upon by this Court in its Decision dated 11 December 2005 in Administrative Case No. 6052 (In Re: Petition to Disqualify Atty. Leonard De Vera). Respondent prayed that the instant administrative complaint be dismissed following the principle of res judicata.On 15 June 2005, both parties appeared before the Office of the Bar Confidant for presentation of evidence in support of their respective allegations.Subsequently, in a Memorandum dated 20 June 2005, complainant maintained that there is substantial evidence showing respondent's moral baseness, vileness and depravity, which could be used as a basis for his disbarment. Complainant stressed that the respondent never denied that he used his client's money. Complainant argued that the respondent failed to present evidence that the Supreme Court of California accepted the latter's resignation and even if such was accepted, complainant posited that this should not absolve the respondent from liability.Moreover, complainant added that the principle of res judicata would not apply in the case at bar. He asserted that the first administrative case filed against the respondent was one for his disqualification. x x x.Bar Matter No. 1227A.M. No. 05-5-15-SC
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As earlier adverted to, Bar Matter No. 1227 refers to Atty. de Vera's letter-request to this Court to schedule his oath taking as IBP National President. A.M. No. 05-5-15-SC, on the other hand, is a letter-report dated 19 May 2005 of IBP National President Jose Anselmo I. Cadiz (IBP President Cadiz) furnishing this Court with the IBP's Resolution, dated 13 May 2005, removing Atty. De Vera as member of the IBP Board and as IBP EVP, for committing acts inimical to the IBP Board and the IBP in general.2
The controversy in Bar Matter No. 1227 and A.M. No. 05-5-15-SC arose from the regular meeting of the IBP Board of Governors held on 14 January 2005. In said meeting, by 2/3 vote (6 voting in favor and 2 against), the IBP Board approved the withdrawal of the Petition filed before this Court docketed as "Integrated Bar of the Philippines, Jose Anselmo I. Cadiz, et al. vs. Senate of the Philippines, et al. – Petition for Certiorari and Prohibition with Prayer for the Issuance of Temporary Restraining Order or Writ of Preliminary Injunction, SC-R165108." The Petition was intended to question the legality and/or constitutionality of Republic Act No. 9227, authorizing the increase in the salaries of judges and justices, and to increase filing fees.3
The two IBP Governors who opposed the said Resolution approving the withdrawal of the above-described Petition were herein respondent Governor and EVP de Vera and Governor Carlos L. Valdez.4
On 19 January 2005, IBP President Cadiz informed this Court of the decision taken by the IBP Board to withdraw the afore-mentioned Petition. Attached to his letter was a copy of the IBP Board's 14 January 2005 Resolution.5
On 15 April 2005, Bar Matter No. 1227, pertaining to Atty. de Vera's request for oathtaking as National President, was filed. The same was subsequently consolidated with A.C. No. 6697, the disbarment case filed against Atty. de Vera.6
On 22 April 2005, a plenary session was held at the 10th National IBP Convention at the CAP-Camp John Hay Convention Center, Baguio City. It was at this forum where Atty. de Vera allegedly made some untruthful statements, innuendos and blatant lies in connection with the IBP Board's Resolution to withdraw the Petition questioning the legality of Republic Act No. 9227.7
On 10 May 2005, this Court issued a Temporary Restraining Order (TRO) enjoining Atty. de Vera from assuming office as IBP National President.8
On 12 May 2005, IBP Gov. Romulo A. Rivera wrote IBP National President Cadiz a letter wherein he prayed for the removal of Atty. de Vera as member of the IBP Board for having committed acts which were inimical to the IBP Board and the IBP.9
On 13 May 2005, in the 20th Regular Meeting of the Board held at the Waterfront Hotel, Cebu City, the IBP Board, by 2/3 vote, resolved to remove Atty. de Vera as member of the IBP Board of Governors and as IBP Executive Vice President.10 Quoted hereunder is the dispositive portion of said Resolution:NOW THEREFORE, BE IT RESOLVED, AS IT IS HEREBY RESOLVED, that Governor Leonard S. de Vera is REMOVED as a member of the IBP Board of Governors and Executive Vice President for committing acts inimical to the IBP Board of Governors and the IBP, to wit:1. For making untruthful statements, innuendos and blatant lies in public about the Supreme Court and members of the IBP Board of Governors, during the Plenary Session of the IBP 10th National Convention of Lawyers, held at CAP-Camp John Hay Convention Center on 22 April 2005, making it appear that the decision of the IBP Board of Governors to withdraw the PETITION docketed as "Integrated Bar of the Philippines, Jose Anselmo I. Cadiz, et al. vs. The Senate of the Philippines, et al., Petition for Certiorari and Prohibition With Prayer for the Issuance of A Temporary Restraining Order or Writ of Preliminary Injunction, S.C.-R. 165108", was due to influence and pressure from the Supreme Court of the Philippines;2. For making said untruthful statements, innuendos and blatant lies that brought the IBP Board of Governors and the IBP as a whole in public contempt and disrepute;3. For violating Canon 11 of the Code of Professional Responsibility for Lawyers which mandates that "A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others", by making untruthful statements, innuendos and blatant lies during the Plenary Session of the IBP 10th National Convention of Lawyers in Baguio City;4. For instigating and provoking some IBP chapters to embarrass and humiliate the IBP Board of Governors in order to coerce and compel the latter to pursue the aforesaid PETITION;
5. For falsely accusing the IBP National President, Jose Anselmo I. Cadiz, during the Plenary Session of the 10th National Convention in Baguio City of withholding from him a copy of Supreme Court Resolution, dated 25 January 2005, granting the withdrawal of the PETITION, thereby creating the wrong impression that the IBP National President deliberately prevented him from taking the appropriate remedies with respect thereto, thus compromising the reputation and integrity of the IBP National President and the IBP as a whole.11
On 18 May 2005, Atty. de Vera aired his sentiments to this Court by writing the then Hon. Chief Justice Hilario G. Davide, Jr. a letter captioned as "Urgent Plea to Correct a Glaring Injustice of the IBP Board of Governors; Vehement Protest to the Board Resolution Abruptly Removing Atty. Leonard de Vera from the Board of Governors in Patent Violation of Due Process; Petition to Deny/Disapprove the Completely Unjustified and Highly Arbitrary Resolution Precipitately Ousting Atty. de Vera from the Board of Governors in Less Than Twenty Four (24) Hours from Notice and Judgment Without Formal Investigation."12
In the said letter, Atty. de Vera strongly and categorically denied having committed acts inimical to the IBP and its Board. He alleged that on the basis of an unverified letter-complaint filed by IBP Governor Rivera, the IBP Board voted to expel him posthaste, without just cause and in complete disregard of even the minimum standards of due process. Pertinent portions of his letter read:It is evident that the Board of Governors has committed a grave and serious injustice against me especially when, as the incumbent Executive Vice President of the IBP, I am scheduled to assume my position as National President of the IBP on July 1, 2005. x x xI was denied the very basic rights of due process recognized by the Supreme Court even in administrative cases:1. The denial of the right to answer the charges formally or in writing. The complaint against me was in writing.2. The denial of the right to answer the charges within a reasonable period of time after receipt of the complaint.3. The denial of the right to a fair hearing.4. The denial of the right to confront the accuser and the witnesses against me. I challenged Gov. Rivera to testify under oath so I could question him. He refused. I offered to testify under oath so I could be questioned. My request was denied.5. The denial of my right to present witnesses on my behalf.6. The denial of my right to an impartial judge. Governor Rivera was my accuser, prosecutor, and judge all at the same time.7. Gov. Rivera's prejudgment of my case becomes even more evident because when his motion to expel me was lost in a 5-3 votes (due to his inhibition to vote), Gov. Rivera asked for another round of voting so he can vote to support his own complaint and motion to expel me.13 (Emphasis and underscoring in original.)On 27 May 2005, the IBP Board responded to the 18 May 2005 letter of Atty. de Vera.14 In their Reply, the IBP Board explained to this Court that their decision to remove Atty. de Vera was based on valid grounds and was intended to protect itself from a recalcitrant member. Among the grounds cited and elucidated by the IBP Board were the following:(i) Atty. de Vera engaged himself in a negative media campaign and solicited resolutions from IBP Chapters to condemn the IBP Board of Governors for its decision to withdraw the Petition, all with the end in view of compelling or coercing the IBP Board of Governors to reconsider the decision to withdraw the Petition.(ii) Atty. de Vera embarrassed, humiliated and maligned the IBP Board of Governors and the IBP National President in public or during the Plenary Session at the 10th National Convention of Lawyers.(iii) Rather than pacify the already agitated 'solicited' speakers (at the plenary session), Atty. de Vera "fanned the fire", so to speak, and went to the extent of making untruthful statements, innuendos and blatant lies about the Supreme Court and some members of the IBP Board of Governors. He deliberately and intentionally did so to provoke the members of the IBP Board of Governors to engage him in an acrimonious public debate and expose the IBP Board of Governors to public ridicule.(iv) Atty. de Vera uttered untruthful statements, innuendos and blatant lies, e.g., that some of the members of the IBP Board of Governors voted in favor of the withdrawal of the petition (without mentioning names) because "nakakahiya kasi sa Supreme Court, nakakaawa kasi ang Supreme Court, kasi may mga kaibigan tayo sa Court ."
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He made it appear that the IBP Board of Governors approved the resolution, withdrawing the petition, due to "influence" or "pressure" from the Supreme Court.15
The IBP Board explained that Atty. de Vera's actuation during the Plenary Session was "the last straw that broke the camel's back." He committed acts inimical to the interest of the IBP Board and the IBP; hence, the IBP Board decided to remove him.On 3 June 2005, Atty. de Vera furnished the Court with copies of resolutions and a position paper coming from various IBP Chapters all condemning his expulsion from the IBP Board and as IBP EVP.16
On 15 June 2005, IBP President Cadiz informed Chief Justice Davide that in a special meeting of the IBP Board held at the EDSA Shangri-la Plaza on 13 June 2005, the IBP Board took note of the vacancy in the position of the IBP EVP brought about by Atty. de Vera's removal. In his stead, IBP Governor Pura Angelica Y. Santiago was formally elected and declared as IBP EVP.17
On 17 June 2005, Atty. de Vera protested against the election of Atty. Santiago.18 On 20 June 2005, Atty. Santiago voluntarily relinquished the EVP position through a letter addressed to the IBP Board.19 Thus, on 25 June 2005, during its last regular meeting, the IBP Board elected a new EVP in the person of IBP Governor Jose Vicente B. Salazar to replace Atty. Santiago.On 28 June 2005, IBP National President Cadiz, through a letter addressed to Chief Justice Davide, reported to this Court Atty. Salazar's election.20 IBP National President Cadiz also requested, among other things, that Atty. Salazar's election be approved and that he be allowed to assume as National President in the event that Atty. de Vera is disbarred or suspended from the practice of law or should his removal from the 2003-2005 Board of Governors and as EVP is approved by this Court.21 Also on 28 June 2005, Atty. de Vera protested the election of Atty. Salazar.22
In his Extended Comment23 dated 25 July 2005, Atty. de Vera maintained that there was absolutely no factual or legal basis to sustain the motion to remove him from the IBP Board because he violated no law. He argued that if the basis for his removal as EVP was based on the same grounds as his removal from the IBP Board, then his removal as EVP was likewise executed without due notice and without the least compliance with the minimum standards of due process of law.Atty. de Vera strongly averred that, contrary to the utterly false and malicious charges filed against him, the speakers at the Plenary Session of the Baguio Convention, although undeniably impassioned and articulate, were respectful in their language and exhortations, not once undermining the stature of the IBP in general and the IBP Board of Governors in particular. He posited that speaking in disagreement with the Resolution of the Board during the Convention's Plenary Session is not a valid cause to remove or expel a duly-elected member of the IBP Board of Governors; and the decision to remove him only shows that the right to freedom of speech or the right to dissent is not recognized by the incumbent IBP Board.Anent the charges that he accused the National President of withholding a copy of this Court's Resolution granting the withdrawal of the Petition questioning the legality of Republic Act No. 9227, Atty. de Vera avowed that he made no such remarks. As regards the election of a new IBP EVP, Atty. de Vera contended that the said election was illegal as it was contrary to the provisions of the IBP By-Laws concerning national officers, to wit:Section. 49. Term of office. - The President and the Executive Vice President shall hold office for a term of two years from July 1 following their election until 30 June of their second year in office and until their successors shall have been duly chosen and qualified.In the event the President is absent or unable to act, his functions and duties shall be performed by the Executive Vice President, and in the event of death, resignation, or removal of the President, the Executive Vice President shall serve as Acting President for the unexpired portion of the term. In the event of death, resignation, removal or disability of both the President and the Executive Vice President, the Board of Governors shall elect an Acting President to hold office for the unexpired portion of the term or during the period of disability.Unless otherwise provided in these By-Laws, all other officers and employees appointed by the President with the consent of the Board shall hold office at the pleasure of the Board or for such term as the Board may fix.24
To bolster his position, Atty. de Vera stressed that when both the President and the EVP die, resign, are removed, or are disabled, the IBP By-Laws only provides for the election of an Acting President and that no
mention for an election for EVP was made. Thus, when such election for EVP occurs, such is contrary to the express provision of the IBP By-Laws.Atty. de Vera also argued that even if he were validly removed as IBP EVP, his replacement should come from Eastern Mindanao and not from any other region, due to the Rotation Rule embodied in par. 2, Section 47, Article VII of the IBP By-Laws.In response to Atty. de Vera's averments, the 2003-2005 IBP Board, through its counsel, submitted a Reply dated 27 January 2006 and clarified as follows:(i) The IBP Board of Governors is vested with sufficient power and authority to protect itself from an intractable member by virtue of Article VI, Section 44 of the IBP By-Laws;(ii) Atty. de Vera was removed as a member of the IBP Board and as IBP EVP not because of his disagreement with the IBP Board's position but because of the various acts that he committed which the IBP Board determined to be inimical to the IBP Board and the IBP as a whole;(iii) Atty. de Vera cannot exculpate himself from liability by invoking his constitutional right to Free Speech because, as a member of the Bar, it is his sworn duty to observe and maintain the respect due to the courts and to judicial officers and to insist on similar conduct by others;(iv) The IBP Board, in effecting the removal of Atty. de Vera, observed the fundamental principles of due process. As the records would bear, Atty. de Vera was duly notified of the Regular Meeting of the IBP Board held on 13 May 2004; was furnished a copy of Governor Rivera's Letter-Complaint the day before the said meeting; was furnished a copy of the said Meeting's Agenda; and was allowed to personally defend himself and his accuser, Gov. Rivera;(v) Atty. de Vera was validly removed because the required number of votes under Section 44 of the IBP By-Laws to remove Atty. de Vera as a member of the IBP Board and as IBP EVP was duly complied with;(vi) Atty. de Vera's replacement as IBP EVP need not come from Eastern Mindanao Region because: (a) the rotation rule under Article VII, Section 47, par. 2 of the IBP By-Laws had already been complied with when Atty. de Vera, who hails from Eastern Mindanao, was elected IBP EVP; and (b) the rotation rule need not be enforced if the same will not be practicable, possible, feasible, doable or viable; and, finally, that –(vii) Atty. Salazar was validly elected as IBP EVP and, thus, should now be allowed to take his oath as IBP National President.25
The Court's RulingAC No. 6697In his Memorandum26 dated 20 June 2005, complainant tendered the following issues for the consideration of the Court:I.WHETHER OR NOT RESPONDENT ATTORNEY LEONARD S. DEVERA (sic) COMMITED MALPRACTICE WHICH AMOUNTED TO MORAL T[U]RPITUDE IN THE STATE BAR OF CALIFORNIA AND IN THE PHILIPPINES, IN THE COURSE OF HIS PRACTICE OF LAW.II.WHETHER OR NOT THE OATH OF OFFICE AS LAWYER IS ATTACHED TO THE PERSON OF ATTORNEY LEONARD S. DEVERA (sic) WHEREVER HE MAY GO AND NOT NECESSARILY BOUND BY THE TERRITORIAL JURISDICTION OF THE PHILIPPINES.III.WHETHER OR NOT THERE IS SUBSTANTIAL EVIDENCE TO PROVE THE MORAL T[U]RPITUDE, AS BASIS FOR DISBARMENT OF RESPONDENT IN AN ADMINISTRATIVE PROCEEDING.IV.WHETHER OR NOT RES JUDICATA APPLIES IN THIS CASE, DUE TO ADMIN. CASE NO. [6052]27
The disposition of the first three related issues hinges on the resolution of the fourth issue. Consequently, we will start with the last issue.A.C. No. 6052 is not a bar to the filing of the present administrative case.In disposing of the question of res judicata, the Bar Confidant opined:
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To reiterate, the instant case for suspension and/or disbarment against respondent Leonard De Vera is grounded on the following:1) respondent's alleged misrepresentation in concealing the suspension order rendered against him by the State Bar in California; and2) respondent's alleged violation of the so-called "rotation rule" enunciated in Administrative Matter No. 491 dated 06 October 1989 (In the Matter: 1989 IBP Elections).It appears that the complainant already raised the said issues in an earlier administrative case against the respondent. Verily, these issues were already argued upon by the parties in their respective pleadings, and discussed and ruled upon by this Court in its Decision dated 11 December 2003 in Administrative Matter No. 6052 (In Re: Petition to Disqualify Atty. Leonard de Vera).As such, with respect to the first issue, this Court held that:"As for the administrative complaint filed against him by one of his clients when he was practicing law in California, which in turn compelled him to surrender his California license to practice law, he maintains that it cannot serve as basis for determining his moral qualification (or lack of it) to run for the position he is aspiring for. He explains that there is as yet no final judgment finding him guilty of the administrative charge, as the records relied upon by the petitioners are mere preliminary findings of a hearing referee which are recommendatory findings of an IBP Commissioner on Bar Discipline which are subject to the review of and the final decision of the Supreme Court. He also stresses that the complainant in the California administrative case has retracted the accusation that he misappropriated the complainant's money, but unfortunately the retraction was not considered by the investigating officer. xxx""On the administrative complaint that was filed against respondent De Vera while he was still practicing law in California, he explained that no final judgment was rendered by the California Supreme Court finding him guilty of the charge. He surrendered his license to protest the discrimination he suffered at the hands of the investigator and he found it impractical to pursue the case to the end. We find these explanations satisfactory in the absence of contrary proof. It is a basic rule on evidence that he who alleges a fact has the burden to prove the same. In this case, the petitioners have not shown how the administrative complaint affects respondent De Vera's moral fitness to run for governor.On the other hand, as regards the second issue:"Petitioners contend that respondent de Vera is disqualified for the post because he is not really from Eastern Mindanao. His place of residence is in Parañaque and he was originally a member of the PPLM IBP Chapter. He only changed his IBP Chapter membership to pave the way for his ultimate goal of attaining the highest IBP post, which is the national presidency. Petitioners aver that in changing his IBP membership, respondent De Vera violated the domicile rule.The contention has no merit. Under the last paragraph of Section 19, Article II, a lawyer included in the Roll of Attorneys of the Supreme Court can register with the particular IBP Chapter of his preference or choice, thus:xxxIt is clearly stated in the aforequoted section of the By-Laws that it is not automatic that a lawyer will become a member of the chapter where his place of residence or work is located. He has the discretion to choose the particular chapter where he wishes to gain membership. Only when he does not register his preference that he will become a member of the Chapter of the place where he resides or maintains office. The only proscription in registering one's preference is that a lawyer cannot be a member of more than one chapter at the same time.The same is provided in Section 29-2 of the IBP By-Laws. In fact, under this Section, transfer of IBP membership is allowed as long as the lawyer complies with the conditions set forth therein, thus:xxxThe only condition required under the foregoing rule is that the transfer must be made not less than three months prior to the election of officers in the chapter to which the lawyer wishes to transfer.In the case at bar, respondent De Vera requested the transfer of his IBP membership to Agusan del Sur on 1 August 2001. One month thereafter, IBP National Secretary Jaime M. Vibar wrote a letter addressed to Atty. Amador Z. Tolentino, Jr., Secretary of IBP PPLM Chapter and Atty. Lyndon J. Romero, Secretary of IBP Agusan del
Sur Chapter, informing them of respondent de Vera's transfer and advising them to make the necessary notation in their respective records. This letter is a substantial compliance with the certification mentioned in Section 29-2 as aforequoted. Note that de Vera's transfer was made effective sometime between 1 August 2001 and 3 September 2001. On 27 February 2003, the elections of the IBP Chapter Officers were simultaneously held all over the Philippines, as mandated by Section 29.a of the IBP By-Laws which provides that elections of Chapter Officers and Directors shall be held on the last Saturday of February of every other year. Between 3 September 2001 and 27 February 2003, seventeen months had elapsed. This makes respondent de Vera's transfer valid as it was done more than three months ahead of the chapter elections held on 27 February 2003.In the case of Romulo G. Dinsay vs. Atty. Leopoldo D. Cioco (Administrative Case No. 2995, 27 November 1996), this Court declared that:"The doctrine of res judicata applies only to judicial or quasi-judicial proceedings and not to the exercise of the [Court's] administrative powers."In the said case, respondent Clerk of Court Cioco was dismissed from service for grave misconduct highly prejudicial to the service for surreptitiously substituting the bid price in a Certificate of Sale from P3,263,182.67 to only P730,000.00. Thereafter a complaint for disbarment was filed against the respondent on the basis of the same incident. Respondent, interposing res judicata, argued that he may no longer be charged on the basis of the same incident. This Court held that while the respondent is in effect being indicted twice for the same misconduct, this does not amount to double jeopardy as both proceedings are admittedly administrative in nature. This Court qualified that, in the first case, the respondent was proceeded against as an erring court personnel under the Court's supervisory power over courts while, in the second case, he was disciplined as a lawyer under the Court's plenary authority over membersof the legal profession.In subsequent decisions of this Court, however, it appears that res judicata still applies in administrative cases. Thus, in the case of Atty. Eduardo C. De Vera vs. Judge William Layague (Administrastive Matter No. RTJ-93-986), this Court ruled that:"While double jeopardy does not lie in administrative cases, it would be contrary to equity and substantial justice to penalize respondent judge a second time for an act which he had already answered for.";Likewise, in the recent case of Executive Judge Henry B. Basilia vs. Judge Amado L. Becamon, Lolita Delos Reyes and Eddie Delos Reyes (Administrative Matter No. MTJ-02-1404, 14 December 2004), this Court held that:"Applying the principle of res judicata or bar by prior judgment, the present administrative case becomes dismissible.xxxUnder the said doctrine, a matter that has been adjudicated by a court of competent jurisdiction must be deemed to have been finally and conclusively settled if it arises in any subsequent litigation between the same parties and for the same cause. It provides that[a] final judgment on the merits rendered by a court of competent jurisdiction is conclusive as to the rights of the parties and their privies; and constitutes an absolute bar to subsequent actions involving the same claim, demand, or cause of action. Res judicata is based on the ground that the party to be affected, or some other with whom he is in privity, has litigated the same matter in the former action in a court of competent jurisdiction, and should not be permitted to litigate it again.This principle frees the parties from undergoing all over again the rigors of unnecessary suits and repetitious trials. At the same time, it prevents the clogging of court dockets. Equally important, res judicata stabilizes rights and promotes the rule of law."In the instant administrative case, it is clear that the issues raised by the complainant had already been resolved by this Court in an earlier administrative case. The complainant's contention that the principle ofres judicata would not apply in the case at bar as the first administrative case was one for disqualification while the instant administrative complaint is one for suspension and/or disbarment should be given least credence. It is worthy to note that while the instant administrative complaint is denominated as one for suspension and/or disbarment, it prayed neither the suspension nor the disbarment of the respondent but instead merely sought to enjoin the respondent from assuming office as IBP National President.28
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Contrary to the findings of the Bar Confidant, Adm. Case No. 6052 entitled, "In Re: Petition to Disqualify Atty. Leonard de Vera, on Legal and Moral Grounds, From Being Elected IBP Governor for Eastern Mindanao in the May 31 IBP Election" and promulgated on 11 December 2003 does not constitute a bar to the filing of Adm. Case No. 6697. Although the parties in the present administrative case and in Adm. Case No. 6052 are identical, their capacities in these cases and the issues presented therein are not the same, thereby barring the application ofres judicata.In order that the principle of res judicata may be made to apply, four essential conditions must concur, namely: (1) the judgment sought to bar the new action must be final; (2) the decision must have been rendered by a court having jurisdiction over the subject matter and the parties; (3) the disposition of the case must be a judgment or order on the merits, and (4) there must be between the first and second action identity of parties, identity of subject matter, and identity of causes of action.29 In the absence of any one of these elements, Atty. de Vera cannot argue res judicata in his favor.It is noteworthy that the two administrative cases involve different subject matters and causes of action. In Adm. Case No. 6052, the subject matter was the qualification of Atty. de Vera to run as a candidate for the position of IBP Governor for Eastern Mindanao. In the present administrative complaint, the subject matter is his privilege to practice law. In the first administrative case, complainants' cause of action was Atty. de Vera's alleged violation or circumvention of the IBP By-laws. In the present administrative case, the primary cause of action is Atty. de Vera's alleged violation of lawyer's oath and the Code of Professional Responsibility.Finally, the two administrative cases do not seek the same relief. In the first case, the complainants sought to prevent Atty. de Vera from assuming his post as IBP Governor for Eastern Mindanao. In the present case, as clarified by complainant in his Memorandum, what is being principally sought is Atty. de Vera's suspension or disbarment.The distinctions between the two cases are far from trivial. The previous case was resolved on the basis of the parties' rights and obligations under the IBP By-laws. We held therein that Atty. de Vera cannot be disqualified from running as Regional Governor as there is nothing in the present IBP By-laws that sanctions the disqualification of candidates for IBP governors. Consequently, we stressed that the petition had no firm ground to stand on. Likewise, we held that the complainants therein were not the proper parties to bring the suit as the IBP By-laws prescribes that only nominees - which the complainants were not - can file with the IBP President a written protest against the candidate. The Court's statement, therefore, that Atty. de Vera cannot be disqualified on the ground that he was not morally fit was mere obiter dictum. Precisely, the IBP By-laws do not allow for pre-election disqualification proceedings; hence, Atty. de Vera cannot be disqualified on the basis of the administrative findings of a hearing officer of the State Bar of California suspending him from the practice of law for three years. We held in that case that –There is nothing in the By-Laws which explicitly provides that one must be morally fit before he can run for IBP governorship. For one, this is so because the determination of moral fitness of a candidate lies in the individual judgment of the members of the House of Delegates. Indeed, based on each member's standard of morality, he is free to nominate and elect any member, so long as the latter possesses the basic requirements under the law. For another, basically the disqualification of a candidate involving lack of moral fitness should emanate from his disbarment or suspension from the practice of law by this Court, or conviction by final judgment of an offense which involves moral turpitude.30
What this simply means is that absent a final judgment by the Supreme Court in a proper case declaring otherwise, every lawyer aspiring to hold the position of IBP Regional Director is presumed morally fit. Any person who begs to disagree will not be able to find a receptive audience in the IBP through a petition for disqualification but must first file the necessary disbarment or suspension proceeding against the lawyer concerned.And this is precisely what complainant has chosen to do in the instant case. As his petition is sufficient in form and substance, we have given it due course pursuant to Rule 138 of the Rules of Court. And, considering that this case is not barred by the prior judgment in Adm. Case No. 6052, the only issue left for consideration is whether
or not Atty. de Vera can be suspended or disbarred under the facts of the case and the evidence submitted by complainant.The recommendation of the hearing officer of the State Bar of California, standing alone, is not proof of malpractice.In the case of the Suspension From The Practice of Law In The Territory of Guam of Atty. Leon G. Maquera ,31 we were confronted with the question of whether or not a member of the Philippine Bar, who is concomitantly an attorney in a foreign jurisdiction and who was suspended from the practice of law in said foreign jurisdiction, can be sanctioned as member of the Philippine Bar for the same infraction committed in the foreign jurisdiction.We take the issue in Atty. Maquera one notch higher in the case of Atty. de Vera who was admitted to the practice of law in a foreign jurisdiction (State Bar of California, U.S.A.) and against whom charges were filed in connection with his practice in said jurisdiction. However, unlike the case of Atty. Maquera, no final judgment for suspension or disbarment was meted against Atty. de Vera despite a recommendation of suspension of three years as he surrendered his license to practice law before his case could be taken up by the Supreme Court of California.In Maquera, we emphasized that the judgment of suspension against a Filipino lawyer in a foreign jurisdiction does not automatically result in his suspension or disbarment in the Philippines as the acts giving rise to his suspension are not grounds for disbarment and suspension in this jurisdiction. Judgment of suspension against a Filipino lawyer may transmute into a similar judgment of suspension in the Philippines only if the basis of the foreign court's action includes any of the grounds for disbarment or suspension in this jurisdiction. We likewise held that the judgment of the foreign court merely constitutes prima facie evidence of unethical acts as lawyer.The Maquera ruling is consistent with Rule 39, Section 48, of the Rules of Court which provides:Sec. 48. Effect of foreign judgments or final orders. - The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is as follows:x x x x(b) In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title.In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.In Philippine Aluminum Wheels, Inc. v. Fasgi Enterprises, Inc.,32 we explained that "[a] foreign judgment is presumed to be valid and binding in the country from which it comes, until a contrary showing, on the basis of a presumption of regularity of proceedings and the giving of due notice in the foreign forum."In herein case, considering that there is technically no foreign judgment to speak of, the recommendation by the hearing officer of the State Bar of California does not constitute prima facie evidence of unethical behavior by Atty. de Vera. Complainant must prove by substantial evidence the facts upon which the recommendation by the hearing officer was based. If he is successful in this, he must then prove that these acts are likewise unethical under Philippine law.There is substantial evidence of malpractice on the part of Atty. de Vera independent of the recommendation of suspension by the hearing officer of the State Bar of CaliforniaSection 27 of Rule 138 of our Rules of Court states:SEC. 27. Disbarment or suspension of attorneys by Supreme Court; grounds therefor. – A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a wilful disobedience of any lawful order of a superior court, or for corruptly or wilfully appearing as an attorney for a party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.The disbarment or suspension of a member of the Philippine Bar by a competent court or other disciplinary agency in a foreign jurisdiction where he has also been admitted as an attorney is a ground for his disbarment or suspension if the basis of such action includes any of the acts hereinabove enumerated.
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The judgment, resolution or order of the foreign court or disciplinary agency shall be prima facie evidence of the ground for disbarment or suspension.33
Disciplinary action against a lawyer is intended to protect the court and the public from the misconduct of officers of the court and to protect the administration of justice by requiring that those who exercise this important function shall be competent, honorable and reliable men in whom courts and clients may repose confidence.34 The statutory enunciation of the grounds for disbarment on suspension is not to be taken as a limitation on the general power of courts to suspend or disbar a lawyer. The inherent power of the court over its officers cannot be restricted.35
Malpractice ordinarily refers to any malfeasance or dereliction of duty committed by a lawyer. Section 27 gives a special and technical meaning to the term "Malpractice."36 That meaning is in consonance with the elementary notion that the practice of law is a profession, not a business.37
Unprofessional conduct in an attorney is that which violates the rules on ethical code of his profession or which is unbecoming a member of that profession.38
Now, the undisputed facts:1. An administrative case against Atty. de Vera was filed before the State Bar of California, docketed then as Adm. Case No. 86-0-18429. It arose from an insurance case Atty. de Vera handled involving Julius Willis, III who figured in an automobile accident in 1986. Atty. de Vera was authorized by the elder Willis (father of Julius who was given authority by the son to control the case because the latter was then studying in San Diego California) for the release of the funds in settlement of the case. Atty. de Vera received a check in settlement of the case which he then deposited to his personal account;39
2. The Hearing referee in the said administrative case recommended that Atty. de Vera be suspended from the practice of law for three years;40 and3. Atty. de Vera resigned from the California Bar which resignation was accepted by the Supreme Court of California.41
Atty. de Vera vehemently insists that the foregoing facts do not prove that he misappropriated his client's funds as the latter's father (the elder Willis) gave him authority to use the same and that, unfortunately, the hearing officer did not consider this explanation notwithstanding the fact that the elder Willis testified under oath that he "expected de Vera might use the money for a few days."By insisting that he was authorized by his client's father and attorney-in-fact to use the funds, Atty. de Vera has impliedly admitted the use of the Willis funds for his own personal use.In fact, Atty. de Vera did not deny complainant's allegation in the latter's memorandum that he (de Vera) received US$12,000.00 intended for his client and that he deposited said amount in his personal account and not in a separate trust account and that, finally, he spent the amount for personal purposes.42
At this point, it bears stressing that in cases filed before administrative and quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.43 It means such evidence which affords a substantial basis from which the fact in issue can be reasonably inferred.44
Beyond doubt, the unauthorized use by a lawyer of his client's funds is highly unethical. Canon 16 of the Code of Professional Responsibility is emphatic about this, thus:CANON 16. A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES OF HIS CLIENT THAT MAY COME TO HIS POSSESSION.Rule 16.01. A lawyer shall account for all money or property collected or received for or from the client.Rule 16.02. A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him.In Espiritu v. Ulep45 we held that –The relation between attorney and client is highly fiduciary in nature. Being such, it requires utmost good faith, loyalty, fidelity and disinterestedness on the part of the attorney. Its fiduciary nature is intended for the protection of the client.
The Code of Professional Responsibility mandates every lawyer to hold in trust all money and properties of his client that may come into his possession. Accordingly, he shall account for all money or property collected or received for or from the client. Even more specific is the Canon of Professional Ethics:The lawyer should refrain from any action whereby for his personal benefit or gain he abuses or takes advantage of the confidence reposed in him by his client.Money of the client or collected for the client or other trust property coming into the possession of the lawyer should be reported and accounted for promptly and should not under any circumstances be commingled with his own or be used by him.Consequently, a lawyer's failure to return upon demand the funds or property held by him on behalf of his client gives rise to the presumption that he has appropriated the same for his own use to the prejudice of, and in violation of the trust reposed in him by, his client. It is a gross violation of general morality as well as of professional ethics; it impairs the public confidence in the legal profession and deserves punishment.Lawyers who misappropriate the funds entrusted to them are in gross violation of professional ethics and are guilty of betrayal of public confidence in the legal profession. Those who are guilty of such infraction may be disbarred or suspended indefinitely from the practice of law. (Emphases supplied.)In herein case, as it is admitted by Atty. de Vera himself that he used his client's money for personal use, he has unwittingly sealed his own fate since this admission constitutes more than substantial evidence of malpractice. Consequently, Atty. de Vera now has the burden of rebutting the evidence which he himself supplied.In his defense, Atty. de Vera claims that he was duly authorized by the elder Willis to use the funds intended for the latter's son. Atty. de Vera also points out that he had restituted the full amount of US$12,000.00 even before the filing of the administrative case against him in the State Bar of California.46
Aside from these self-serving statements, however, we cannot find anywhere in the records of this case proof that indeed Atty. de Vera was duly authorized to use the funds of his client. In Radjaie v. Atty. Alovera47 we declared that –When the integrity of a member of the bar is challenged, it is not enough that he denies the charges against him; he must meet the issue and overcome the evidence against him. He must show proof that he still maintains that degree of morality and integrity which at all times is expected of him.Atty. de Vera cannot rely on the statement made by the hearing officer that the elder Willis had indeed testified that he "expected de Vera might use the money for a few days." As Atty. de Vera had vigorously objected to the admissibility of the document containing this statement, he is now estopped from relying thereon. Besides, that the elder Willis "expected de Vera might use the money for a few days" was not so much an acknowledgment of consent to the use by Atty. de Vera of his client's funds as it was an acceptance of the probability that Atty. de Vera might, indeed, use his client's funds, which by itself did not speak well of the character of Atty. de Vera or the way such character was perceived.In the instant case, the act of Atty. de Vera in holding on to his client's money without the latter's acquiescence is conduct indicative of lack of integrity and propriety. It is clear that Atty. de Vera, by depositing the check in his own account and using the same for his own benefit is guilty of deceit, malpractice, gross misconduct and unethical behavior. He caused dishonor, not only to himself but to the noble profession to which he belongs. For, it cannot be denied that the respect of litigants to the profession is inexorably diminished whenever a member of the profession betrays their trust and confidence.48 Respondent violated his oath to conduct himself with all good fidelity to his client.Nevertheless, we do not agree with complainant's plea to disbar respondent from the practice of law. The power to disbar must be exercised with great caution.49 Where any lesser penalty can accomplish the end desired, disbarment should not be decreed.In Mortera v. Pagatpatan,50 we imposed upon Atty. Pagatpatan two years suspension from his practice of law for depositing the funds meant for his client to his personal account without the latter's knowledge. In Reyes v. Maglaya;51 Castillo v. Taguines;52 Espiritu v. Atty. Cabredo IV,53 the respondents were meted one year suspension each for failing to remit to their clients monies in the amounts of P1,500.00; P500.00, and P51,161.00, respectively, received by them for their clients without the latter's permission. In Dumadag v. Atty. Lumaya,54 we
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indefinitely suspended respondent for failure to remit to his client the amount of the measly sum of P4,344.00 representing the amount received pursuant to a writ of execution. Considering the amount involved here – US$12,000.00, we believe that the penalty of suspension for two (2) years is appropriate.Transferring IBP membership to a chapter where the lawyer is not a resident of is not a ground for his suspension or disbarmentComplainant insists that Atty. de Vera's transfer of membership from the Pasay, Parañaque, Las Piñas and Muntinlupa (PPLM) Chapter to the Agusan del Sur IBP Chapter is a circumvention of the rotation rule as it was made for the sole purpose of becoming IBP National President. Complainant stresses that Atty. de Vera is not a resident of Agusan del Sur nor does he hold office therein.In Adm. Case No. 6052, we held that Atty. de Vera's act of transferring to another IBP Chapter is not a ground for his disqualification for the post of IBP Governor as the same is allowed under Section 19 of the IBP By-Laws with the qualification only that the transfer be made not less than three months immediately preceding any chapter election.As it was perfectly within Atty. de Vera's right to transfer his membership, it cannot be said that he is guilty of unethical conduct or behavior. And while one may incessantly argue that a legal act may not necessarily be ethical, in herein case, we do not see anything wrong in transferring to an IBP chapter that -- based on the rotation rule – will produce the next IBP EVP who will automatically succeed to the National Presidency for the next term. Our Code of Professional Responsibility as well as the Lawyer's Oath do not prohibit nor punish lawyers from aspiring to be IBP National President and from doing perfectly legal acts in accomplishing such goal.Bar Matter No. 1227Administrative Matter No. 05-5-15-SCTo resolve Bar Matter No. 1227 and Administrative Matter No. 05-5- 15-SC, the following issues must be addressed:I. Whether the IBP Board of Governors acted with grave abuse of discretion in removing Atty. de Vera as Governor and EVP of the IBP on 13 May 2005.i. Whether the IBP Board of Governors complied with administrative due process in removing Atty. de Vera.ii. Whether the IBP removed Atty. De Vera for just and valid cause.II. Whether Governor Salazar was validly elected as EVP of the IBP on 25 June 2005, and can consequently assume the Presidency of the IBP for the term 2005-2007.The IBP Board observed due process in its removal of Atty. de Vera as IBP GovernorWe start the discussion with the veritable fact that the IBP Board is vested with the power to remove any of its members pursuant to Section 44, Article VI of the IBP By-Laws, which states:Sec. 44. Removal of members. – If the Board of Governors should determine after proper inquiry that any of its members, elective or otherwise, has for any reason become unable to perform his duties, the Board, by resolution of the Majority of the remaining members, may declare his position vacant, subject to the approval of the Supreme Court.Any member of the Board, elective or otherwise, may be removed for cause, including three consecutive absences from Board meetings without justifiable excuse, by resolution adopted by two-thirds of the remaining members of the Board, subject to the approval of the Supreme Court.In case of any vacancy in the office of Governor for whatever cause, the delegates from the region shall by majority vote, elect a successor from among the members of the Chapter to which the resigned governor is a member to serve as governor for the unexpired portion of the term. (Emphasis supplied)Under the aforementioned section, a member of the IBP Board may be removed for cause by resolution adopted by two-thirds (2/3) of the remaining members of the Board, subject to the approval of this Court.In the main, Atty. de Vera questions his removal from the Board of Governors on procedural and substantive grounds. He argues that he was denied "very basic rights of due process recognized by the Honorable Court even in administrative cases" like the right to answer formally or in writing and within reasonable time, the right to present witnesses in his behalf, the right to a fair hearing. Atty. de Vera protests the fact that he was not able to cross-examine the complainant, IBP Gov. Romulo H. Rivera (Atty. Rivera) and that Atty. Rivera voted as well for
his expulsion which made him accuser, prosecutor and judge at the same time. Atty. de Vera emphasized the fact that Atty. Rivera initially inhibited himself from voting on his own motion. However, when his inhibition resulted in the defeat of his motion as the necessary 2/3 votes could not be mustered, Atty. Rivera asked for another round of voting so he could vote to support his own motion.The IBP Board counters that since its members were present during the plenary session, and personally witnessed and heard Atty. de Vera's actuations, an evidentiary or formal hearing was no longer necessary. Since they all witnessed and heard Atty. de Vera, it was enough that he was given an opportunity to refute and answer all the charges imputed against him. They emphasized that Atty. de Vera was given a copy of the complaint and that he was present at the Board Meeting on 13 May 2005 wherein the letter-complaint against him was part of the agenda. Therein, he was given the opportunity to be heard and that, in fact, Atty. de Vera did argue his case.We are in agreement with the IBP Board.First, it needs stressing that the constitutional provision on due process safeguards life, liberty and property.55 It cannot be said that the position of EVP of the IBP is property within the constitutional sense especially since there is no right to security of tenure over said position as, in fact, all that is required to remove any member of the board of governors for cause is a resolution adopted by 2/3 of the remaining members of the board.Secondly, even if the right of due process could be rightfully invoked, still, in administrative proceedings, the essence of due process is simply the opportunity to explain one's side.56 At the outset, it is here emphasized that the term "due process of law" as used in the Constitution has no fixed meaning for all purposes due "to the very nature of the doctrine which, asserting a fundamental principle of justice rather than a specific rule of law, is not susceptible of more than one general statement."57 The phrase is so elusive of exact apprehension,58 because it depends on circumstances and varies with the subject matter and the necessities of the situation.59
Due process of law in administrative cases is not identical with "judicial process" for a trial in court is not always essential to due process. While a day in court is a matter of right in judicial proceedings, it is otherwise in administrative proceedings since they rest upon different principles. The due process clause guarantees no particular form of procedure and its requirements are not technical. Thus, in certain proceedings of administrative character, the right to a notice or hearing are not essential to due process of law. The constitutional requirement of due process is met by a fair hearing before a regularly established administrative agency or tribunal. It is not essential that hearings be had before the making of a determination if thereafter, there is available trial and tribunal before which all objections and defenses to the making of such determination may be raised and considered. One adequate hearing is all that due process requires. What is required for "hearing" may differ as the functions of the administrative bodies differ.60
The right to cross-examine is not an indispensable aspect of due process.61 Nor is an actual hearing always essential62 especially under the factual milieu of this case where the members of the IBP Board -- upon whose shoulders the determination of the cause for removal of an IBP governor is placed subject to the approval of the Supreme Court – all witnessed Atty. de Vera's actuations in the IBP National Convention in question.It is undisputed that Atty. de Vera received a copy of the complaint against him and that he was present when the matter was taken up. From the transcript of the stenographic notes of the 13 May 2005 meeting wherein Atty. de Vera was removed, it is patent that Atty. de Vera was given fair opportunity to defend himself against the accusations made by Atty. Rivera.Atty. de Vera, however, additionally questions the fact that Atty. Rivera, who authored the complaint against him, also voted for his expulsion making him accuser, prosecutor and judge at the same time. Atty. de Vera likewise laments the fact that Atty. Rivera initially inhibited himself from voting but when this resulted in the defeat of his motion for lack of the necessary 2/3 vote, he agreed to another round of voting and that, this time, he voted in favor of his motion.For the record, of the nine governors comprising the IBP Board, six voted for Atty. de Vera's expulsion (including Atty. Rivera) while 3 voted against it (including Atty. de Vera).Section 44 (second paragraph) of the IBP By-Laws provides:
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Any member of the Board, elective or otherwise, may be removed for cause, including three consecutive absences from Board meetings without justifiable excuse, by resolution adopted by two-thirds of theremaining members of the Board, subject to the approval of the Supreme Court. (Emphasis supplied.)Under the rules, a resolution for expulsion of an IBP Governor is done via a resolution adopted by 2/3 of the remaining members. The phrase "remaining members" refers to the members exclusive of the complainant member and the respondent member. The reason therefore is that such members are interested parties and are thus presumed to be unable to resolve said motion impartially. This being the case, the votes of Attys. Rivera and de Vera should be stricken-off which means that only the votes of the seven remaining members are to be counted. Of the seven remaining members, five voted for expulsion while two voted against it which still adds up to the 2/3 vote requirement for expulsion.The IBP Board removed Atty. de Vera as IBP Governor for just and valid causeAll the concerned parties to this case agree that what constitutes cause for the removal of an IBP Governor has not been defined by Section 44 of the IBP By-Laws albeit it includes three consecutive absences from Board meetings without justifiable excuse. Thus, the IBP Board argues that it is vested with sufficient power and authority to protect itself from an intractable member whose removal was caused not by his disagreement with the IBP Board but due to various acts committed by him which the IBP Board considered as inimical to the IBP Board in particular and the IBP in general.Atty. de Vera, on the other hand, insists that speaking in disagreement with the Resolution of the Board during the Convention's Plenary Session is not a valid cause to remove or expel a duly-elected member of the IBP Board of Governors and the decision to remove him only shows that the right to freedom of speech or the right to dissent is not recognized by the IBP Board.After weighing the arguments of the parties and in keeping with the fundamental objective of the IBP to discharge its public responsibility more effectively, we hereby find that Atty. de Vera's removal from the IBP Board was not capricious or arbitrary.Indubitably, conflicts and disagreements of varying degrees of intensity, if not animosity, are inherent in the internal life of an organization, but especially of the IBP since lawyers are said to disagree before they agree.However, the effectiveness of the IBP, like any other organization, is diluted if the conflicts are brought outside its governing body for then there would be the impression that the IBP, which speaks through the Board of Governors, does not and cannot speak for its members in an authoritative fashion. It would accordingly diminish the IBP's prestige and repute with the lawyers as well as with the general public.As a means of self-preservation, internecine conflicts must thus be adjusted within the governing board itself so as to free it from the stresses that invariably arise when internal cleavages are made public.The doctrine of majority rule is almost universally used as a mechanism for adjusting and resolving conflicts and disagreements within the group after the members have been given an opportunity to be heard. While it does not efface conflicts, nonetheless, once a decision on a contentious matter is reached by a majority vote, the dissenting minority is bound thereby so that the board can speak with one voice, for those elected to the governing board are deemed to implicitly contract that the will of the majority shall govern in matters within the authority of the board.63
The IBP Board, therefore, was well within its right in removing Atty. de Vera as the latter's actuations during the 10th National IBP Convention were detrimental to the role of the IBP Board as the governing body of the IBP. When the IBP Board is not seen by the bar and the public as a cohesive unit, it cannot effectively perform its duty of helping the Supreme Court enforce the code of legal ethics and the standards of legal practice as well as improve the administration of justice.In view of the importance of retaining group cohesiveness and unity, the expulsion of a member of the board who insists on bringing to the public his disagreement with a policy/resolution approved by the majority after due discussion, cannot be faulted. The effectiveness of the board as a governing body will be negated if its pronouncements are resisted in public by a board member.
Indeed, when a member of a governing body cannot accept the voice of the majority, he should resign therefrom so that he could criticize in public the majority opinion/decision to his heart's content; otherwise, he subjects himself to disciplinary action by the body.The removal of Atty. de Vera as member of the Board of Governors ipso facto meant his removal as EVP as wellThe removal of Atty. de Vera as member of the Board of Governors ipso facto meant his removal as EVP as well. Section 47, Article VII of the By-Laws of the IBP provides:SEC. 47. National Officers. – The Integrated Bar of the Philippines shall have a President and Executive Vice President to be chosen by the Board of Governors from among nine (9) regional governors, as much as practicable, on a rotation basis. x x xThus, to be EVP of the IBP, one must necessarily be a member of IBP Board of Governors. Atty. de Vera's removal from the Board of Governors, automatically disqualified him from acting as IBP EVP. To insist otherwise would be contrary to Section 47 of the IBP By-Laws.The Court will not interfere with the Resolution of the IBP Board to remove Atty. de Vera since it was rendered without grave abuse of discretionWhile it is true that the Supreme Court has been granted an extensive power of supervision over the IBP,64 it is axiomatic that such power should be exercised prudently. The power of supervision of the Supreme Court over the IBP should not preclude the IBP from exercising its reasonable discretion especially in the administration of its internal affairs governed by the provisions of its By-Laws. The IBP By-Laws were precisely drafted and promulgated so as to define the powers and functions of the IBP and its officers, establish its organizational structure, and govern relations and transactions among its officers and members. With these By-Laws in place, the Supreme Court could be assured that the IBP shall be able to carry on its day-to-day affairs, without the Court's interference.It should be noted that the general charge of the affairs and activities of the IBP has been vested in the Board of Governors. The members of the Board are elective and representative of each of the nine regions of the IBP as delineated in its By-Laws.65 The Board acts as a collegiate body and decides in accordance with the will of the majority. The foregoing rules serve to negate the possibility of the IBP Board acting on the basis of personal interest or malice of its individual members. Hence, the actions and resolutions of the IBP Board deserve to be accorded the disputable presumption66 of validity, which shall continue, until and unless it is overcome by substantial evidence and actually declared invalid by the Supreme Court. In the absence of any allegation and substantial proof that the IBP Board has acted without or in excess of its authority or with grave abuse of discretion, we shall not be persuaded to overturn and set aside the Board's action or resolution.There is no question that the IBP Board has the authority to remove its members as provided in Article VI, Section 4467 of the IBP By-Laws. Issue arises only as to whether the IBP Board abused its authority and discretion in resolving to remove Atty. de Vera from his post as an IBP Governor and EVP. As has been previously established herein, Atty. de Vera's removal from the IBP Board was in accordance with due process and the IBP Board acted well within the authority and discretion granted to it by its By-Laws. There being no grave abuse of discretion on the part of the IBP Board, we find no reason to interfere in the Board's resolution to remove Atty. de Vera.The election of Atty. Salazar by the IBP Board as IBP EVP in replacement of Atty. De Vera was conducted in accordance with the authority granted to the Board by the IBP By-LawsIn the same manner, we find no reason to disturb the action taken by the 2003-2005 IBP Board of Governors in holding a special election to fill-in the vacant post resulting from the removal of Atty. de Vera as EVP of the IBP since the same is a purely internal matter, done without grave abuse of discretion, and implemented without violating the Rules and By-Laws of the IBP.With the removal of Atty. de Vera from the Board, by virtue of the IBP Board Resolution dated 13 May 2005, he was also removed from his post as EVP; thus, there was a resultant vacancy in the position of IBP EVP.Article VI, Section 41(g) of the IBP By-Laws expressly grants to the Board the authority to fill vacancies, however arising, in the IBP positions, subject to the provisions of Section 8 of the Integration Rule,68 and Section 11 (Vacancies),69 Section 44 (Removal of members),70 Section 47 (National officers),71 Section 48 (other
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officers),72and Section 49 (Terms of Office)73 of the By-Laws. The IBP Board has specific and sufficient guidelines in its Rules and By-Laws on how to fill-in the vacancies after the removal of Atty. de Vera. We have faith and confidence in the intellectual, emotional and ethical competencies of the remaining members of the 2005-2007 Board in dealing with the situation within the bounds of the IBP Rules and By-Laws.The election by the 2003-2005 IBP Board of Governors of a new EVP, who will assume the Presidency for the term 2005-2007, was well within the authority and prerogative granted to the Board by the IBP By-Laws, particularly Article VII, Section 47, which provides that "[t]he EVP shall automatically become President for the next succeeding term." The phrase "for the next succeeding term" necessarily implies that the EVP that should succeed Atty. Cadiz as IBP President for the next succeeding term (i.e., 2005-2007) should come from the members of the 2003-2005 IBP Board of Governors. Hence, in A.M. No. 05-7-19-SC, we restrained now IBP EVP Feliciano Bautista from assuming the position of Acting President because we have yet to resolve the question as to who shall succeed Atty. Cadiz from the 2003-2005 IBP Board of Governors.Accordingly, the elections of Governor Santiago on 13 June 2005 as IBP EVP, and thereafter, Governor Salazar on 25 June 2005, as the new IBP EVP, upon the relinquishment of Gov. Santiago of the position, were valid.Neither can this Court give credence to the argument of Atty. De Vera that, assuming his removal as IBP Governor and EVP was valid, his replacement as IBP EVP should come from Eastern Mindanao Region pursuant to the rotation rule set forth in Article VII, Section 47, of the IBP By-Laws.According to Article VII, Section 47, of the IBP By-Laws, the EVP shall be chosen by the Board of Governors from among the nine Regional Governors, as much as practicable, on a rotation basis. This is based on our pronouncements in Bar Matter 491, wherein we ruled:"ORDERx x x x3. The former system of having the IBP President and Executive Vice-President elected by the Board of Governors (composed of the governors of the nine [9] IBP regions) from among themselves (as provided in Sec. 47, Art. VII, Original IBP By-Laws) should be restored. The right of automatic succession by the Executive Vice-President to the presidency upon the expiration of their two-year term (which was abolished by this Court's resolution dated July 9, 1985 in Bar Matter No. 287) should be as it is hereby restored.4. At the end of the President's two-year term, the Executive Vice-President shall automatically succeed to the office of president. The incoming board of governors shall then elect an Executive Vice-President from among themselves. The position of Executive Vice-President shall be rotated among the nine (9) IBP regions. One who has served as president may not run for election as Executive Vice-President in a succeeding election until after the rotation of the presidency among the nine (9) regions shall have been completed; whereupon, the rotation shall begin anew.x x x x(Emphasis Supplied)"In Bar Matter 491, it is clear that it is the position of IBP EVP which is actually rotated among the nine Regional Governors. The rotation with respect to the Presidency is merely a result of the automatic succession rule of the IBP EVP to the Presidency. Thus, the rotation rule pertains in particular to the position of IBP EVP, while the automatic succession rule pertains to the Presidency. The rotation with respect to the Presidency is but a consequence of the automatic succession rule provided in Section 47 of the IBP By-Laws.In the case at bar, the rotation rule was duly complied with since upon the election of Atty. De Vera as IBP EVP, each of the nine IBP regions had already produced an EVP and, thus, the rotation was completed. It is only unfortunate that the supervening event of Atty. de Vera's removal as IBP Governor and EVP rendered it impossible for him to assume the IBP Presidency. The fact remains, however, that the rotation rule had been completed despite the non-assumption by Atty. de Vera to the IBP Presidency.Moreover, the application of the rotation rule is not a license to disregard the spirit and purpose of the automatic succession rule, but should be applied in harmony with the latter. The automatic succession rule affords the IBP leadership transition seamless and enables the new IBP National President to attend to pressing and urgent matters without having to expend valuable time for the usual adjustment and leadership
consolidation period. The time that an IBP EVP spends assisting a sitting IBP President on matters national in scope is in fact a valuable and indispensable preparation for the eventual succession. It should also be pointed out that this wisdom is further underscored by the fact that an IBP EVP is elected from among the members of the IBP Board of Governors, who are serving in a national capacity, and not from the members at large. It is intrinsic in the IBP By-Laws that one who is to assume the highest position in the IBP must have been exposed to the demands and responsibilities of national leadership.It would therefore be consistent with the purpose and spirit of the automatic succession rule for Governor Salazar to assume the post of IBP President. By electing the replacement EVP from among the members of the 2003-2005 Board of Governors, the IBP benefits from the experience of the IBP EVP of 2003-2005 – in this case, Governor Salazar – who would have served in a national capacity prior to his assumption of the highest position.It will also be inconsistent with the purpose and spirit of the automatic succession rule if the EVP for the term 2003-2005 will be elected exclusively by the members of the House of Delegates of the Eastern Mindanao region. This Court notes that the removal of Atty. De Vera in 13 May 2005 was about a month before the expiration of the term of office of the 2003-2005 Board of Governors. Hence, the replacement Governor would not have been able to serve in a national capacity for two years prior to assuming the IBP Presidency.In any case, Section 47 of the IBP Rules uses the phrase "as much as practicable" to clearly indicate that the rotation rule is not a rigid and inflexible rule as to bar exceptions in compelling and exceptional circumstances.It is in view of the foregoing that the argument advanced by Atty. De Vera that the IBP national presidency should be assumed by a nominee from Eastern Mindanao region from where he comes, can not hold water. It would go against the intent of the IBP By-Laws for such a nominee would be bereft of the wealth of experience and the perspective that only one who is honed in service while serving in a national post in the IBP would have.We therefore rule that the IBP Board of Governors acted in accordance with the IBP By-Laws, in electing Atty. Salazar as IBP EVP and in ensuring a succession in the leadership of the IBP. Had the Board of Governors not done so, there would have been no one qualified to assume the Presidency of the IBP on 1 July 2005, pursuant to Section 47 of the IBP By-Laws.WHEREFORE, in view of the foregoing, we rule as follows:1) SUSPEND Atty. Leonard de Vera in A.C. No. 6697 from the practice of law for TWO (2) YEARS, effective from the finality of this Resolution. Let a copy of this Resolution be attached to the personal record of Atty. Leonard de Vera and copies furnished the Integrated Bar of the Philippines and the Office of the Court Administrator for dissemination to all courts;2) DISMISS the letter-complaint of Atty. Leonard de Vera, dated 18 May 2005, in A.M. No. 05-5-15-SC, praying for the disapproval of the Resolution, dated 13 May 2005, of the Board of Governors of the Integrated Bar of the Philippines removing him from his posts as Governor and Executive Vice President of the Integrated Bar of the Philippines, the said Resolution having been rendered without grave abuse of discretion;3) AFFIRM the election by the Board of Governors of Atty. Jose Vicente B. Salazar as Executive Vice President of the Integrated Bar of the Philippines for the remainder of the term 2003-2005, such having been conducted in accordance with its By-Laws and absent any showing of grave abuse of discretion; and4) DIRECT Atty. Jose Vicente B. Salazar to immediately take his oath of office and assume the Presidency of the Integrated Bar of the Philippines for the term 2005-2007 in accordance with the automatic succession rule in Article VII, Section 47 of the IBP By-Laws, upon receipt of this Resolution.SO ORDERED.
SECOND DIVISIONA.C. No. 5996 February 07, 2005MARIO S. AMAYA, complainant, vs.ATTY. DELANO A. TECSON, respondent.D E C I S I O NCALLEJO, SR., J.:
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In a Complaint dated March 20, 2003, Mario S. Amaya sought the disbarment of Atty. Delano A. Tecson for "highly irregular actuations and/or grave negligence in handling an appeal with the Court of Appeals."The complainant alleged that he retained the services of the respondent to handle the said appeal when his former counsel suffered a stroke due to acute hypertension. The respondent demanded P20,000.001 for the filing of the notice of appeal, which the complainant immediately paid. The respondent assured him that the appeal was going to be filed on time, and demanded an additional sum of P20,000.00 for the preparation and filing of the appellant's brief. The complainant paid the said amount on March 24, 2001.2 The complainant further alleged as follows:… I periodically visited Atty. Tecson in his office to follow up the progress of the appeal with the Honorable Court of Appeals. During my earlier visits, I was assured by Atty. Tecson that our appeal will be given due course. … However, sometime in the first week of December 2001, I was informed by Atty. Tecson that the appeal was dismissed … due to the fact that [he] failed to file it one day late…. I was shocked because I was so diligent in paying Atty. Tecson and also in following up with him the progress of the appeal. When I asked Atty. Tecson why he was not able to file on time the Notice of Appeal, [he] merely replied that the Honorable Court of Appeals committed a mistake in dismissing the appeal because it failed to consider the inability to file the appeal due to the fact that the post office was closed on Saturday and Sundays. Atty. Tecson assured me that the appeal would be resurrected once a Motion for Reconsideration would be filed by him. Thus, Atty. Tecson told me that he would file a motion for reconsideration and would go to Manila to personally follow it up. Atty. Tecson demanded from me the sum of TEN THOUSAND (P10,000.00) PESOS for the said motion for reconsideration. I readily paid Atty. Tecson, but unfortunately, I did not anymore demand for a receipt.3
The complainant narrated that he was no longer able to personally talk to the respondent after this, and that the latter was always "out of town," attending to several court hearings in different cities and municipalities and could not even be reached through his cellular phone.On May 10, 2002, the complainant learned of the denial of the motion for reconsideration through a friend. He tried contacting the respondent, to no avail, and was constrained to hire another lawyer, Atty. Arsenio C. Tan. Atty. Tan then filed a Notice of Appearance and Second Motion for Reconsideration which was denied by the appellate court in a Resolution dated October 16, 2002.In his Comment dated June 23, 2003, the respondent admitted that he was the complainant's counsel and that the appeal was dismiss because he failed to file the docket fees on time. He then filed a motion for reconsideration of the said denial, which the appellate court, likewise, denied.According to the respondent, the complainant's case was initially handled by a different lawyer and was adversely decided by the trial court. The complainant, who was "cocksure" of winning his appeal before the Court of Appeals, approached the respondent regarding the said case. According to the respondent:… I told him that I would do my best to help him in his appeal but considering that the records of his case with the RTC, Cebu, was so voluminous, I had to study them well, because he might be filing an appeal which would just entail a big expense on his part, without any chance of having the adverse decision reversed by the appellate court;… There were very few more days left before the notice of appeal could be filed within the 15-day reglementary period when he approached me.4
The respondent further narrated that the last day for paying the docket fee was a Friday, and that he decided to pay the same through money order. He then went to the customs area at the waterfront in Cebu City, planning to send the docket fees through mail, addressed to the Clerk of Court of the Regional Trial Court where the case had been tried. However, the teller refused to accept the respondent's letter with offer to buy the money order for the docket fees in question. The respondent was told that his transaction could no longer be accepted because of the new policy that the postal office would no longer transact any business after 4:30 p.m. The respondent then had a heated argument with the postal employee, but no one wanted to accept his transaction. He then went to the other postal offices in the neighboring cities of Talisay and Mandaue to try his luck, which was an exercise in futility. He was able to purchase the money order and send the same only the following Monday.
The respondent, likewise, claimed that there was no agreement as to the amount of attorney's fees that he would charge, and considered the complainant's case as pro bono. After he told the complainant that it was customary for the client to spend the expenses in appealing a case and that it was usually considered as an acceptance fee, the complainant voluntarily gave him P20,000.00, and added another P20,000.00 three days later. Contrary to the complainant's claim, the respondent did not receive an additional amount of P10,000.00. He also averred that he promised to return the money to the complainant in case the appeal would not be successful. He was true to his word and returned the P40,000.00 to the complainant, as evidenced by a receipt.5 The respondent also stressed that he made a candid and honest opinion of the probable outcome of the case to the complainant, and informed the latter that it was going to be very hard to win in the appellate court.In a Resolution6 dated August 11, 2003, the case was referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.In his Position Paper dated May 21, 2004, the complainant reiterated the allegations in his complaint. He stressed that his appeal before the Court of Appeals was lost due to the negligence of the respondent, and, as such, the latter was liable for damages to the complainant.In his Report dated June 30, 2004, Investigating Commissioner Demaree J.B. Raval found that the complainant's appeal before the Court of Appeals had, indeed, been lost through the respondent's negligence. Thus:As a lawyer, Atty. Tecson should have been aware of the Rules. His negligence put to naught the remedies available to his client, that is, the appeal and the Motion for Reconsideration of the Resolution dated November 7, 2001.Atty. Tecson failed to file the corresponding docket fees, which he ought to know as a pre-requisite for the docketing of the appeal in the Court of Appeals. He also failed to file on time a motion for reconsideration on the adverse resolution of the Court of Appeals.Atty. Tecson even demanded from Complainant an additional amount of Php10,000.00 and the latter was made to believe that Atty. Tecson would personally go to Manila to file the said motion for reconsideration which was already prepared as of December 7, 2001. Yet, Atty. Tecson did not even see it fit to mail the Motion for Reconsideration immediately after it was prepared on December 7, 2001. The Motion for Reconsideration reached the Court of Appeals in Manila only on January 1, 2002, which was already three (3) weeks after the Motion for Reconsideration was prepared. Clearly, the Motion for Reconsideration was filed late, and Atty. Tecson had no plausible explanation for his negligence.Atty. Tecson had an obligation to the Complainant as regards the appeal. His gross negligence, committed twice over, was the root cause for the dismissal of the appeal.7
It was recommended that the respondent be reprimanded, having fallen short of the diligence required of him under the circumstances. The IBP Commission on Bar Discipline, thereafter, resolved to adopt and approve the recommendation of the Investigating Commissioner in Resolution No. XVI-2004-389 dated July 30, 2004.The findings of the Investigating Commissioner are well taken.It is settled that acceptance of money from a client establishes an attorney-client relationship and gives rise to the similar duty of fidelity to the client's cause.8 As we ruled in gr_ Perea v. Almadro:9
… [W]hile a lawyer may decline a person to become a client for valid reasons, once he agrees to take up the cause of a client, he begins to owe fidelity to such cause and must always be mindful of the trust and confidence reposed in him. As a lawyer, he must serve the client with competence and diligence, and champion the latter's cause with whole-hearted fidelity, care and devotion. Indeed, he owes entire devotion to the interest of his client, warm zeal in the maintenance and defense of his client's rights, and the exertion of his utmost learning and ability to the end that nothing be taken or withheld from his client, save by the rules of law legally applied. His client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land and he may expect his lawyer to assert every such remedy or defense.10
Indeed, Rule 18.03 enjoins a lawyer not to neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable. A lawyer engaged to represent a client in a case bears the responsibility of protecting the latter's interest with utmost diligence.11 Thus, it is the duty of a lawyer to serve his client with competence and diligence and he should exert his best efforts to protect within the bounds of the
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law the interest of his client.12 It is not enough that a practitioner is qualified to handle a legal matter; he is also required to prepare adequately and give the appropriate attention to his legal work.13
The Court rules that in failing to zealously attend to a legal matter entrusted to him, the respondent failed to live up to the duties and responsibilities of a member of the legal profession.It must be stressed that disbarment is the most severe form of disciplinary sanction, and, as such, the power to disbar must always be exercised with great caution for only the most imperative reasons and in clear cases of misconduct affecting the standing and moral character of the lawyer as an officer of the court and a member of the bar. Accordingly, disbarment should not be decreed where any punishment less severe - such as a reprimand, suspension, or fine - would accomplish the end desired.14 Considering that the respondent in this case returned the money for litigation expenses to the complainant after the denial of the motion for reconsideration, the Court sees fit to reprimand the respondent for his actuations.WHEREFORE, respondent Atty. Delano E. Tecson is adjudged GUILTY of violating Rule 18.03 of the Code of Professional Responsibility, and is hereby REPRIMANDED. He is STERNLY WARNED that similar conduct in the future shall be dealt with more severely.Let a copy of this Decision be included in the respondent's files which are with the Office of the Bar Confidant, and circularized to all courts and to the Integrated Bar of the Philippines.SO ORDERED.FIRST DIVISIONA.C. No. 5302 February 18, 2005MARCIAL L. ABIERO, complainant, vs.ATTY. BERNARDO G. JUANINO, respondent.D E C I S I O NYNARES-SANTIAGO, J.:A lawyer owes fidelity to the cause of his client at all times, mindful of the trust and confidence reposed in him. He must always serve with competence and diligence, and never neglect a legal matter entrusted to him. An attorney should endeavor to keep his client informed of the status of his case and respond within a reasonable time to the latter’s request for information. Failure to comply with these abiding precepts of ethical conduct renders counsel liable for violating the canons of his profession.On July 20, 2000, an administrative complaint1 was filed by Marcial L. Abiero charging respondent Atty. Bernardo G. Juanino with negligence in connection with a legal matter entrusted to him.It appears that complainant engaged the services of respondent of the law firm P.C. Nolasco and Associates as counsel de parte in NLRC NCR OCW Case No. 00-12-00904-95.2 On January 29, 1998, Labor Arbiter Eduardo J. Carpio ruled in favor of complainant by ordering the respondents to pay complainant his unpaid wages and unpaid vacation leave pay, to refund his plane fare and to pay moral damages and attorney’s fees.31ªvvphi1.nétOn appeal, the National Labor Relations Commission reversed the arbiter’s decision and dismissed the case for lack of basis.4
For several times, complainant, either personally or through his designated agents, tried to follow up the status of the case. Each time, respondent would advise him to call on a later date at which time he may have some news of any development with the case.5
Respondent filed with the Court of Appeals a motion for extension of time to file a petition for review and paid the corresponding docket fee.When complainant verified with the Court of Appeals the status of the case, he found out that respondent never filed a Petition for Review of his labor case. Consequently, the NLRC decision became final and executory. Thus, complainant filed this administrative complaint against respondent.On August 30, 2000, respondent was required to file his comment within 10 days from notice.6 On September 25, 2000, respondent requested for additional time to file comment.7 Subsequently, respondent filed a series of motions for extension to file comment. On February 28, 2001, respondent was warned that no further extension shall be granted.8 Notwithstanding, and despite 11 extensions, respondent still failed to file his comment.
Consequently, on July 29, 2002, respondent was required to show cause why he should not be disciplinarily dealt with or held in contempt for failure to comply with our directives.9
On September 2, 2002, respondent filed his Compliance with Motion for Final Twelve (12) Day Extension With No Further Extension.10
Finally, on September 17, 2002, respondent filed his comment11 together with a Motion to Admit Comment Filed One Day Late.In a Resolution dated October 21, 2002, respondent’s Motion to Admit Comment Filed One Day Late was referred to the Integrated Bar of the Philippines for investigation, report and recommendation.12
As summarized, respondent alleged by way of defense, the following:(1) that complainant became respondent’s client after respondent handled these cases for complainant’s uncle Aniceto Encio and his family namely Criminal Case No. F-10088, POEA Case No. M-91-06-602, I.S. No. 93 E-17909 and POEA Case No. L-93-04-610; that respondent successfully handled these cases which led to the dismissal of the criminal case against Aniceto Encio and recovery of monetary awards in the other cases; (2) that NLRC NCR OCW Case No. 00-12-00904-95 was referred by Aniceto Encio to respondent for handling; that herein complainant and Aniceto Encio requested respondent not to charge them an acceptance fee for said case and instead offered to pay respondent 30% of any monetary award recovered in said case; … that on appeal to the National Labor Relations Commission, the Decision of Labor Arbiter Carpio was reversed and NLRC OCW Case No. 00-12-00904-95 was dismissed by the NLRC for lack of merit; … (4) that at the time respondent advanced the docket fees, complainant and respondent did not have any agreement that a Petition for Certiorari would be filed with the Court of Appeals; … (5) that weeks later, when complainant reimbursed respondent for the docket fees he had advanced, respondent advised complainant and his uncle that respondent intended to appeal the Decision of the NLRC to the Court of Appeals and so he filed a Petition for Extension of Time to File Petition …; (7) that there was an error in judgment on respondent’s part when instead of filing a Petition for Certiorari as originally intended, respondent chose to pursue another course of action, that of entertaining the idea of filing a Motion for Execution to enforce the Labor Arbiter’s Decision against the other respondents who did not appeal said Decision; (8) that respondent pleads good faith in the subsequent course of action taken; that respondent entertained the idea that he could enforce the original Decision through a Motion for Execution; … (9) that respondent tried his best to win complainant’s labor case and in fact, he won it at the Labor Arbiter’s level; (10) that respondent appeals to the sense of fairness of complainant; that in the 4 cases respondent handled for complainant and his uncle, respondent won 3 cases for them especially the criminal complaint for Homicide against complainant’s uncle; that in said criminal case, respondent did not charge a single centavo for attorney’s fees.13
In his letter-reply filed on February 7, 2003, complainant averred the following statements originally in the vernacular:… it is not true that there was no acceptance fee because complainant paid respondent the amount of P1,500 plus the amount of P500 per hearing but no receipts were issued for these payments; that there is no truth to respondent’s allegation that complainant was in the province because complainant’s uncle called respondent 3 times a week to follow-up the Petition for Review; that it was actually complainant who paid for the docket fees but respondent who physically paid the same to the Court of Appeals; and that respondent made several promises to complainant’s uncle regarding the status of the Petition for Review but nothing came out of said promises.14
The lone issue for resolution is whether respondent violated Canons 17 and 18 of the Code of Professional Responsibility.In its Report and Recommendation, the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP),15 held that there was no sufficient justification for respondent’s failure to file the petition for review with the Court of Appeals. It found that respondent was aware of the period for filing said petition because he himself paid the docket fees and filed the Motion for Extension of Time to File the Petition for Review . His claim that he was pursuing another legal remedy in the labor case did not justify his failure to file the petition for review within the prescribed period. Complainant had placed his trust in respondent to handle his claims against his previous
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employer. Failure to comply with his legal duty as counsel of complainant in NLRC NCR OCW Case No. 00-12-00904-95 has caused damage and prejudice to the latter. Thus, in failing to file the petition for review, respondent was held to have breached Canons 17 and 18 of the Code of Professional Responsibility. The Commission on Bar Discipline of IBP recommended that respondent be suspended from the practice of law for a period of six (6) months.16
The Board of Governors of the Integrated Bar of the Philippines, adopted the Report and Recommendation of the Investigating Commissioner, thus:RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution/Decision as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering respondent’s violation of Canons 17 & 18 of the Code of Professional Responsibility by failing to file the Petition for Certiorari, Atty. Bernardo G. Juanino is hereby SUSPENDED from the practice of law for six (6) months.17
We agree with the findings of the IBP Investigating Commissioner.The lawyer has the duty to exert his best judgment in the prosecution or defense of the case entrusted to him and to exercise reasonable and ordinary care and diligence in the pursuit or defense of the case.18 By his own admission, respondent entertained the idea of filing a motion for execution, thus:I honestly believed then that since the other respondents did not appeal the Decision to the Commission of the NLRC, I could enforce the Decision (See THIRD REASON) against these other respondents who did not appeal. So undersigned went to Honorable Labor Arbiter Eduardo J. Carpio and explained to him about my plan to file a Motion for Execution against the other respondents who did not appeal the Decision to the Commission of the NLRC. I was not able to see him the first two times that I went as I was informed he was assigned to certain task force and when I saw him the third time, Honorable Labor Arbiter Eduardo J. Carpio informed me that since decision was reversed on appeal and the complaint dismissed, there would be no basis for filing a Motion for Execution to enforce Decision. I was dumbfounded as the period to file a Petition for Certiorari already expired.19
As a lawyer, respondent should know that he is not required to seek prior approval from the labor arbiter before he could file a motion for execution. Notwithstanding, he presented himself, not once, but thrice, before the office of the arbiter to discuss his plan to file a motion for execution, only to discover that such recourse was not feasible. Worse, while respondent was waiting for the arbiter’s opinion, the period to file the petition before the Court of Appeals continued to run, as in fact, it eventually expired.Failure to appeal to the Court of Appeals despite instructions by the client to do so constitutes inexcusable negligence on the part of counsel. Once a lawyer consents to defend the cause of his client, he owes fidelity to such cause and must at all times be mindful of the trust and confidence reposed in him. He is bound to protect his client’s interest to the best of his ability and perform his duties to his client with utmost diligence. Nothing less can be expected from a member of the Philippine Bar. For having neglected a legal matter entrusted to him by his client, respondent did not serve his client with diligence and competence. His inexcusable negligence on such matter renders him liable for violation of Canons 17 and 18 of the Code of Professional Responsibility.20
As we held in the recent case of Barbuco v. Atty. Beltran,21 an attorney is bound to protect his client’s interest to the best of his ability and with utmost diligence. Thus, failure to file brief for his client certainly constitutes inexcusable negligence on his part, especially if such failure took the form of filing a pleading after the deadline for filing the same has passed. Respondent has indeed committed a serious lapse in judgment in failing to perform his professional duty to his client under the canons of his profession.The failure to timely file a pleading is by itself a sin of omission on the part of the respondent. However, complainant’s travails were further compounded by the failure of the respondent to maintain an open line of communication with his client in direct contravention of Canon 18, Rule 18.04 of the Code of Professional Responsibility which requires a lawyer to keep his client informed of the status of his case and respond within a reasonable time to the client’s request for information.22
In Legarda v. Court of Appeals,23 counsel’s failure to exercise due diligence in protecting the interest of his client caused the latter material prejudice. The moment counsel takes a client’s cause, he covenants that he will exert
all effort for its prosecution until its final resolution.l^vvphi1.net A lawyer who fails to exercise due diligence or abandon’s his client’s cause makes him unworthy of the trust reposed on him by the latter; he owes fealty, not only to his client, but also to the Court of which he is an officer.24
We observed in Pariñas v. Atty. Paguinto25 that a lawyer should give adequate attention, care and time to his client’s case. Once he agrees to handle a case, he should undertake the task with dedication and care. If he fails in this duty, he is not true to his oath as a lawyer. Thus, a lawyer should accept only as much cases as he can efficiently handle in order to sufficiently protect his clients’ interests. It is not enough that a lawyer possesses the qualification to handle the legal matter; he must also give adequate attention to his legal work. Utmost fidelity is demanded once counsel agrees to take the cudgels for his client’s cause.1a\^/phi1.netIn Barbuco v. Atty. Beltran, Guiang v. Atty. Antonio,26 and Sps. Villaluz v. Judge Armenta,27 the Court suspended counsel for six months upon a finding that their failure to perfect an appeal was inexcusable and persuasively demonstrative of negligence and malpractice, a violation of Rule 18.03 of the Code of Professional Responsibility which declares that "a lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable."We cannot overstate the duty of a lawyer to uphold the integrity and dignity of the legal profession at all times. He can do this by faithfully performing his duties to society, to the bar, to the courts and to his clients.28
Incidentally, we note that respondent delayed the filing of the comment for more than two (2) years. Despite numerous extensions, which were all granted, still, he filed the comment one (1) day late. By neglecting his duties to his client and to this Court, respondent transgressed the canons of legal ethics enshrined in the Code of Professional Responsibility. Such misconduct should not be countenanced.1a\^/phi1.netWHEREFORE, in view of the foregoing, respondent Atty. Bernardo G. Juanino is found guilty of negligence and is SUSPENDED from the practice of law for six (6) months effective upon receipt of this Decision, with a WARNING that a repetition of the same or similar acts will be dealt with more severely.Let a copy of this Decision be furnished to the Office of the Bar Confidant, the Integrated Bar of the Philippines, and all courts in the Philippines, for their information and guidance.SO ORDERED.FIRST DIVISIONA.C. No. 3523 January 17, 2005RASMUS G. ANDERSON, JR., petitioner, vs.ATTY. REYNALDO A. CARDEÑO, respondent.R E S O L U T I O NAZCUNA, J.:For resolution is an administrative case against Atty. Reynaldo A. Cardeño for malpractice and neglect of duty, stemming from his alleged neglect or deliberate mishandling of a case involving herein petitioner, resulting to the latter’s prejudice.After receipt of the complaint and the corresponding comment thereto, this Court, on October 17, 1990, referred the matter to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.On April 6, 1998, this Court received a Manifestation from the IBP Investigating Commissioner Victoria Gonzales de los Reyes stating that when the case was referred to the IBP, the same was initially handled by Commissioner George Briones. In view of the fact that the case had only been recently re-assigned to her, she needed time within which to investigate as well as prepare the required report and recommendation.Thereafter, on March 13, 2001, Commissioner de los Reyes submitted her Report and Recommendation to the IBP Board of Governors. In turn, the IBP Board of Governors passed Resolution No. XIV-2001-187, dated April 29, 2001, remanding the Report and Recommendation to the Investigating Commissioner, requiring the latter "to make the recommendation clearer and review the report."Upon review of the records, the Investigating Commissioner affirmed her findings and maintained her recommendation. In turn, the IBP Board of Governors adopted the said report, with a modification of the
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recommended penalty of three months suspension, to a penalty of six months suspension, from the practice of law.The records show the following antecedent facts:Complainant Rasmus G. Anderson, Jr., an American citizen from Kodiak, Alaska, USA, filed an action before the then Court of First Instance of Rizal (Pasig), to recover title and possession of a parcel of land against the spouses Juanito Maybituin and Rosario Cerrado, and Fernando Ramos. The case was dismissed by the trial court, which declared the defendants the true and lawful owners of their respective portions of the land in question.On appeal, the Court of Appeals (CA), 3rd Civil Cases Division, in AC-G.R. CV No. 68459, modified1 the decision of the trial court, stating:WHEREFORE, the decision is hereby modified by ruling that the respective Torrens Titles in the names of the defendants spouses Maybituin and Fernando Ramos are maintained at this stage but without prejudice on the part of the plaintiff to institute an action for reconveyance thereof after determining his rightful share from the estate of his late father.Costs against the appellant.SO ORDERED.2
The CA judgment was not appealed and, thereafter, it was duly entered.On February 16, 1985, Anderson, Jr., through his counsel Atty. Cesar S. de Guzman, filed an Amended Complaint before the Regional Trial Court (RTC) of Binangonan, Rizal, Branch 67, docketed as Civil Case No. 0110-B, entitled "Rasmus Anderson, Jr., Plaintiff v. Spouses Juanito Maybituin and Rosario Cerrado, et al., Defendants."3
It was at this stage of the proceedings when Atty. Cesar S. de Guzman died. Anderson, Jr. was now without a counsel to represent him. Upon referral by a friend, Anderson, Jr. engaged the services of herein respondent Atty. Reynaldo A. Cardeño.On July 19, 1990, Rasmus G. Anderson, Jr., filed an administrative complaint4 before this Court wherein he alleged that respondent Atty. Reynaldo A. Cardeño caused "the loss" or the adverse ruling against him in the aforementioned case before the RTC, Civil Case No. 0110-B. Specifically, complainant alleged the following:1.) That when the respondents in the civil case filed a Demurrer to Evidence, Atty. Cardeño did not file an opposition thereto and did not appear at the formal hearing set for the purpose of considering the merits of the demurrer. Thus, in addition to finding merit in the demurrer, the trial court, noting the non-appearance of Atty. Cardeño, assumed that even he, the plaintiff’s counsel, appeared convinced that there was merit, validity and reasonableness in the demurrer filed;2.) That after the trial court issued an Order finding the respondents’ demurrer to evidence meritorious, Atty. Cardeño did not even file a Motion for Reconsideration thereof, which in turn caused the same order to become final and executory;3.) That even prior to the above events and in view of what the complainant perceived to be respondent lawyer’s loss of interest in the case, complainant verbally told Atty. Cardeño to withdraw as his counsel. However, Atty. Cardeño allegedly insisted on continuing to represent the complainant as the case was already in its closing stage.Complainant concludes that Atty. Cardeño abused his client’s trust and confidence and violated his oath as a lawyer in failing to defend his client’s cause to the very end. Complainant prays that Atty. Cardeño be disbarred.When asked to comment, Atty. Cardeño replied:1.) That complainant was being ungrateful to him. In the first place, he was only asked by a good friend of the complainant Anderson, Jr., to step into the shoes of the latter’s deceased counsel. He accommodated the request and took the case, even without personally meeting the complainant, as the latter was residing in the United States;2.) That as a client, complainant Anderson, Jr., did not give him full cooperation. Although voluminous records were turned over to him, they were "in disarray". Atty. Cardeño alleges that when he began representing the complainant in court, he had to "proceed and appear with only half the information[] and background[] of the case, and not knowing the person he was representing." He allegedly did his best to familiarize himself with the case, although there were several questions left unanswered by the complainant’s good friend;
3.) That their first meeting happened at the time he was about to present their last witness. At that time, Anderson, Jr.’s deposition had already been taken by his former counsel, now deceased. Atty. Cardeño then asked Anderson, Jr., about the regularity of the taking of said deposition, and the latter assured him that his former counsel had exhaustively examined him and that said deposition had been regularly taken;4.) That the same was the first and only occasion when he personally met complainant. At no time during said meeting did complainant ask him to withdraw from the case;5.) That from the records he had on hand, and based on the reputation of complainant’s deceased counsel, Atty. Cardeño saw no need to present complainant again to testify in court. This was also in view of the fact that complainant was then in a hurry to leave the country, and also because of complainant’s assurances that the deposition previously made would suffice;6.) That it was a "big surprise" for him later to discover that the taking of the deposition was irregular as it was done without the presence of counsels and parties, and without the proper notices. This led the other party to file a demurrer to evidence;7.) That the "biggest blow and surprise" to him was when he was approached by "good friends" of the complainant and these friends told him that "they have good access and have made arrangements with the Presiding Judge." He was asked by these friends to prepare the motion for reconsideration, which he "obligingly did" and thereafter he gave said motion to these friends, for them to file. However, these friends did not furnish or return a copy of said motion for his files and reference;8.) That true to his oath as a lawyer, Atty. Cardeño considers the representations of the complainant’s good friends to be in bad taste; that he "could not join complainant’s good friends in their plans to corrupt" the judge; that he considers this course of action of these friends of the complainant to imply that "he is no longer needed as a lawyer and that they have made their own ways";9.) That because of these actions of the friends of the complainant which respondent considers contrary to his duty as an officer of the court, and also against the respect due to the courts, respondent asked to be relieved of his duties as counsel but said request was refused.Thus, respondent Atty. Cardeño concluded that complainant cannot accuse him of deliberately causing their defeat in the case when he, Atty. Cardeño, did his best with such little information, support and cooperation given by the complainant and the latter’s friends. It was in fact complainant and his friends who chose to take "another path" to deal with the case. Complainant, he claims, erroneously thinks that a lawyer must do everything, even crooked or illegal acts, in order to win a case. Atty. Cardeño then asserted that he has to uphold his oath as a lawyer and so he refused when complainant’s friends proposed to employ acts to corrupt the judge or proceed with the case in dubious ways.In the aforesaid Report and Recommendation of IBP Commissioner Victoria G. de los Reyes, it was found:After having considered the position taken by each party in the instant case, this Commission has arrived at a conclusion that there is apparent lack of interest on the part of the Complainant to further pursue his case. The complainant could have appeared personally and present his evidence or could have his deposition taken to support the allegations contained in his complaint. What he did was just to send a representative by the name of Bienvenido Maregmen. Clearly, this is not sufficient to show the needed enthusiasm and interest to support his accusations against the respondent.We sustain the respondent in his position that he should be given the opportunity to confront the complainant and cross-examine him. Here, the complainant failed to appear despite the several settings of hearings in this case. Based on this alone, this Commission could have recommended the dismissal of the instant complaint for failure of the complainant to substantiate his charges against the respondent.However, the respondent has indubitably failed to perform an obligation which he owed to his client, the herein complainant. The respondent himself categorically stated in his Comment filed with the Honorable Supreme Court on October 2, 1990 that he prepared a Motion for Reconsideration in the case entitled "Rasmus Anderson v. Juanito Maybituin, et al.", Civil Case No. 0110-B, then pending in the Regional Trial Court of Rizal, Branch 67-Binangonan. But that certain "good friends" of the complainant made representations to him that they already made arrangements with the presiding judge who they claimed had already been "bought". Respondent allowed
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these persons to take over in the filing of the Motion for Reconsideration and did not even bother to check with the Court if the same has been filed or not.Clearly, the respondent was guilty of neglect of duty and this is a violation of Canon 18 of the Code of Professional Ethics, which provides that a lawyer shall serve his client with competence and diligence; particularly, Rule 18.03 thereof which states that "a lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable". He likewise breached his duty to the Honorable Supreme Court to report "corrupt" judges for appropriate disciplinary action with the aim of improving the quality of justice and in helping restore the people’s faith in our judicial system.5
As aforestated, the IBP Board of Governors thereafter issued Resolution XVI-2004-68 dated February 27, 2004, which "x x x ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner x x x, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, with modification, and considering respondent’s violation of Rule 18.03, Canon 18 of the Code of Professional Responsibility x x x" recommended that Atty. Reynaldo Cardeño be suspended from the practice of law for six (6) months and that he be warned that a graver penalty would be imposed should he commit the same offense in future.l^vvphi1.netThis Court sustains the findings and recommendations of the IBP Board of Governors.It is undisputed that Atty. Cardeño was engaged by the complainant as counsel. By accepting the case, respondent should have known the attendant responsibilities that came with the lawyer-client relationship.These imperatives were pointedly explained in Pariñas v. Atty. Oscar P. Paguinto:6
Paguinto should know that as a lawyer, he owes fidelity to the cause of his client. When a lawyer accepts a case, his acceptance is an implied representation that he possesses the requisite academic learning, skill and ability to handle the case. The lawyer has the duty to exert his best judgment in the prosecution or defense of the case entrusted to him and to exercise reasonable and ordinary care and diligence in the pursuit or defense of the case.A lawyer should give adequate attention, care and time to his case. Once he agrees to handle a case, he should undertake the task with dedication and care. If he fails in this duty, he is not true to his oath as a lawyer. Hence, a lawyer must accept only as much cases as he can efficiently handle, otherwise his clients' interests will suffer. It is not enough that a lawyer possesses the qualification to handle the legal matter. He must also give adequate attention to his legal work.The lawyer owes it to his client to exercise his utmost learning and ability in handling his cases. A license to practice law is a guarantee by the courts to the public that the licensee possesses sufficient skill, knowledge and diligence to manage [his] cases. The legal profession demands from a lawyer the vigilance and attention expected of a good father of a family.7
Thus, respondent’s defenses that the complainant was "uncooperative" as a client, that the voluminous records turned over to him were in disarray, and that the complainant did not disclose to him certain particulars of the case, are all unavailing.First, it was incumbent upon Atty. Cardeño to insist on his client’s participation in the proceedings in the case. While the complainant shares the responsibility for the lack of communication between lawyer and client, Atty. Cardeño should not have depended entirely on the information his client gave or the time his client wished to give them. As a lawyer representing the cause of his client, he should have taken more control over the handling of the case. Knowing that his client was based in the United States should, with more reason, have moved him to secure all the legal means available to him either to continue representing his client effectively or to make the necessary manifestation in court, with the client’s conformity, that he was withdrawing as counsel of record. That his client did not agree to terminate his services is a mere allegation that has not been substantiated.Thus, in view of the fact that he remained counsel of record for the complainant, it was highly irregular for him to entrust the filing of the Motion for Reconsideration to other people who did not lawfully appear interested in the subject litigation.In the same case of Paguinto, citing Gamalinda v. Alcantara,8 this Court stated:
A lawyer owes fidelity to the cause of his client and must be mindful of the trust and confidence reposed in him. He shall serve his client with competence and diligence, and his duty of entire devotion to his client's cause not only requires, but entitles him to employ every honorable means to secure for the client what is justly due him or to present every defense provided by law to enable the latter's cause to succeed. An attorney's duty to safeguard the client's interests commences from his retainer until his effective release from the case or the final disposition of the whole subject matter of the litigation. During that period, he is expected to take such reasonable steps and such ordinary care as his client's interests may require.9
The Court therein declared that a lawyer’s failure to do so violates Canon 18 of the Code.l^vvphi1.net It added that the said rule is clear in its mandate that a lawyer should not undertake a legal service that he is not qualified to render, nor should a lawyer handle any legal matter without adequate preparation. A lawyer has the duty to prepare for trial with diligence and deliberate speed and he should not neglect a legal matter entrusted to him, for his negligence shall render him liable.10
From the records it is evident that Atty. Cardeño has fallen short of the professional standards this Court has set for members of the Bar. A lawyer should never neglect a legal matter entrusted to him, otherwise his negligence in fulfilling his duty subjects him to disciplinary action. Respondent is reminded that the practice of law is a special privilege bestowed only upon those who are competent intellectually, academically and morally. This Court has been exacting in its expectations for the members of the Bar always to uphold the integrity and dignity of the legal profession and refrain from any act or omission which might lessen the trust and confidence of the public.111awphi1.nétWHEREFORE, respondent Atty. Reynaldo A. Cardeño is hereby found guilty of violating Canon 18 of the Code of Professional Responsibility and his lawyer's oath. He is SUSPENDED from the practice of law for six (6) months effective from notice and is WARNED that any similar infraction in the future will be dealt with more severely.Let a copy of this Resolution be entered in the record of respondent as a member of the Bar.SO ORDEREDEN BANCA.C. No. 5835 August 10, 2010CARLOS REYES, Complainant, vs.ATTY. JEREMIAS R. VITAN, Respondent.x - - - - - - - - - - - - - - - - - - - - - - -xA.C. No. 6051CELIA ARROYO-POSIDIO, Complainant, vs.ATTY. JEREMIAS R. VITAN, Respondent.x - - - - - - - - - - - - - - - - - - - - - - -xA.C. No. 6441VIOLETA TAHAW, Complainant, vs.ATTY. JEREMIAS R. VITAN, Respondent.x - - - - - - - - - - - - - - - - - - - - - - -xA.C. No. 6955MAR YUSON, Complainant, vs.ATTY. JEREMIAS R. VITAN, RespondentR E S O L U T I O NNACHURA, J.:This refers to the undated Petition filed with the Office of the Bar Confidant (OBC) on July 28, 2009 by Atty. Jeremias R. Vitan, praying that he be reinstated as member in good standing of the Philippine Bar and be allowed
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to resume the practice of law, claiming that he had already served the penalty of suspension imposed on him, and that he is now reformed.As background, four (4) administrative cases were filed against Atty. Jeremias R. Vitan, in each of which he was found guilty and meted the penalty of suspension from the practice of law.In the first case, A.C. No. 6441, (Violeta R. Tahaw v. Atty. Jeremias R. Vitan), promulgated on October 21, 2004,1Atty. Vitan was suspended forsix (6)months, effective immediately upon receipt of the Decision. He was further ordered to return the amount ofP30,000 to complainant for legal services he did not render. The records disclose that respondent received the Decision on November 12, 2004 and the period of suspension would have ended on May 12, 2005.In A.C. No. 5835, (Carlos B. Reyes v. Atty. Jeremias R. Vitan), promulgated on April 15, 2005,2 Atty. Vitan was suspended for six (6) months; and ordered to pay complainant P17,000.00 with interest of 12% per annum from the date of the promulgation of the Decision until the full amount shall have been returned. Per records, the Court’s decision was received by him on May 13, 2005, and his suspension would have ended on November 13, 2005.In A.C. No. 6955 (Mar Yuson v. Atty. Jeremias R. Vitan), promulgated on July 27, 2006,3 respondent was found liable for his failure to pay a just debt in the amount of P100,000.00. Upon investigation, the Integrated Bar of the Philippines (IBP) imposed the penalty of Suspension for two (2) years. This was modified by the Court after finding that there was partial payment of the loan, and the penalty was reduced to six (6) months suspension with warning, effective upon receipt of the Decision. In a Motion to Lift Order of Suspension, respondent moved for the reconsideration of the decision, asserting that there was full payment of the loan. The motion was denied in the Resolution dated March 6, 2007.In this connection, the OBC noted respondent’s shrewdness by moving out of his given address to evade receipt of the copy of the decision/resolutions of the Court. After diligent efforts at searching for respondent’s correct address proved unavailing, the Court in its Resolution dated July 17, 2007, considered the March 6, 2007 Resolution as having been served on respondent.In the decision in the fourth case, A.C. No. 6051, (Celia Arroyo-Pesidio v. Atty. Jeremias R. Vitan), promulgated on April 2, 2007,4 respondent was found to have failed to render the legal services sought after he had received the amount of P100,000, and was once again, suspended for one (1) year, with stern warning. The Decision was received on April 18, 2007, so the suspension period should have lapsed on April 18, 2008.Upon the recommendation of the OBC, the four administrative cases were consolidated.5
In a Report dated February 23, 2010, the OBC noted that respondent has been repeatedly suspended from the practice of law, for an aggregate period of 30 months or 2 ½ years. Accordingly, respondent should have served the orders of suspension successively pursuant to the Court’s resolution in A.M. No. RTJ-04-1857, entitled "Gabriel de la Paz v. Judge Santos B. Adiong," where the Court clearly stated that "in case of two or more suspensions, the same shall be served successively by the erring respondent."6 It is, therefore, incumbent upon respondent to show to the Court that he has desisted from the practice of law for a period of at least 2 ½ years.1avvphi1The Court, in the recent case of Ligaya Maniago v. Atty. Lourdes I. De Dios,7 issued the guidelines on the lifting of orders of suspension, and has advised strict observance thereof. However, the Court will not hesitate to withhold the privilege of the practice of law if it is shown that respondent, as an officer of the Court, is still not worthy of the trust and confidence of his clients and of the public.Thus, applying the guidelines in Maniago, the Court Resolved to GRANT Respondent’s Petition for Reinstatement, effective upon his submission to the Court of a Sworn Statement attesting to the fact:1) that he has completely served the four (4) suspensions imposed on him successively;2) that he had desisted from the practice of law, and has not appeared as counsel in any court during the periods of suspension, as follows:(a) Six (6) months suspension in A.C. No. 5835 from May 13, 2005 to November 13, 2005;(b) One (1) year suspension in A.C. No. 6051 from April 18, 2007 to April 18, 2008;(c) Six (6) months suspension in A.C. No. 6441 from November 12, 2004 to May 12, 2005; and
(d) Six (6) months suspension in A.C. No. 6955 from date of receipt of the Resolution dated March 6, 2007 denying the Motion for Reconsideration of the Decision dated July 27, 2006.3) that he has returned the sums of money to the complainants as ordered by the Court in the following cases, attaching proofs thereof:(a) In A.C. No. 5835 – the sum of P17,000 with interest of 12% per annum from the date of promulgation of the Decision until the full amount shall have been returned; and(b) In A.C. No. 6441 – the amount of P30,000.Atty. Jeremias R. Vitan is further directed to FURNISH copies of the Sworn Statement to the Integrated Bar of the Philippines and Executive Judge(s), as mandated in Maniago.Any finding or report contrary to the statements made by the Respondent under oath shall be a ground for the imposition of a more severe punishment, or disbarment, as may be warranted.SO ORDEREDEN BANCA.C. No. 7181 February 6, 2009MARIA ANGALAN, NENA ANGALAN, DIONICIO ANGALAN, MAGDALENA ANGALAN, FRANCISCA ANGALAN, INIS ANGALAN, ROSALINO ANGALAN, AND JOSEFINA ANGALAN, ALL OF WHOM ARE HEIRS OF ANGALAN SAMAL married to SANAAN SAMAL, Complainants, vs.ATTY. LEONIDO C. DELANTE, Respondent.D E C I S I O NPER CURIAM:This is a complaint filed by Maria, Nena, Dionicio, Magdalena, Francisca, Inis, Rosalino, and Josefina Angalan (complainants) against Atty. Leonido C. Delante (respondent) for gross violation of the Code of Professional Responsibility.Complainants are the heirs of Angalan Samal (Angalan) and Sanaan Samal (Sanaan). Complainants allege that they are illiterate and belong to the Samal Tribe. Angalan, Sanaan, and complainants owned a 9.102-hectare parcel of land in Barrio San Jose, Kaputian, Island Garden City of Samal, Davao del Norte. The property was covered by Original Certificate of Title (OCT) No. P-11499.1
On 15 April 1971, Angalan and complainants borrowed P15,000 from Navarro R. Eustaquio and Arabella P. Eustaquio (Spouses Eustaquio). To secure the loan, Angalan and complainants mortgaged 8.102 hectares of the 9.102-hectare property and surrendered OCT No. P-11499 to the Spouses Eustaquio. The Spouses Eustaquio prepared a document2 and asked Angalan and complainants to sign it. Angalan and complainants affixed their thumb marks on the document.When complainants tried to pay the loan and recover OCT No. P-11499 from the Spouses Eustaquio, the Spouses Eustaquio refused. Complainants learned that the document which the Spouses Eustaquio prepared, and which complainants signed, was a deed of absolute sale and not a real estate mortgage. They also learned that Navarro R. Eustaquio (Navarro) had transferred the title over the 8.102-property to his name — OCT No. P-11499 was canceled and Transfer Certificate of Title (TCT) No. T-99263 in the name of Navarro was issued.1avvphi1.zw+Complainants engaged the services of respondent for the purpose of recovering their property. In a receipt4 dated 18 November 1970, respondent acknowledged receipt of P1,200 from Francisca Angalan and her husband, Macario Capul (Capul), representing the full payment of his professional fees: "Received from Mr. MACARIO CAPUL and FRANCISCA RAFAEL CAPUL the sum of ONE THOUSAND TWO HUNDRED PESOS (P1,200.00) representing full payment of professional services in regard to recovery of Original Certificate of Title No. P-11499 in the name of Angalan (Samal)."Respondent filed a complaint5 dated 13 April 1976 with the then Court of First Instance (CFI), now Regional Trial Court (RTC), Judicial Region XVI, Tagum, Davao stating that:2. x x x Angalan Samal and his children x x x are the original patentees of a certain parcel of land, situated in Ombay, Samal, Davao, covered under Original Certificate of Title No. P-11499, of the Registry of Deeds of Davao,
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having acquired the same under HP-No. 65310, pursuant to the provisions of the Homestead Laws of the Public Land Law (C.A. 141);3. x x x [O]n April 15, 1971, the herein original patentees x x x sold and conveyed said parcel of land covered by the aforesaid title to the herein defendants for the sum of FIFTEEN THOUSAND PESOS (P15,000.00) x x x;4. x x x [U]nder the provisions of the Public Land Law, particularly Section 119 thereof and even on the face of the title of said property now under the name of the defendants x x x the herein plaintiffs have the right to repurchase said property within a period of five (5) years from the date of the conveyance;x x x x7. [A]s a matter of right under the law, the herein plaintiffs are entitled to the produce of the property at least beginning April 8, 1976;x x x x9. [B]y reason of unwarranted refusal on the part of the defendants to reconvey the property to plaintiffs, the latter have been constrained to engage, and in fact have engaged, the services of counsel x x x6
Complainants and the Spouses Eustaquio entered into an amicable settlement. In the amicable settlement7 dated 3 September 1977, the parties stated that:1. x x x [T]he plaintiffs have offered to the defendant[s] the sum of P30,000.00 as repurchase price which the defendant[s accept];2. x x x [U]pon the signing hereof, the plaintiffs shall pay the defendant[s] the sum of P15,000.00 and for this purpose hereby authorize the defendants to collect the same from the Clerk of Court which amount had been deposited with this Honorable Court; Likewise, upon signing hereof the Deed of Reconveyance shall be immediately executed and delivered by the defendants to plaintiff[s];3. x x x [W]hile the balance of P15,000.00 has not been paid, the defendant[s] shall continue to possess, and if necessary to gather the produce of the property, however, upon receipt of the defendant[s] of the balance of P15,000.00, said defendants together with [their] agent and/or worker, Alfredo Rabadon shall clear the area and turnover the same within fifteen (15) days from receipt [of] said balance.8
In a Decision9 dated 30 September 1977, the CFI approved the amicable settlement.Complainants did not have the P30,000 repurchase price for the property. Respondent advanced the P30,000 and, in return, complainants allowed respondent to possess the property and gather its produce until he is paid. In a letter10 dated 10 January 1979 and addressed to the barrio captain of Umbay, Samal, Davao del Norte, respondent stated that:This will inform you that the Heirs of Angalan Samal have already redeemed their property through me from Mr. Navarro Eustaquio since September, 1978. In my capacity as counsel of the Heirs of Angalan Samal and owner of the money in redeeming the property, I have authorized Mr. Macario Capol to take over the possession of the property together with the harvesting of the matured coconuts.1avvphi1When complainants tried to repay the P30,000 repurchase price and recover the property from respondent, respondent refused. Complainants learned that respondent transferred the title of the property to his name — TCT No. T-9926 was canceled and TCT No. T-5793211 in the name of respondent was issued.Complainants filed a complaint12 dated 30 April 2004 with the RTC, Judicial Region XI, Branch 34, Davao City praying that (1) the deed of absolute sale prepared by the Spouses Eustaquio and signed by the complainants be declared void, (2) TCT No. T-57932 be declared void, and (3) respondent be made to pay damages. The case was docketed as Civil Case No. 57-2004. In his answer13 dated 29 December 2004, respondent stated that:[In] 1971, ANGALAN (SAMAL) [now deceased) [sic] together with his son-in-law, MACARIO CAPUL, the latter being the town mate of herein defendant Delante in Danao, Cebu and who is married to the daughter of the late ANGALAN (SAMAL), came to herein defendant’s office and sought for an advice to borrow money;x x x [T]he late ANGALAN (SAMAL) together with his children in company with MACARIO CAPUL, were directed by herein defendant to inform him why it was necessary for them to borrow money and for whatever [sic] purpose; after their story, herein defendant disagreed as to their justification in borrowing money which was for no other purpose except to have money on their own;x x x x
It is preposterous for plaintiff[s] to claim that they had [sic] engaged the professional services of herein defendant to file an annulment case since plaintiffs never came back apparently ashamed when they were driven out, but worse they had [sic] never paid the herein defendant a single centavo for purposes of filing an annulment case against co-defendant NAVARRO EUSTAQUIO;x x x [T]he transfer of said property consisting of 8.102 hectares under the name of herein defendants was not tainted with any deceit but effected legally by virtue of a valid deed of sale executed by defendants’ [sic] spouses EUSTAQUIO in favor of herein defendants.x x x x[T]he absolute deed of sale, [sic] dated 15 April 1971, executed by herein plaintiffs in favor of defendants EUSTAQUIO, speaks for itself. It is a sale of real property and NOT a mortgage.x x x xContrary to the malicious and untruthful claim of the plaintiffs, the legal services of defendant Atty. LEONIDO DELANTE was never solicited by them. Plaintiffs only asked defendant from where they could borrow money, and after knowing that they just simply would [sic] like to borrow money without any concrete investments in mind to repay [sic] back [sic] any loan, defendant Atty. LEONIDO DELANTE drove them out of his office and told them to look for another person to help them;Defendant Atty. LEONIDO DELANTE later learned from MACARIO CAPUL, who is a friend and a town mate, and who is the husband of FRANCISCA ANGALAN CAPUL, that the plaintiffs had negotiated a sale with a certain NAVARRO EUSTAQUIO x x x;In September 1977, a former Filipino client of herein defendant DELANTE, who, and his family [sic] are now permanent residents of New York, was looking for a real property to build his retirement home, [sic] and he approached herein defendant, in which he was referred to defendant EUSTAQUIO [sic]; Upon visiting the property of defendant EUSTAQUIO, he was so impressed of the location of the property and decided to buy the same, hence left the money to herein defendant DELANTE and to buy [sic] said property under defendant’s name, with the understanding to turn over said property to him, as soon as he and his family shall have returned to the country;x x x [S]ince herein defendant is not interested over the said property as his own, he waited for his client from New York to come home and to get his property but after 11 years, his client decided not to come back anymore to the Philippines, and directed herein defendant to register the Deed of Sale over the property to [sic] his name and directed herein defendant to refund his client.14
Complainants filed a complaint15 dated 28 December 2005 with the Court charging respondent with gross violation of the Code of Professional Responsibility. In a Resolution16 dated 3 July 2006, the Court required respondent to comment on the complaint and, in a Resolution17 dated 4 December 2006, the Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.In a Notice dated 14 March 2007, Commissioner Salvador B. Hababag (Commissioner Hababag) directed complainants and respondent to appear before the IBP for a mandatory conference. The parties failed to appear at the mandatory conference. In an Order dated 16 May 2007, Commissioner Hababag directed the parties to submit their position papers.In a motion dated 4 April 2007 and filed with the RTC, respondent and complainants prayed that Civil Case No. 57-2004 be dismissed. Complainants filed with the Court a motion to withdraw the complaint for disbarment dated 4 April 2007 and an affidavit of desistance dated April 2007.In his position paper dated 2 July 2007, respondent stated that (1) Angalan and Capul went to his office in 1971 to seek advice about borrowing money; (2) his client from New York bought the property from the Spouses Eustaquio; and (3) complainants executed a motion to withdraw the complaint for disbarment and an affidavit of desistance.In a Report dated 15 October 2007, Commissioner Hababag found that respondent violated the Code of Professional Responsibility:
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The issue to resolve is whether or not respondent committed grave violation of [the] Code of Professional Responsibility when he bought the property of his client[s] without their knowledge, consent and against their will?Weighing evidence presented by both parties, respondent should be punished for his unprofessional and distasteful acts.x x x xHis vain attempt to salvage his malicious acts was too flimsy to gain belief and acceptance. It is unbelievable that a buyer would entrust his money intended for payment of a property but allowed that said property be registered under the name of another, specifically his lawyer, simply runs counter to ordinary human nature. (Emphasis supplied)Commissioner Hababag recommended that respondent be suspended from the practice of law for six months.In a Resolution dated 22 November 2007, the IBP Board of Governors (Board) adopted and approved the Report with modification. The Board increased respondent’s suspension from six months to one year.Pursuant to Section 12(b), Rule 139-B of the Rules of Court,18 the Board forwarded the case to the Court for final action.The Court sustains the findings of the IBP.Complainants and respondent presented two different sets of facts. According to complainants, they engaged the services of respondent for the purpose of recovering their property from the Spouses Eustaquio. In violation of the trust and confidence they reposed in him, respondent transferred the title over the property to his name. According to respondent, complainants did not engage his services. His client from New York was the one who bought the property from the Spouses Eustaquio.After a careful review of the records, the Court gives credence to complainants’ version of the facts.Respondent’s credibility is highly questionable. In his answer dated 29 December 2004 and filed with the CFI and in his position paper dated 2 July 2007 and filed with the IBP, respondent alleged that Angalan and Capul went to his office in 1971 to seek advice about borrowing money. According to respondent, complainants did not engage his services. In his answer, respondent stated that:It is preposterous for [complainants] to claim that they had [sic] engaged the professional services of herein defendant to file an annulment case since [complainants] never came back apparently ashamed when they were driven out x x x;x x x xContrary to the malicious and untruthful claim of [complainants], the legal services of defendant Atty. LEONIDO DELANTE was never solicited by them. Plaintiffs only asked defendant from where they could borrow money, and after knowing that they just simply would like to borrow money without any concrete investments in mind to repay back [sic] any loan, defendant Atty. LEONIDO DELANTE drove them out of his office and told them to look for another person to help them;Defendant Atty. LEONIDO DELANTE later learned from MACARIO CAPUL x x x that the plaintiffs had negotiated a sale with a certain NAVARRO EUSTAQUIO.19 (Emphasis supplied)The Court is not impressed. Angalan and complainants went to respondent’s office not to seek advice about borrowing money but to engage his services for the purpose of recovering their property. This is obvious. First, after Angalan and complainants went to respondent’s office, respondent filed a complaint with the CFI praying that the Spouses Eustaquio reconvey the property to Angalan and complainants. Second, in the complaint, respondent stated that, "by reason of unwarranted refusal on the part of the defendants to reconvey the property to plaintiffs,the latter have been constrained to engage, and in fact have engaged, the services of counsel." Third, respondent issued a receipt to complainants stating that he "RECEIVED from Mr. MACARIO CAPUL and FRANCISCA RAFAEL CAPUL the sum of ONE THOUSAND TWO HUNDRED PESOS (P1,200.00) representing full payment of professional services in regard to the recovery of Original Certificate of Title No. P-11499 in the name of Angalan (Samal)." Fourth, in respondent’s letter dated 10 January 1979 and addressed to the barrio captain of Umbay, Samal, Davao del Norte, he stated that he was the lawyer of complainants:
This will inform you that the Heirs of Angalan Samal have already redeemed their property through me from Mr. Navarro Eustaquio since September, 1978. In my capacity as counsel of the Heirs of Angalan Samal and owner of the money in redeeming the property, I have authorized Mr. Macario Capol to take over the possession of the property together with the harvesting of the matured coconuts.20
These clearly show that complainants engaged the services of respondent.In his answer, respondent alleged that complainants did not pay him his professional fees (which, according to him, they did not engage). He stated that, "[complainants] had never paid the herein defendant a single centavo for purposes of filing an annulment case against x x x NAVARRO EUSTAQUIO."The Court is not impressed. Complainants fully paid respondent his professional fees. This is obvious. In a receipt dated 18 November 1970, respondent stated that he "RECEIVED from Mr. MACARIO CAPUL and FRANCISCA RAFAEL CAPUL the sum of ONE THOUSAND TWO HUNDRED PESOS (P1,200.00) representing full payment of professional services in regard to the recovery of Original Certificate of Title No. P-11499 in the name of Angalan (Samal)." This clearly shows that complainants paid respondent his professional fees.In his answer and position paper, respondent alleged that his client from New York bought the property from the Spouses Eustaquio:[I]n September 1977, a former Filipino client of herein respondent, who, and his family [sic] are now permanent residents of New York, was looking for a real property to build his retirement home, and he approached herein respondent, in which [sic] he was referred to Navarro Eustaquio; and upon visiting the property of Navarro Eustaquio, he was impressed of [sic] the location of the property and decided to buy the same, hence left the money to herein respondent and to buy [sic] said property under respondent’s name, with the understanding to turn over said property to him, as soon as he and his family shall have returned to the country;x x x [S]ince herein respondent was not interested over the said property as his own, he waited for his client from New York to come home and to get his property but after 11 years, his client decided not to come back anymore to the Philippines, and directed herein respondent to register the Deed of Sale over the property under his name and directed herein respondent to refund his client.21
The Court is not impressed. Complainants repurchased the property from the Spouses Eustaquio. This is obvious. First, complainants and the Spouses Eustaquio entered into an amicable settlement stating that complainants would repurchase the property from the Spouses Eustaquio:1. x x x [T]he plaintiffs have offered to the defendant[s] the sum of P30,000.00 as repurchase price which the defendant[s accept];2. x x x [U]pon the signing hereof, the plaintiffs shall pay the defendant[s] the sum of P15,000.00 and for this purpose hereby authorize the defendants to collect the same from the Clerk of Court which amount had been deposited with this Honorable Court; Likewise, upon signing hereof the Deed of Reconveyance shall be immediately executed and delivered by the defendants to plaintiff[s];3. x x x [W]hile the balance of P15,000.00 has not been paid, the defendant[s] shall continue to possess, and if necessary to gather the produce of the property, however, upon receipt of the defendant[s] of the balance of P15,000.00, said defendants together with [their] agent and/or worker, Alfredo Rabadon shall clear the area and turnover the same within fifteen (15) days from receipt [of] said balance.22 (Emphasis supplied)Second, in his letter to the barrio captain, respondent stated that complainants repurchased the property from the Spouses Eustaquio:This will inform you that the Heirs of Angalan Samal have already redeemed their property through me from Mr. Navarro Eustaquio since September, 1978. In my capacity as counsel of the Heirs of Angalan Samal and owner of the money in redeeming the property, I have authorized Mr. Macario Capol to take over the possession of the property together with the harvesting of the matured coconuts.23 (Emphasis supplied)These clearly show that complainants repurchased the property from the Spouses Eustaquio.Respondent’s story about the client from New York is unbelievable. Respondent did not give any detail or proof to substantiate his story — the name of the alleged client, an affidavit of the alleged client, the old passport of the alleged client showing immigration stamps, or any form of correspondence between him and the alleged
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client. The Court agrees with the observation of Commissioner Hababag that respondent’s "vain attempt to salvage his malicious acts [is] too flimsy to gain belief and acceptance."In his position paper, respondent alleged that complainants executed a motion to withdraw the complaint for disbarment and an affidavit of desistance. This is immaterial. Section 5, Rule 139-B of the Rules of Court states that, "No investigation shall be interrupted or terminated by reason of the desistance, settlement, compromise, restitution, withdrawal of charges, or failure of the complainant to prosecute the same."Respondent violated Canons 16 and 17 of the Code of Professional Responsibility. Canon 16 states that lawyers shall hold in trust all properties of their clients that may come into their possession. Respondent should have held in trust TCT No. T-9926 and returned the property to complainants upon demand.24 Instead of holding in trust the property of complainants, respondent (1) transferred the title of the property to his name, (2) refused to return the property to complainants, and (3) referred to complainants’ charges as malicious and untruthful.Canon 17 states that lawyers shall be mindful of the trust and confidence reposed in them. Respondent should have been mindful of the trust and confidence complainants reposed in him. Complainants allege that they are illiterate and that the Spouses Eustaquio took advantage of them. Complainants engaged the services of respondent in the hope that he would help them recover their property. Instead of protecting the interests of complainants, respondent took advantage of complainants and transferred the title of the property to his name.Considering the depravity of respondent’s offense, the Court finds the recommended penalty too light. Violation of Canons 16 and 17 constitutes gross misconduct.25 Section 27, Rule 138 of the Rules of Court states that a member of the bar may be disbarred or suspended from his office as attorney by the Court for gross misconduct. In Hernandez v. Go,26 the Court disbarred a lawyer for transferring the titles over the properties of his client to his name without the knowledge of his client. In Hernandez, the Court held that:Considering the depravity of respondent’s offense, we find the penalty recommended by the IBP too light. It bears reiterating that a lawyer who takes advantage of his client’s financial plight to acquire the latter’s properties for his own benefit is destructive of the confidence of the public in the fidelity, honesty, and integrity of the legal profession. Thus, for violation of Canon 16 and Canon 17 of the Code of Professional Responsibility, which constitutes 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, that of expulsion from the esteemed brotherhood of lawyers.27
A person who takes the 8.102-hectare property of his illiterate clients and who is incapable of telling the truth is unfit to be a lawyer.WHEREFORE, the Court finds Atty. Leonido C. Delante GUILTY of violating Canons 16 and 17 of the Code of Professional Responsibility. Accordingly, the Court DISBARS him from the practice of law and ORDERS that his name be stricken from the Roll of Attorneys.Let copies of this Decision be furnished the Office of the Bar Confidant, the Integrated Bar of the Philippines, and all courts all over the country. Let a copy of this Decision likewise be attached to the personal records of respondent.SO ORDERED.SECOND DIVISIONA.C. No. 8158 February 24, 2010ATTY. ELMER C. SOLIDON, Complainant, vs.ATTY. RAMIL E. MACALALAD, Respondent.D E C I S I O NBRION, J.:In a verified complaint1 before the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP Commission on Bar Discipline), Atty. Elmer C. Solidon (Atty. Solidon) sought the disbarment of Atty. Ramil E. Macalalad (Atty. Macalalad) for violations of Rule 16.01,2 Rule 18.03,3 and Rule 18.044 of the Code of Professional Responsibility involving negligence in handling a case.The Facts
Atty. Macalalad is the Chief of the Legal Division of the Department of Environment and Natural Resources (DENR), Regional Office 8, Tacloban City. Although he is in public service, the DENR Secretary has given him the authority to engage in the practice of law.While on official visit to Eastern Samar in October 2005, Atty. Macalalad was introduced to Atty. Solidon by a mutual acquaintance, Flordeliz Cabo-Borata (Ms. Cabo-Borata). Atty. Solidon asked Atty. Macalalad to handle the judicial titling of a parcel of land located in Borongan, Eastern Samar and owned by Atty. Solidon’s relatives. For a consideration of Eighty Thousand Pesos (P80,000.00), Atty. Macalalad accepted the task to be completed within a period of eight (8) months. Atty. Macalalad received Fifty Thousand Pesos (P50,000.00) as initial payment; the remaining balance of Thirty Thousand Pesos (P30,000.00) was to be paid when Atty. Solidon received the certificate of title to the property.Atty. Macalalad has not filed any petition for registration over the property sought to be titled up to the present time.In the Complaint, Position Papers5 and documentary evidence submitted, Atty. Solidon claimed that he tried to contact Atty. Macalalad to follow-up on the status of the case six (6) months after he paid the initial legal fees. He did this through phone calls and text messages to their known acquaintances and relatives, and, finally, through a letter sent by courier to Atty. Macalalad. However, he did not receive any communication from Atty. Macalalad.In the Answer,6 Position Paper,7 and affidavits of witnesses, Atty. Macalalad posited that the delay in the filing of the petition for the titling of the property was caused by his clients’ failure to communicate with him. He also explained that he had no intention of reneging on his obligation, as he had already prepared the draft of the petition. He failed to file the petition simply because he still lacked the needed documentary evidence that his clients should have furnished him. Lastly, Atty. Macalalad denied that Atty. Solidon tried to communicate with him.The Findings of the IBPIn his Report and Recommendation dated June 25, 2008, Investigating Commissioner Randall C. Tabayoyong made the following finding of negligence against Atty. Macalalad:…complainant submitted in his position paper the affidavit of Flordeliz Cabo-Borata, the mutual acquaintance of both complainant and respondent. In the said affidavit, Mrs. Cabo-Borata described how she repeatedly followed-up the matter with respondent and how respondent turned a deaf ear towards the same. There is nothing on record which would prompt this Office to view the allegations therein with caution. In fact, considering that the allegations corroborate the undisputed facts of the instant case...As respondent has failed to duly present any reasonable excuse for the non-filing of the application despite the lapse of about a year from the time his services were engaged, it is plain that his negligence in filing the application remains uncontroverted. And such negligence is contrary to the mandate prescribed in Rule 18.03, Canon 18 of the Code of Professional Responsibility, which enjoins a lawyer not to neglect a legal matter entrusted to him. In fact, Rule 18.03 even provides that his negligence in connection therewith shall render him liable.Acting on this recommendation, the Board of Governors of the IBP Commission on Bar Discipline passed Resolution No. XVIII-2008-336 dated July 17, 2008, holding that:RESOLVED TO ADOPT and APPROVE, as it is hereby unanimously ADOPTED and APPROVED, with modification, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution … and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering Respondent’s violation of Rule 18.03 of the Code of Professional Responsibility, Atty. Ramil E. Macalalad is hereby SUSPENDED from the practice of law for three (3) months and Ordered to Return the amount of Fifty Thousand Pesos (P50,000) with 12% interest per annum to complainant …The case is now before this Court for our final action pursuant to Section 12(b), Rule 139-B of the Rules of Court, considering that the IBP Commission on Bar Discipline imposed the penalty of suspension on Atty. Macalalad.The Court’s RulingWe agree with the IBP’s factual findings and legal conclusions.
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In administrative cases against lawyers, the quantum of proof required is preponderance of evidence which the complainant has the burden to discharge.8 We fully considered the evidence presented and we are fully satisfied that the complainant’s evidence, as outlined above, fully satisfies the required quantum of proof in proving Atty. Macalalad’s negligence.Rule 18.03, Canon 18 of the Code of Professional Responsibility provides for the rule on negligence and states:Rule 18.03 – A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable.This Court has consistently held, in construing this Rule, that the mere failure of the lawyer to perform the obligations due to the client is considered per se a violation.Thus, in Villafuerte v. Cortez,9 we held that a lawyer is negligent if he failed to do anything to protect his client’s interest after receiving his acceptance fee. In In Re: Atty. Briones,10 we ruled that the failure of the counsel to submit the required brief within the reglementary period (to the prejudice of his client who languished in jail for more than a year) is an offense that warrants disciplinary action. In Garcia v. Atty. Manuel, we penalized a lawyer for failing to inform the client of the status of the case, among other matters.11
Subsequently, in Reyes v. Vitan,12 we reiterated that the act of receiving money as acceptance fee for legal services in handling the complainant’s case and, subsequently, in failing to render the services, is a clear violation of Canon 18 of the Code of Professional Responsibility. We made the same conclusion in Canoy v. Ortiz13 where we emphatically stated that the lawyer’s failure to file the position paper was per se a violation of Rule 18.03 of the Code of Professional Responsibility.The circumstance that the client was also at fault does not exonerate a lawyer from liability for his negligence in handling a case. In Canoy, we accordingly declared that the lawyer cannot shift the blame to his client for failing to follow up on his case because it was the lawyer’s duty to inform his client of the status of the case.14 Our rulings inMacarilay v. Seriña,15 in Heirs of Ballesteros v. Apiag,16 and in Villaflores v. Limos17 were of the same tenor. InVillaflores, we opined that even if the client has been equally at fault for the lack of communication, the main responsibility remains with the lawyer to inquire and know the best means to acquire the required information. We held that as between the client and his lawyer, the latter has more control in handling the case.All these rulings drive home the fiduciary nature of a lawyer’s duty to his client once an engagement for legal services is accepted. A lawyer so engaged to represent a client bears the responsibility of protecting the latter’s interest with utmost diligence.18 The lawyer bears the duty to serve his client with competence and diligence, and to exert his best efforts to protect, within the bounds of the law, the interest of his or her client.19 Accordingly, competence, not only in the knowledge of law, but also in the management of the cases by giving these cases appropriate attention and due preparation, is expected from a lawyer.201avvphi1The records in this case tell us that Atty. Macalalad failed to act as he committed when he failed to file the required petition. He cannot now shift the blame to his clients since it was his duty as a lawyer to communicate with them. At any rate, we reject Atty. Macalalad’s defense that it was his clients who failed to contact him. Although no previous communication transpired between Atty. Macalalad and his clients, the records nevertheless show that Atty. Solidon, who contracted Atty. Macalalad’s services in behalf of his relatives, tried his best to reach him prior to the filing of the present disbarment case. Atty. Solidon even enlisted the aid of Ms. Cabo-Borata to follow-up on the status of the registration application with Atty. Macalalad.As narrated by Ms. Cabo-Borata in her affidavit,21 she succeeded several times in getting in touch with Atty. Macalalad and on those occasions asked him about the progress of the case. To use Ms. Cabo-Borata’s own words, she received "no clear-cut answers from him"; he just informed her that everything was "on process." We give credence to these narrations considering Atty. Macalalad’s failure to contradict them or deny their veracity, in marked contrast with his vigorous denial of Atty. Solidon’s allegations.We consider, too, that other motivating factors – specifically, the monetary consideration and the fixed period of performance – should have made it more imperative for Atty. Macalalad to promptly take action and initiate communication with his clients. He had been given initial payment and should have at least undertaken initial delivery of his part of the engagement.
We further find that Atty. Macalalad’s conduct refutes his claim of willingness to perform his obligations. If Atty. Macalalad truly wanted to file the petition, he could have acquired the necessary information from Atty. Solidon to enable him to file the petition even pending the IBP Commission on Bar Discipline investigation. As matters now stand, he did not take any action to initiate communication. These omissions unequivocally point to Atty. Macalalad’s lack of due care that now warrants disciplinary action.In addition to the above finding of negligence, we also find Atty. Macalalad guilty of violating Rule 16.01 of the Code of Professional Responsibility which requires a lawyer to account for all the money received from the client. In this case, Atty. Macalalad did not immediately account for and promptly return the money he received from Atty. Solidon even after he failed to render any legal service within the contracted time of the engagement.22
The PenaltyBased on these considerations, we modify the IBP Commission on Bar Discipline’s recommended penalty by increasing the period of Atty. Macalalad’s suspension from the practice of law from three (3) months, to six (6) months.23 In this regard, we follow the Court’s lead in Pariñas v. Paguinto24 where we imposed on the respondent lawyer suspension of six (6) months from the practice of law for violations of Rule 16.01 and Rule 18.03 of the Code of Professional Responsibility.WHEREFORE, premises considered, we hereby AFFIRM WITH MODIFICATION Resolution No. XVIII-2008-336 dated July 17, 2008 of the Board of Governors of the IBP Commission on Bar Discipline. We impose on Atty. Ramil E. Macalalad the penalty of SIX (6) MONTHS SUSPENSION from the practice of law for violations of Rule 16.03 and Rule 18.03 of the Code of Professional Responsibility, effective upon finality of this Decision. Atty. Macalalad is STERNLY WARNED that a repetition of the same or similar acts will be dealt with more severely.Atty. Macalalad is also ORDERED to RETURN to Atty. Elmer C. Solidon the amount of Fifty Thousand Pesos (P50,000.00) with interest of twelve percent (12%) per annum from the date of promulgation of this Decision until the full amount is returned.Let copies of this Decision be furnished the Office of the Bar Confidant and noted in Atty. Macalalad’s record as a member of the Bar.SO ORDERED
A.C. No. 7298 June 25, 2007[Formerly CBD Case No. 05-1565]FERNANDO MARTIN O. PENA, complainant, vs.ATTY. LOLITO G. APARICIO, respondent.R E S O L U T I O NTINGA, J.:In this administrative complaint, a lawyer is charged with violation of Rule 19.01 of Canon 19 of the Code of Professional Responsibility for writing a demand letter the contents of which threatened complainant with the filing of criminal cases for tax evasion and falsification of documents.Atty. Lolito G. Aparicio (respondent) appeared as legal counsel for Grace C. Hufana in an illegal dismissal case before the National Labor Relations Commission (NLRC). Sometime in August 2005, complainant Fernando Martin O. Pena, as President of MOF Company, Inc. (Subic), received a notice from the Conciliation and Mediation Center of the NLRC for a mediation/conciliation conference. In the conference, respondent, in behalf of his client, submitted a claim for separation pay arising from her alleged illegal dismissal. Complainant rejected the claim as being baseless. Complainant thereafter sent notices to Hufana for the latter to explain her absences and to return to work. In reply to this return to work notice, respondent wrote a letter to complainant reiterating his client's claim for separation pay. The letter also contained the following threat to the company:BUT if these are not paid on August 10, 2005, we will be constrained to file and claim bigger amounts including moral damages to the tune of millions under established precedence of cases and laws. In addition to other multiple charges like:
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1. Tax evasion by the millions of pesos of income not reported to the government.2. Criminal Charges for Tax Evasion3. Criminal Charges for Falsification of Documents4. Cancellation of business license to operate due to violations of laws.These are reserved for future actions in case of failure to pay the above amounts as settlements in the National Labor Relations Commission (NLRC).1
Believing that the contents of the letter deviated from accepted ethical standards, complainant filed an administrative complaint2 with the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP). Respondent filed an Answer with Impleader (Motion to Dismiss and Counterclaims)3 claiming that Atty. Emmanuel A. Jocson, complainant's legal counsel, also played an important part in imputing the malicious, defamatory, and fabricated charges against him. Respondent also pointed out that the complaint had no certification against forum shopping and was motivated only to confuse the issues then pending before the Labor Arbiter. By way of counterclaim, respondent asked for damages and for the disbarment of Atty. Jocson. Respondent also asked the IBP to endorse the prosecution of Atty. Jocson for Usurpation of Public Functions4 and for violation of the Notarial Law.5
A mandatory conference was held on 6 December 2005 but respondent failed to appear.6 Both parties were thereafter required to submit their position papers.The Report and Recommendation7 of Investigating Commissioner Milagros V. San Juan found that complainant, failed to file his position paper and to comply with Administrative Circular No. 04-94 requiring a certificate against forum shopping and, accordingly, recommended the dismissal of the complaint against respondent. On 26 May 2006, the IBP Board of Governors adopted and approved the Report and Recommendation of the Investigating Commissioner.8 On 10 July 2006, the IBP Commission on Bar Discipline transmitted to the Supreme Court the notice of said Resolution and the records of the case.9 Thereafter, on 18 August 2006, respondent filed with the IBP a Motion for Reconsideration (for Modification of Decision)10 reiterating his claim of damages against complainant in the amount of four hundred million pesos (P400,000,000.00), or its equivalent in dollars, for filing the "false, malicious, defamers [sic], fraudulent, illegal fabricators [sic], malevolent[,] oppressive, evasive filing [of] a groundless and false suit."11
Complainant thereafter filed this Petition for Review (of the Resolution of the IBP Commission on Bar Discipline)12alleging that he personally submitted and filed with the IBP his position paper, after serving a copy thereof on respondent by registered mail. He further alleges that he was deprived of his right to due process when the IBP dismissed his complaint without considering his position paper and without ruling on the merits thereof.Complainant accordingly prays for the reversal and setting aside of the 26 May 2006 Resolution13 of the IBP Board of Governors and the remand of the case to the IBP Commission on Bar Discipline for proper adjudication and disposition on the merits.Based on the records, there is truth to complainant's assertion that he filed his position paper on 21 December 2005, after serving a copy of the same to respondent. The IBP stamp on the front page of said document shows that it was received by the IBP on 21 December 2005. The registry receipt attached to the same document also shows that it was sent by registered mail to respondent on the same date. 14
Complainant, however, omitted to offer any explanation in his petition before this Court for his failure to attach a certification against forum shopping in his complaint against respondent.The requirement of a certification against forum shopping was originally required by Circular No. 28-91, dated 8 February 1994, issued by this Court for every petition filed with the Court or the Court of Appeals. Administrative Circular No. 04-94, made effective on 1 April 1994, expanded the certification requirement to include cases filed in courts and quasi-judicial agencies below this Court and the Court of Appeals. Ultimately, the Court adopted paragraphs (1) and (2) of Administrative Circular No. 04-94 to become Section 5, Rule 7 of the1997 Rules of Civil Procedure.15 Said rule states that a violation thereof would constitute contempt of court and be cause for the summary dismissal of both petitions without prejudice to the taking of appropriate action against the counsel of the party concerned.16
The Investigating Commissioner and the IBP Board of Governors took against complainant his failure to attach the certification against forum shopping to his complaint and consequently dismissed his complaint. This Court, however, disagrees and, accordingly, grants the petition. However, a remand of the case to the IBP would unduly prolong its adjudication.The Court's determination is anchored on the sui generis nature of disbarment proceedings, the reasons for the certification against forum shopping requirement, complainant's subsequent compliance with the requirement, and the merit of complainant's complaint against respondent.The Court, in the case of In re Almacen,17 dwelt on the sui generis character of disciplinary proceedings against lawyers, thus:Disciplinary proceedings against lawyers are sui generis. Neither purely civil nor purely criminal, they do not involve a trial of an action or a suit, but is rather an investigation by the Court into the conduct of one of its officers. Not being intended to inflict punishment, it is in no sense a criminal prosecution. Accordingly, there is neither a plaintiff nor a prosecutor therein. It may be initiated by the Court motu proprio. Public interest is its primary objective, and the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges as such. Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to account for his actuations as an officer of the Court with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice by purging the profession of members who by their misconduct have proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney. In such posture, there can thus be no occasion to speak of a complainant or a prosecutor.18 [Emphasis supplied]In view of the nature of disbarment proceedings, the certification against forum shopping to be attached to the complaint, if one is required at all in such proceedings, must refer to another administrative case for disciplinary proceedings against the same respondent, because such other proceedings or "action" is one that necessarily involves "the same issues" as the one posed in the disbarment complaint to which the certification is supposedly to be attached.Further, the rationale for the requirement of a certification against forum shopping is to apprise the Court of the pendency of another action or claim involving the same issues in another court, tribunal or quasi-judicial agency, and thereby precisely avoid the forum shopping situation. Filing multiple petitions or complaints constitutes abuse of court processes,19 which tends to degrade the administration of justice, wreaks havoc upon orderly judicial procedure, and adds to the congestion of the heavily burdened dockets of the courts.20 Furthermore, the rule proscribing forum shopping seeks to promote candor and transparency among lawyers and their clients in the pursuit of their cases before the courts to promote the orderly administration of justice, prevent undue inconvenience upon the other party, and save the precious time of the courts. It also aims to prevent the embarrassing situation of two or more courts or agencies rendering conflicting resolutions or decisions upon the same issue.21
It is in this light that we take a further look at the necessity of attaching a certification against forum shopping to a disbarment complaint. It would seem that the scenario sought to be avoided, i.e., the filing of multiple suits and the possibility of conflicting decisions, rarely happens in disbarment complaints considering that said proceedings are either "taken by the Supreme Court motu proprio, or by the Integrated Bar of the Philippines (IBP) upon the verified complaint of any person."22 Thus, if the complainant in a disbarment case fails to attach a certification against forum shopping, the pendency of another disciplinary action against the same respondent may still be ascertained with ease. We have previously held that the rule requiring a certification of forum shopping to accompany every initiatory pleading, "should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective or the goal of all rules of procedure—which is to achieve substantial justice as expeditiously as possible."23
At any rate, complainant's subsequent compliance with the requirement cured the supposed defect in the original complaint. The records show that complainant submitted the required certification against forum shopping on 6 December 2006 when he filed his Comment/Opposition to respondent's Motion to Dismiss the present petition.
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Finally, the intrinsic merit of complainant's case against respondent justifies the grant of the present petition. Respondent does not deny authorship of the threatening letter to complainant, even spiritedly contesting the charge that the letter is unethical.Canon 19 of the Code of Professional Responsibility states that "a lawyer shall represent his client with zeal within the bounds of the law," reminding legal practitioners that a lawyer's duty is not to his client but to the administration of justice; to that end, his client's success is wholly subordinate; and his conduct ought to and must always be scrupulously observant of law and ethics.24 In particular, Rule 19.01 commands that a "lawyer shall employ only fair and honest means to attain the lawful objectives of his client and shall not present, participate in presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any case or proceeding." Under this Rule, a lawyer should not file or threaten to file any unfounded or baseless criminal case or cases against the adversaries of his client designed to secure a leverage to compel the adversaries to yield or withdraw their own cases against the lawyer's client.25
In the case at bar, respondent did exactly what Canon 19 and its Rule proscribe. Through his letter, he threatened complainant that should the latter fail to pay the amounts they propose as settlement, he would file and claim bigger amounts including moral damages, as well as multiple charges such as tax evasion, falsification of documents, and cancellation of business license to operate due to violations of laws. The threats are not only unethical for violating Canon 19, but they also amount to blackmail.Blackmail is "the extortion of money from a person by threats of accusation or exposure or opposition in the public prints,…obtaining of value from a person as a condition of refraining from making an accusation against him, or disclosing some secret calculated to operate to his prejudice." In common parlance and in general acceptation, it is equivalent to and synonymous with extortion, the exaction of money either for the performance of a duty, the prevention of an injury, or the exercise of an influence. Not infrequently, it is extorted by threats, or by operating on the fears or the credulity, or by promises to conceal or offers to expose the weaknesses, the follies, or the crime of the victim.26
In Sps. Boyboy v. Atty. Yabut, Jr.,27 we held that "[a]n accusation for blackmail and extortion is a very serious one which, if properly substantiated, would entail not only respondent's disbarment from the practice of law, but also a possible criminal prosecution."28 While the respondent in Boyboy was exonerated for lack of evidence, the same may not be said of respondent in the present case for he admits to writing the offensive letter.In fact, respondent does not find anything wrong with what he wrote, dismissing the same as merely an act of pointing out massive violations of the law by the other party, and, with boldness, asserting that "a lawyer is under obligation to tell the truth, to report to the government commission of offenses punishable by the State."29 He further asserts that the writing of demand letters is a standard practice and tradition and that our laws allow and encourage the settlement of disputes.Respondent's assertions, however, are misleading, for it is quite obvious that respondent's threat to file the cases against complainant was designed to secure some leverage to compel the latter to give in to his client's demands. It was not respondent's intention to point out complainant's violations of the law as he so gallantly claims. Far from it, the letter even contains an implied promise to "keep silent" about the said violations if payment of the claim is made on the date indicated.Indeed, the writing of demand letters is a standard practice and tradition in this jurisdiction. It is usually done by a lawyer pursuant to the principal-agent relationship that he has with his client, the principal. Thus, in the performance of his role as agent, the lawyer may be tasked to enforce his client's claim and to take all the steps necessary to collect it, such as writing a letter of demand requiring payment within a specified period. However, the letter in this case contains more than just a simple demand to pay. It even contains a threat to file retaliatory charges against complainant which have nothing to do with his client's claim for separation pay. The letter was obviously designed to secure leverage to compel complainant to yield to their claims. Indeed, letters of this nature are definitely proscribed by the Code of Professional Responsibility.Respondent cannot claim the sanctuary provided by the privileged communication rule under which a private communication executed in the performance of a legal duty is not actionable. The privileged nature of the letter
was removed when respondent used it to blackmail complainant and extort from the latter compliance with the demands of his client.However, while the writing of the letter went beyond ethical standards, we hold that disbarment is too severe a penalty to be imposed on respondent, considering that he wrote the same out of his overzealousness to protect his client's interests. Accordingly, the more appropriate penalty is reprimand.WHEREFORE, premises considered, the petition is granted. The 26 May 2006 Resolution of the IBP Board of Governors is hereby REVERSED and SET ASIDE. Respondent Atty. Lolito G. Aparicio is hereby found liable for violation of Rule 19.01 of Canon 19 of the Code of Professional Responsibility, and is accordingly meted out the penalty of REPRIMAND, with the STERN WARNING that a repetition of the same or similar act will be dealt with more severely.SO ORDEREDADM. CASE No. 4809SPOUSES WILLIAM ADECER and TERESITA P. ADECER, Complainants, vs.ATTY. EMMANUEL AKUT, Respondent.D E C I S I O NTINGA, J.:Before the Court is a petition for disbarment filed by Spouses William and Teresita Adecer (complainants) against Attorney Emmanuel A. Akut (respondent).The instant petition is an offshoot of Criminal Case No. 72790 entitled "People of the Philippines v. William Adecer and Teresita Adecer" in which complainants were charged with committing a crime punishable under Article 318 of the Revised Penal Code (Other Deceits), before the Municipal Trial Court in Cities, Cagayan de Oro, Branch No. 5 (MTCC). Respondent was their legal counsel in the criminal case.On 25 March 1997, respondent received a copy of the MTCC’s Decision1 dated 12 March 1997 convicting complainants of Other Deceits and sentencing them to the penalty of arresto mayor2 and a fine of not less thanP30,000.00.3 Complainants were also ordered to pay civil liability in the form of damages and attorneys fees totaling P66,000.00 to the private respondents in the criminal case.4 On 26 March 1997, the Decision was promulgated in the absence of the complainants, who were accorded due notice. Complainants received a copy of the Decision via registered mail on 4 April 1997. Respondent received an additional copy of the Decision on even date.Respondent had fifteen (15) days from 25 March 1997, or until 9 April 1997, to file either an appeal5 or a petition for probation6 in behalf of the complainants. However, it was only on 16 May 1997 – over a month after the Decision had become final and executory– that respondent filed a Petition for Probation.The MTCC issued a Writ of Execution On 19 May 1997. The next day, a warrant of arrest was served on complainants7 and they were incarcerated.8
On 28 May 1997, respondent filed a Memorandum in Support of the Petition for Probation stating, "[i]mmediately upon her receipt of a copy of the decision, accused Teresita Adecer contacted [her] lawyer but [her] lawyer was out of town during that time and so, while waiting for her lawyer to come home, she raised the required amount necessary to pay the civil indemnity awarded in the decision."9 Respondent explained that complainant Teresita Adecer raised the money in the belief that an application for probation would not be granted unless all monetary awards are paid in full.10 Respondent recounted that it was only on 16 May 1997, when complainant Teresita approached him and handed to him the money for the settlement of the civil liability, that he informed her that the application for probation should have been filed within the period for appeal.The Petition for Probation was denied through a Resolution dated 7 June 1997. The MTCC held that the law does not permit the grant of probation after the lapse of the period for filing an appeal.11 With regard to respondent’s allegation that he was out of town during the period for filing an appeal, the MTCC examined the calendars of various courts and ascertained that respondent had scheduled and attended hearings before several courts in Cagayan de Oro during said period. This prompted the MTCC to comment, "[t]he court does not know if defense counsel ‘suffered’ a sudden lack of vitamins to make him forget his duties towards his clients."12 It appears that
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complainants filed a Motion for Reconsideration with an Atty. Rogelio Zosa Bagabuyo as pro bono counsel for the complainants.13 The motion was denied through a Resolution dated 30 June 1997.The records also reflect that complainants filed a pleading entitled Urgent Omnibus Motions to Recall Writ of Execution and for a Second Motion for Reconsideration with Leave of Court dated 21 June 1997.14 In answer to "insinuations" in said pleading, respondent, as former counsel of the complainants, filed a Manifestation dated 30 June 1997. He claimed therein that the complainants only had themselves to blame for failing to file a timely petition for probation. Allegedly, the complainants failed to comply with an agreement with respondent that they would immediately go to respondent’s office to discuss the steps to be taken should they receive an adverse decision. Respondent claimed that during the time complainants desisted from approaching him, he could not make a choice in behalf of the complainants between the remedy of appeal and the benefits of probation. He recounted that complainants came to his office only on 9 May 1997, a month after the decision had become final and executory, with money to pay for the civil liability. He asked them to return the next day, but they returned only on 16 May 1997 after he "sent somebody to fetch them on several occasion[s]."15
On 29 July 1997, while serving their sentence at the Lumbia Detention and Rehabilitation Center, complainants filed the instant administrative case praying that respondent be disbarred and ordered to reimburse complainants of expenses, with interest and damages.161avvphil.netIn his Comment dated 22 February 1998, respondent reiterated his account in the Memorandum in Support of the Petition for Probation dated 28 May 1997 on why a timely petition for probation was not filed. However, his explanation evolved somewhat since the last time. This time, he stated that complainants deliberately failed to meet with him seasonably for the signing of the verification of the Petition for Probation.17 On the MTCC’s finding that respondent appeared before Cagayan de Oro courts during the period to file an appeal, he retorted that he moved for the postponement of most of these hearings and attended only the more important ones.18 He explained that he was out of his office most of the time because starting February 1997, he and his wife were always out of town looking for faith healers to cure the malignant brain tumor of his wife, who succumbed to the cancer on 1 August 1997.19 Allegedly, after attending the "important" hearings, he immediately went out of town seeking faith healers.20
The instant case was referred by this Court to the Integrated Bar of the Philippines (IBP) for investigation, report, and recommendation.21 On 29 October 2003, Commissioner Wilfredo E.J.E. Reyes filed a Manifestation before this Court reporting that the records of the case were lost due to a carnapping incident.On 7 November 2003, the records of the case were reconstituted. Stipulations were made and the parties agreed that the case would be deemed submitted for decision upon their filing of their respective Supplemental Position Papers.22 Furthermore, despite complainants’ several allusions to deceit on the part of respondent, the parties agreed on a single issue for resolution, i.e., whether respondent is administratively liable for a violating the principles of legal ethics and the Code of Professional Responsibility in filing the Petition for Probation beyond the reglementary period.23
In his Report and Recommendation dated 15 July 2005, Commissioner Reyes found that respondent failed to exercise the proper diligence in dealing with the case of his clients and recommended that respondent be suspended from the practice of law for one (1) month and admonished henceforth to be more careful in the performance of his duties to his clients. The IBP Board of Governors resolved to adopt and approve the findings of Commissioner Reyes with the modification that respondent instead be suspended for six (6) months. The case is now on review by this Court pursuant to Section 12 (b), Rule 139-B of the Revised Rules of Court.24
We affirm the findings of the Investigating Commissioner and adopt the recommendation of the Board of Governors.The Code of Professional Responsibility mandates that a lawyer shall serve his client with competence and diligence.25 He shall not handle any legal matter without adequate preparation.26 Nor shall he neglect a legal matter entrusted to him; his negligence in connection therewith shall render him liable.27
Respondent is bound by the representations he made in his Memorandum in Support of the Petition for Probation, i.e., that a timely petition for probation was not filed due to the fact that he was out of town and that complainants were laboring under the misapprehension that the civil liability must be paid in full before
probation could be availed of. Either of his two "explanations" is enough ground to render him liable for negligence under the Code of Professional Conduct. First, despite his receipt of a copy of the Decision and the consequent running of the fifteen (15)-day period to file a petition for probation, respondent went out of town without contacting complainants to give them proper legal advice. Furthermore, his admission that complainants were [1] under the impression that they first had to pay off their civil liabilities prior to filing a petition for probation and [2] unaware that they had only fifteen (15) days from their counsel’s receipt of a copy of the decision to file their petition, proves that he failed to give complainants timely legal advise.We consider first the implications of respondent’s allegation that he was out of town as his justification to the MTCC for failing to file a timely petition.At the outset, it must be remembered that respondent was given a copy of the Decision while he was in town. Surely, he could have addressed his clients’ need during that time. At the very least, he should have made room in his schedule to confer with complainants on what course of action to take in furtherance of their cause and to prepare the necessary legal moves toward such end.Furthermore, respondent was not away for the entirety of the crucial period and could have attended to his clients’ needs during the instances he was in Cagayan de Oro. And even if respondent had left town during the entire fifteen (15)-day period, in this age of cellular phones, long distance telephone accessibility, and even overnight mail delivery, it is highly unlikely that respondent would not be able to attend to his clients’ needs were he so inclined. He could at least have found a way to speak to his clients to inform them regarding the short window within which to file their petition. He could even have prepared a petition and mailed the same to his clients in order that they could sign it and themselves file it in court; or as intimated by the MTCC, he could have filed a motion for extension of time to file a petition for probation.28
There are many ways to provide proper representation for his clients and many things which respondent could have done that would give this Court the impression that he had the least bit of concern for his clients’ cause. But nothing of the sort was presented by respondent. Since he is primarily responsible for filing the vital pleading that would have made possible for his clients to avail of probation, we find that respondent’s omission is a culpable act of negligence for which he must be held liable.Furthermore, when the MTCC decided to take judicial notice of his scheduled hearings within Cagayan de Oro to expose his lie, respondent "explained" that he was in town to attend some of the more "important hearings" but was out of town most of the time. Aside from the fact that respondent had attempted to deceive the court by initially stating without qualification that he was out of town, he later on uttered words which reveal his notion that some of his cases were more important, and therefore, given more immediate attention than others. Every case a lawyer accepts deserves his full attention, skill and competence, regardless of his impression that one case or hearing is more important than the other.29
Respondent has attached a death certificate showing that his wife died from cardiac arrest close to the period in question. We commiserate with respondent for the loss of his wife, and appreciate fully that during the period of a man’s existence when the sense of mortality and loss is most closely felt more then ever, it would appear that no responsibility is more important than tending to loved ones. However, such is the lawyer’s charge that no personal consideration should stand in the way of performing a legal duty.30 In these situations, it is only fair that a lawyer should lighten his case load lest he prejudice his clients’ cases.We have held that the failure of an attorney to file a timely motion for reconsideration or an appeal renders him liable for negligence under the Code of Professional Responsibility.31 In the instant case, the negligence exhibited by the respondent is made more grievous by the fact that the Decision to be acted upon is one that subjects his clients to incarceration. The liberty of one’s clients is not to be taken lightly, whether the sentence is for destierroor reclusion perpetua. Litigants entrust their properties, liberties, and even lives, in the hands of their lawyers, who must protect these values with utmost zeal and vigilance.What compounds respondent’s negligence is his indifference to complainants’ plight. He abruptly dismissed his failure to communicate with complainants by stating that, "even if [complainants’] house is near respondent’s office, yet respondent does not know [where] their house [is] as he ha[s] never gone to said house. It has never been the practice of respondent to visit his clients in their home. It must be the client who must go to him."32
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Respondent’s choice to be oblivious to his clients’ place of residence is his prerogative. This, however, neither excuses nor explains why he was unable to contact his clients by telephone or cellular phone to properly advise them of their legal options. Furthermore, in adopting this style of dealing with clients, respondent takes the obvious risk of being incapable of contacting his clients during crucial periods. He should, thus, be prepared to be held in the event that his manner of dealing with clients results in the latter’s being deprived of remedies to which they would otherwise be entitled, for it is the duty of an attorney to advise his client promptly whenever he has any information which is important that the client receive.33
To cover his own inattention, respondent even blamed his clients for their ignorance by stating that they were under the wrong impression that the civil liability should be paid in full before they could ask for probation. The laymen’s lack of knowledge of substantive and procedural law is the exact reason why they hire the services of counsel. It was counsel’s responsibility to look after the welfare of his clients by communicating with them to determine whether they would take the avenue of an appeal or a petition for probation and to thereafter prepare and file the relevant pleading.We note the IBP Investigating Commissioner’s observation that complainants themselves did not show much interest in their own case. Indeed, complainants did not attend hearings of their case; the decision was promulgated in their absence; during trial, complainants were thrice ordered arrested for their failure to attend hearings; thrice, too, respondent had to file a motion for reconsideration of the orders of arrest. It is true that the client must, with regard to his case, exercise that standard of case which an ordinary prudent man bestows upon his important business.34 However, complainants’ lackadaisical attitude is relevant only with regard to the binding effect upon them of the lapse of the fifteen (15)-day period and their loss of the fight to file the petition for probation. The instant administrative proceeding concerns respondent’s omission, not those of his clients.The lawyer should serve his client in a conscientious, diligent and efficient manner and he should provide a quality of services at least equal to that which lawyers generally would expect of a competent lawyer in the like situation.35By agreeing to be his client’s counsel, he represents that he will exercise ordinary diligence or that reasonable degree of care and skill having reference to the character of the business he undertakes to do, to protect the client’s interests and take all steps or do all acts necessary therefor, and his client may reasonably expect him to discharge his obligations diligently.36 Respondent has failed to measure up to his oath.WHEREFORE, the petition is GRANTED. Atty. Emmanuel A. Akut is hereby SUSPENDED from the practice of law for six (6) months and ADMONISHED henceforth to be more circumspect in the performance of his duties to his clients, with the caveat that commission of the same or similar offense will be dealt with more severely.SO ORDERED.THIRD DIVISIONA.C. No. 5655 April 22, 2005VALERIANA U. DALISAY, Complainant, vs.ATTY. MELANIO MAURICIO, JR., Respondent.D E C I S I O NSANDOVAL-GUTIERREZ, J.:The instant case stemmed from a verified letter-complaint dated February 21, 2002 filed with this Court by Valeriana U. Dalisay against Atty. Melanio "Batas" Mauricio, Jr. for demanding and receiving exorbitant attorney’s fees but did not take any action on her case.In her complaint, Dalisay alleged that she was impressed by the pro-poor and pro-justice advocacy of respondent, a media personality. So she engaged his services as her counsel in Civil Case No. 00-44, wherein she is the defendant, pending before the Municipal Trial Court of Binangonan, Rizal. After consulting with respondent, she handed to him all the pertinent documents. In turn, respondent demanded P25,000.00 as acceptance fee which she paid. Then respondent asked her to pay P8,000.00 as filing fee. She paid the amount although she knew that Civil Case No. 00-44 was already filed with the court.
After a month, complainant approached respondent to follow–up her case. Respondent demanded additional acceptance fee, or a total of P90,000.00, with the explanation that he can give a discount should she pay in cash. Respondent also asked her to pay him P3,000.00 as appearance fee.Complainant raised an additional amount and paid respondent the total sum of P48,000.00. Adding to this amount P8,000.00 filing fee, her total payment was P56,000.00.Complainant further alleged that notwithstanding her payments, respondent never rendered any legal service for her in Civil Case No. 00-044. As a result, she terminated their attorney-client relationship and demanded the return of her money and documents. However, he refused to do so.In his comment, respondent denied complainant’s charge. He claimed that Atty. Oliver Lozano referred her to him to defend her in Civil Case No. 00-044. He explained to her that she is not covered by the free legal services being rendered by his office. Thus, she would be treated as a regular client. Accordingly, his acceptance fee would be One Hundred Thousand (P100,000.00) Pesos. In addition, she would be charged for any pleading and paper filed with the court, plus an appearance fee of P3,000.00. A few days later, Atty. Lozano called respondent and asked him to reduce his acceptance fee. He then agreed and asked only P25,000.00 for which complainant was very grateful.Respondent denied demanding P8,000.00 as filing fee in Civil Case No. 00-044. He clarified that such fee was intended for another case he would file for complainant, aside from Civil Case No. 00-044.Respondent also alleged that he asked complainant to bring her son-in-law to his office for a conference and to submit to him the necessary documents to enable him to prepare the filing of the complaints in order to protect her rights over the subject property. But complainant did not heed his advice. Instead, she returned to his office and told him that she was no longer interested in retaining his services. She then demanded a refund of the amounts she paid.According to respondent, he rendered legal services to complainant by way of legal advice and opinions on all her problems and those of her family. Consequently, he had every right to collect attorney’s fees from her. He prayed that the instant complaint be dismissed.On September 18, 2002, we resolved to refer this case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.In her Report and Recommendation dated January 13, 2004, Commissioner Lydia A. Navarro of the IBP Commission on Bar Discipline made the following findings -"It is evident that for the amount of P56,000.00 paid by the complainant as reflected in the duly signed official receipts of respondent’s law office, no action had been taken nor any pleadings prepared by the respondent except his alleged conferences and opinions rendered when complainant frequented his law office, as his legal services.In view thereof, when complainant decided to withdrew respondent’s services as her counsel due to inaction; it is quite fair and incumbent upon the respondent to return whatever amount the complainant had already paid in the amount of P56,000.00 and the latter to compensate respondent for reasonable consultation fees due him which was not included in their retained agreement."and recommended as follows:"Wherefore, premises considered, it is respectfully recommended that the complaint against Atty. Melanio ‘Batas’ Mauricio, Jr., be dismissed and the respondent be required to refund the amount of Fifty Six Thousand Pesos (P56,000.00) to the complainant within two (2) months from receipt hereof, with the advice to be more discreet and cautious in dealing with clients relative to assessment and receipt of required fees in the future, specially those assisted by him through referral and accommodation; otherwise severe penalty will be imposed.Complainant is likewise ordered to pay respondent consultation fee equivalent to twenty percent (20%) of the whole amount of P56,000.00.RESPECTFULLY SUBMITTED." 1
On February 27, 2004, the IBP Board of Governors passed Resolution No. XVI-2004-121 adopting and approvingin toto the Report and Recommendation of Commissioner Navarro.We cannot sustain the recommendation of the IBP Board of Governors that this case should be dismissed.
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As found by IBP Investigating Commissioner Navarro, respondent agreed to handle Civil Case No. 00-044 on behalf of complainant for an acceptance fee of P25,000.00 which she paid. Respondent then demanded additional acceptance fee or a total of P48,000.00, instead of P25,000.00 initially agreed upon. In addition, respondent asked for P8,000.00 which according to him was intended as filing fee for a new case he was supposed to file.Hence, respondent received the total amount of P56,000.00 from complainant for his supposed legal services.When respondent accepted P56,000.00 from complainant, it was understood that he agreed to take up the latter’s case and that an attorney-client relationship between them was established. From then on, it was expected of him to serve complainant with competence and attend to her case with fidelity, care and devotion.However, there is nothing in the records to show that respondent entered his appearance as counsel of record for complainant in Civil Case No. 00-044. He did not even follow-up the case which remained pending up to the time she terminated his services.As to the P8,000.00, allegedly as docket fees for other cases, paid to respondent by complainant, the Investigating Commissioner found that "there was no evidence nor any pleadings submitted to show that respondent filed any case considering that the filing fee had to be paid simultaneously with the filing of a case."Canons 17 and 18 of the Code of Professional Responsibility, the body of rules governing the conduct of every member of the Bar in this jurisdiction, provides:"CANON 17 – A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM. CANON 18 – A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE."More specifically, Rule 18.03 states:"A LAWYER SHALL NOT NEGLECT A LEGAL MATTER ENTRUSTED TO HIM, AND HIS NEGLIGENCE IN CONNECTION THEREWITH SHALL RENDER HIM LIABLE."Also, respondent’s Attorney’s Oath declares that respondent shall impose upon himself the sacred duty, among others, that he will not delay any man for money or malice, and will conduct himself as a lawyer according to the best of his knowledge and discretion with all good fidelity to courts as well as to his clients.A member of the legal profession owes his client entire devotion to his genuine interest and warm zeal in the maintenance and defense of his rights.2 An attorney is expected to exert hisbest efforts and ability to protect his client’s case, for his unwavering loyalty to his client likewise serves the ends of justice. Indeed, the entrusted privilege of every lawyer to practice law carries with it his corresponding duties, not only to his client, but also to the court, to the bar and to the public.In Santos vs. Lazaro,3 we held that Rule 18.03 of the Code of Professional Responsibility, above-quoted, is a basic postulate in legal ethics. Verily, when a lawyer takes a client’s cause, he covenants that he will exercise due diligence in protecting his rights. The failure to exercise that degree of vigilance and attention makes such lawyer unworthy of the trust reposed in him by his client and makes him answerable not just to his client but also to the legal profession, the courts and society.4
Respondent insists that he is entitled to attorney’s fees since he gave legal advice and opinions to complainant on her problems and those of her family. Just like any other professional, a lawyer is entitled to collect fees for his services. However, he should charge only a reasonable amount of fees. Canon 20 of the Codeof Professional Responsibility mandates that "A lawyer shall charge only fair and reasonable fees." There is, however, no hard and fast rule which will serve as guide in determining what is or what is not a reasonable fee. That must be determined from the facts of each case.5 The power to determine the reasonableness or the unconscionable character of a lawyer’s fee is a matter falling within the regulatory prerogative of the Court.6
It is now clear to us that since respondent did not take any step to assist complainant in her case, chargingP56,000.00 is improper. While giving legal advice and opinion on complainant’s problems and those of her family constitutes legal service, however, the attorney’s fee must be reasonable. Obviously, P56,000.00 is exorbitant.
We cannot understand why respondent initially demanded P8,000.00 as filing fee from complainant when he very well knew that the docket fee for Civil Case No. 00-044 had been paid. If it was intended as a docket fee for another case, why did he not file the corresponding complaint?By his inaction in Civil Case No.00-044, respondent violated Canons 17, 18 and 18.03, earlier cited, as well as his Oath as an attorney. Likewise, in collecting from complainant exorbitant consulting fee, respondent violated Canon 20 of the same Code. For all these violations, respondent should be penalized.The facts of Sencio vs. Calvadores,7 bear a striking similarity to the present case. Respondent lawyer Sencio did not return the money to complainant despite demand following his failure to file the case. We found him guilty of violation of the lawyer’s oath,malpractice and gross misconduct and suspended him for six (6) months, and ordered to return to his client the amount of P21,000.00 with interest at 12% per annum from the date of the promulgation of our Resolution until the return of the amount.In Garcia vs. Manuel,8 we suspended respondent lawyer from the practice of law for six (6) months and ordered him to render an accounting of all monies he received from the complainant. We found him guilty of gross misconduct.WHEREFORE, respondent Atty. Melanio Mauricio, Jr. is hereby found GUILTY of malpractice and gross misconduct for violating Canons 17, 18, Rule 18.03 and 20 of the Code of Professional Responsibility and the Lawyer’s Oath. He is SUSPENDED from the practice of law for a period for six (6) months effective from notice, and STERNLY WARNED that any similar infraction in the future will be dealt with more severely. He is further ordered to RETURN, within ten (10) days, also from notice, the sum of P56,000.00 to complainant Valeriana U. Dalisay and submit to this Court proof of his compliance within three (3) days thereform.Let copies of this Decision be furnished the Court Administrator for his distribution to all courts of the land , the IBP, the Office of the Bar Confidant, and entered into respondent’s personal records as a member of the Philippine Bar.SO ORDERED.[G.R. No. 143791. January 14, 2005]PETER D. GARRUCHO, petitioner, vs. COURT OF APPEALS, HON. OSCAR B. PIMENTEL (in his capacity as Presiding Judge of the Regional Trial Court, Branch 148, Makati City), SHERIFF RENATO C. FLORA (in his capacity as Branch Sheriff), and RAMON BINAMIRA, respondents.D E C I S I O NCALLEJO, SR., J.:In a Letter dated July 18 and 26, 1990, then Secretary of the Department of Tourism and Chairman of the Board of Directors of the Philippine Tourism Authority (PTA) petitioner Peter D. Garrucho requested then Commissioner of Immigration and Deportation Andrea Domingo to issue Hold Departure Orders against Ramon Binamira and Faustino Roberto. This was in connection with the investigation being conducted by the Department of Justice involving anomalous transactions in government securities affecting the PTA which entailed the loss of someP161,000,000.00. Commissioner Domingo granted the request and issued Hold Departure Order Nos. 333 and 334 against Binamira and Roberto on the said date. Roberto requested the lifting of the order, and Secretary Garrucho opposed the same in a Letter dated August 22, 1990.Roberto then filed a complaint for prohibition and damages against petitioner Garrucho and Commissioner Domingo in the Regional Trial Court (RTC) of Makati City. Binamira, for his part, filed a complaint-in-intervention in the case. Petitioner Garrucho was represented by private practitioners Remollo & Associates, whose offices were located at Suite No. 23, Legaspi Suites, 178 Salcedo Street, Legaspi Village, Makati City.On April 16, 1997, the trial court rendered judgment in favor of respondent Binamira. The fallo of the decision reads:WHEREFORE, premises considered, judgment is hereby rendered in favor of plaintiff and against the defendants, and the latter are hereby ordered to, jointly and severally, pay the following:1. The amount of P100,000.00 as actual and compensatory damages;2. The amount of P1 million as moral damages;
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3. The amount of P500,000.00 as exemplary damages;4. The amount of P20,000.00 as attorney’s fees;5. Plus cost of suit.Further, Hold Departure Order No. 333 having been found to be void ab initio, unconstitutional and illegal, the preliminary injunction is hereby declared permanent.SO ORDERED.[1]
The petitioner and Commissioner Domingo appealed the decision to the Court of Appeals (CA). On March 9, 1999, the CA sent a notice by registered mail to the petitioner’s counsel directing the latter to file his brief as appellant. However, the notice was returned to the court. The envelope containing the said notice was stamped, thus: “Return To Sender, Moved Out.”[2] The CA resent the notice dated March 5, 1999 to the petitioner at his office at the Department of Tourism building, Agripino Circle, Manila. The notice was returned to the CA on May 5, 1999, again, having been “unclaimed.” The CA issued a minute resolution[3] on June 23, 1999, declaring that the service of notice on the petitioner was complete as of May 5, 1999. A copy of the said resolution was sent by registered mail to the petitioner in the Department of Tourism.On November 26, 1999, the appellate court issued a Resolution[4] dismissing the appeal of the petitioner for his failure to file his brief. A copy of the resolution was sent by registered mail to the petitioner’s counsel, but the said resolution was returned to the court with a notation stamped on the envelope “Return To Sender, Moved Out.”[5] The CA then had a separate copy of the notice served by registered mail on the petitioner at his office address, but the same was returned to the CA with the notation “Unclaimed.”The appellate court issued an entry of judgment.[6] A copy of the said entry of judgment was sent to the petitioner by registered mail at the Department of Tourism. Thus, the appeal of Commissioner Domingo was considered submitted for decision after filing her brief and the filing by the plaintiff-appellee of his brief.Binamira’s motion for a writ of execution against the petitioner was granted by the trial court on June 22, 2000. The trial court issued a writ of execution on June 28, 2000. The sheriff served a copy of the said writ on the petitioner on July 12 and 17, 2000, at his office at the Benpress Building, Pasig City.The petitioner filed a petition for certiorari under Rule 65 of the Rules of Court against the CA, the RTC, Sheriff Flora and Binamira, for the nullification of the CA resolutions dated June 23, 1999 and November 26, 1999, the June 22, 2000 Order of the RTC, as well as the June 28, 2000 writ of execution issued by the latter court.The petitioner alleged, inter alia, that the CA and RTC erred in issuing the assailed resolutions and order because he never received copies of the assailed CA resolutions which were sent to him at his former office at the Department of Tourism. He averred that he had resigned as Secretary of the Department of Tourism and Chairman of the PTA as early as January 9, 1991[7] and was no longer holding office thereat.[8]Since then, he had gone back to the private sector and held office at 417 Benpress Building, Meralco Avenue corner Echague Road, Ortigas Center, Pasig City. His counsel failed to receive his copy of the CA resolution because he transferred his office at Suite No. 23, Legaspi Suites, 178 Salcedo Street, Legaspi Village, Makati City, and his residence to Dumaguete City, Negros Occidental. He further alleged that the CA and the RTC were obliged to take judicial notice of his resignation as Tourism Secretary and the appointment of his successor, his appointment as Executive Secretary by President Fidel E. Ramos in July 1992, and his resignation from the said position in August/September 1992.The petitioner argues that he was deprived of his right to due process when the CA and the RTC failed to serve the copies of the assailed resolutions and order. He points out that his present office was not difficult to locate, considering his stature in business and politics in the country. He avers that there was no reason why the copies of the assailed resolutions and order could not be sent to him at the same office since the sheriff was able to locate his office on July 12 and 17, 2000.In his comment on the petition, the private respondent alleged that the petitioner was mandated to inform his counsel of his present address after he (the petitioner) resigned as Secretary of the Department of Tourism. It was also the duty of the petitioner’s counsel to inform the trial court of his new office address. The private respondent asserts that the petitioner must suffer the dire consequences of his and his counsel’s inexcusable negligence.
The respondent further contends that while the CA and the RTC were mandated to take judicial notice of the petitioner’s resignation and the appointment of his successor, they were not mandated to take judicial notice of the petitioner’s office address after he resigned from the government, or of the address of his counsel in Dumaguete City, Negros Occidental. The respondent asserts that such failure of the petitioner to inform the said courts of his address and that of his counsel constitutes inexcusable neglect. Thus, if the petitioner’s appeal was dismissed on account of his failure to file his brief, he has nobody but himself to blame.The petition has no merit.The contention of the petitioner that he was deprived of his right to due process when the CA dismissed his appeal because of his failure to file his brief as appellant therein has no factual and legal basis.The records show that the counsel of the petitioner in the trial court was the law firm of Remollo & Associates with offices at Suite No. 23, Legaspi Suites, 178 Salcedo Street, Legaspi Village, Makati City. Under Section 2, Rule 44 of the 1997 Rules of Civil Procedure, the counsel of the parties in the court of origin shall be considered as their counsel in the CA.[9]
Section 2, Rule 13 of the Rules of Civil Procedure provides that if any party has appeared by counsel, service upon him shall be made upon his counsel unless served upon the party himself is ordered by the trial court.[10] Notice or service made upon a party who is represented by counsel is a nullity. [11] Notice to the client and not to his counsel of record is not notice in law.[12] The rule admits of exceptions, as when the court or tribunal orders service upon a party or when the tribunal defendant is waived.[13]
In the absence of a proper and adequate notice to the court of a change of address, the service of the order or resolution of a court upon the parties must be made at the last address of their counsel on record.[14] It is the duty of the party and his counsel to device a system for the receipt of mail intended for them, just as it is the duty of the counsel to inform the court officially of a change in his address. It is also the responsibility of a party to inform the court of the change of his address so that in the event the court orders that an order or resolution be served on the said party to enable him to receive the said resolution or order.[15]
In the present case, the law firm of Remollo & Associates, the petitioner’s counsel of record, moved out from their office at the Legaspi Suites to Dumaguete City without informing the court of such fact. Based on its records, the CA believed that the law office of the petitioner’s counsel was still at the Legaspi Suites and sent copies of its resolutions to the counsel of the petitioner at the said address.Neither did the petitioner inform the court of his home or office address after his resignation as Secretary of the Department of Tourism where copies of the said order or resolution could be sent. Notwithstanding his stature in the business community, the CA cannot take judicial notice of the petitioner’s home address or his office address after his departure as Secretary of the Department of Tourism or as Executive Secretary of the President.Indeed, the petitioner has nobody but himself to blame. It was his responsibility to check the status of his appeal in the CA from time to time, from his counsel or from the CA. He failed to do so. As we held in Bernardo v. Court of Appeals:[16]
Litigants, represented by counsel, should not expect that all they need to do is sit back, relax and await the outcome of their case. They should give the necessary assistance to their counsel for what is at stake is their interest in the case.In his concurring opinion in Republic vs. Sandiganbayan, Mr. Justice Teodoro R. Padilla emphasized the value and significance of the party’s presence and diligence in the advancement of his cause, thus:xxx An almost lifetime of experience in litigation is the best witness to the indispensability of party’s presence (aside from his lawyer, in case he has the assistance of counsel) in order to litigate with any reasonable opportunity of success. xxx especially during the cross-examination of adverse party’s witnesses – where the truth must be determined – every counsel worth his salt must have the assistance and presence of his client on the spot, for the client invariably knows the facts far better than his counsel. In short, even in civil cases, the presence of party (as distinguished from his lawyer alone) is essential to due process.True enough, the party-litigant should not rely totally on his counsel to litigate his case even if the latter expressly assures that the former’s presence in court will no longer be needed. No prudent party will leave the fate of his case entirely to his lawyer. Absence in one or two hearings may be negligible but want of inquiry or
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update on the status of his case for several months (four, in this case) is inexcusable. It is the duty of a party-litigant to be in contact with his counsel from time to time in order to be informed of the progress of his case. Petitioner simply claims that he was busy with his gravel and sand and trading businesses which involved frequent traveling from Manila to outlying provinces. But this was not a justifiable excuse for him to fail to ask about the developments in his case or to ask somebody to make the query for him. Petitioner failed to act with prudence and diligence; hence, his plea that he was not accorded the right to due process cannot elicit this Court’s approval or even sympathy.[17]
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit.SO ORDERED. G.R. No. 40457 May 8, 1992MOBIL OIL PHILIPPINES, INC., petitioner, vs.COURT OF FIRST INSTANCE OF RIZAL, BRANCH VI, GEMINIANO F. YABUT and AGUEDA ENRIQUEZ YABUT, respondents.Ramon O. Nolasco and Manuel N. Camacho for petitioner.Felipe C. Magat for private respondents. NOCON, J.:This is a petition for review on certiorari filed by petitioner Mobil Oil Philippines, Inc. questioning (1) the Order of respondent Court of First Instance, Branch VI, Pasig, Rizal, promulgated on November 20, 1974 declaring its earlier Decision dated July 25, 1974 as null and void insofar as it concerned private respondents Geminiano F. Yabut and Agueda Enriquez-Yabut, and (2) the Order promulgated on February 20, 1975 and denying petitioner's Motion for the Issuance of a Writ of Execution and Appointment of Special Sheriff.The facts of the case are as follows:On November 8, 1972, petitioner filed a complaint 1 in the Court of First Instance of Rizal against the partnership La Mallorca and its general partners, which included private respondents, for collection of a sum of money arising from gasoline purchased on credit but not paid, for damages and attorney's fees.On December 22, 1972, petitioner, with leave of court, filed an Amended Complaint 2 impleading the heirs of the deceased partners as defendants. During the hearing held on April 1, 1974, after petitioner had presented its evidence, the parties agreed to submit the case for decision on the basis of the evidence on record adduced by petitioner but "to exclude past interest in the amount of P150,000.00 and to award nominal attorney's fees." Consequently, on July 25, 1974, a Decision 3 was rendered in favor of the petitioner and against defendants. Private respondents thereafter filed a Petition to Modify Decision and/or Petition for Reconsideration, 4 which was opposed 5 by petitioner.The Petition to Modify Decision and/or Reconsideration is predicated on the following grounds:1. That there was no stipulation or agreement of the parties on the award of attorney's fees;2. That Miguel Enriquez, not being a general partner, could not bind the partnership in the Sales Agreement he signed with plaintiff; and3. That defendant Geminiano Yabut already withdrew as partner and president of La Mallorca as of September 14, 1972.On November 20, 1974, respondent court issued its disputed Order 6 declaring its decision null and void insofar as private respondents were concerned on the ground that there was no evidence to show that the counsel for the defendants had been duly authorized by their respective clients to enter into a stipulation or facts, a compromise agreement or a confession judgment with petitioner, a ground never raised by the parties. Petitioner filed a Motion for Reconsideration and Clarification, 7 seeking the reconsideration of said order or, if not reconsidered, clarification from respondent court as to whether or not there will be further proceedings for reception of private respondents' evidence in court. Respondent court denied the motion, as well as petitioner's
Motion for the Issuance of a Writ of Execution and Appointment of Special Sheriff, by way of the Order dated February 20, 1975. Hence, this petition.The issue presented before Us is whether or not public respondent acted with grave abuse of discretion amounting to lack of jurisdiction in declaring null and void its earlier decision of July 25, 1974.We find merit in the instant petition.In the Order of November 20, 1974, 8 respondent court declared the decision dated July 25, 1974 null and void for the following reason:There is no evidence on record to show that the attorneys of record for the defendants had been duly authorized by their respective clients, including present movants, to enter into a stipulation of facts or a compromise agreement of confession of judgment. Ant any settlement or confession of judgment which an attorney may enter for his client without any written authority cannot bind the client. To be sure, the stipulation of facts which amounts to or approximates a compromise agreement, or waives a right or practically confesses judgment, entered into by a lawyer without the consent and conformity of his clients, is an absolute nullity. This precisely is what appears to be the stipulation of the movants, as well as the other defendants as the records show. In view of the conclusion thus reached, it would appear that there is no necessity to discuss the other grounds raised by the movants.The records show that the petitioner had already adduced evidence and formally offered its evidence in court; that at the hearing of April 1, 1974, for the presentation of defendants' evidence, the parties through their counsels, 9 mutually agreed to the waiver of the presentation of defendants' evidence on one hand, and the waiver of past interest in the amount of P150,000.00 on the part of the plaintiff and the payment of only nominal attorney's fees, thus the respondent court issued the following Order:Calling this case for hearing today, the parties pray the Court that they are submitting the case for decision on the basis of the evidence thus presented but to exclude past interest in the amount of about P150,000.00 and to award nominal attorney's fees.Finding the said motion in order, let judgment be rendered in accordance with the evidence so far presented. 10
The foregoing Order is not a stipulation of facts nor a confession of judgment. If at all, there has been a mutual waiver by the parties of the right to present evidence in court on the part of the defendants on one hand, and waiver of interest in the amount of P150,000.00 and the stipulated attorney's fees of 25% of the principal amount on the part of the plaintiff, except a nominal one.The counsels of the parties in this case had the implied authority to do all acts necessary or incidental to the prosecution and management of the suit in behalf of their clients of their clients who were all present and never objected to the disputed order of the respondent court. They have the exclusive management of the procedural aspect of the litigation including the enforcement of the rights and remedies of their client. Thus, when the case was submitted for decision on the evidence so far presented, the counsel for private respondents acted within the scope of his authority as agent and lawyer in negotiating for favorable terms for his clients. It may be that in waiving the presentation of defendants' evidence, counsel believed that petitioner's evidence was insufficient to prove its cause of action or knowing the futility of resisting the claim, defendants opted to waive their right to present evidence in exchange for the condonation of past interest in the amount of around P150,000.00 and the award of a nominal attorney's fees instead of the 25% stipulated in the Sales Agreement and Invoices. In fact, when counsel secured a waiver of the accumulated interest of P150,000.00 and the 25% stipulated attorney's fees, the defendants were certainly benefited.Parties are bound by the acts and mistakes of their counsel in procedural matters. Mistakes of counsel as to the relevancy or irrelevancy of certain evidence or mistakes in the proper defense, in the introduction of certain evidence, or in argumentation are, among others all mistakes of procedure, and they bind the clients, as in the instant case. 11
Having obtained what defendants bargained for and having wrongly appreciated the sufficiency or insufficiency of petitioner's evidence, private respondents are now estopped from assailing the decision dated July 25, 1974.
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Records would show that private respondents have not submitted any evidence or pleading to contest the authority of their counsel to waive as he did waive presentation of their evidence in exchange for and in consideration of petitioner's waiver of past interest and the stipulated 25% of attorney' fees.Even if We construe the Order of April 1, 1974 to be based on an oral compromise agreement, the same is valid for as held in the case of Cadano vs. Cadano 12 an oral compromise may be the basis of a judgment although written evidence thereof is not signed. It has been said that the elements necessary to a valid agreement of compromise are the reality of the claim made and the bona fides of the compromise. 13
The validity of a judgment or order of a court cannot be assailed collaterally unless the ground of attack is lack of jurisdiction or irregularity in their entry apparent on the face of the record or because it is vitiated by fraud. If the purported nullity of the judgment lies on the party's lack of consent to the compromise agreement, the remedy of the aggrieved party is to have it reconsidered, and if denied, to appeal from such judgment, or if final to apply for relief under rule 38. 14 It is well settled that a judgment on compromise is not appealable and is immediately executory unless a motion is field to set aside the compromise on the ground of fraud, mistake or duress, in which case an appeal may be taken from the order denying the motion. 15
Moreover, We do not find the grounds relied upon in private respondents' Petition to Modify Decision to be meritorious.Mr. Miguel Enriquez automatically became a general partner of the partnership La Mallorca being one of the heirs of the deceased partner Mariano Enriquez. Article IV of the uncontested Articles of Co-Partnership of La Mallorca provides:IV. Partners. –– The parties above-named, with their civil status, citizenship and residences set forth after their respective names, shall be members comprising this partnership, all of whom shall be general partners.If during the existence of this co-partnership, any of the herein partners should die, the co-partnership shall continue to exist amongst the surviving partners and the heir or heirs of the deceased partner or partners; Provided, However, that if the heir or heirs of the deceased partner or partners elect not to continue in the co-partnership, the surviving partners shall have the right to acquire the interests of the deceased partner or partners at their book value based upon the last balance sheet of the co-partnership, and in proportion to their respective capital contributions; And, Provided Further, that should a partner or partners desire to withdraw from the co-partnership and the remaining partners are not willing to acquire his or their shares or interest in the co-partnership in accordance with the foregoing provisions, the co-partnership shall not thereby be dissolved, but such retiring partner or partners shall only be entitled to his or their shares in the assets of the co-partnership according to the latest balance sheet which have been drawn prior to the date of his or their withdrawal. In such event, the co-partnership shall continue amongst the remaining partners. 16
As to respondent Geminiano Yabut's claim that he cannot be liable as a partner, he having withdrawn as such, does not convince Us. The debt was incurred long before his withdrawal as partner and his resignation as President of La Mallorca on September 14, 1972. Respondent Geminiano Yabut could not just withdraw unilaterally from the partnership to avoid his liability as a general partner to third persons like the petitioner in the instant case.This is likewise true with regard to the alleged non-active participation of respondent Agueda Yabut in the partnership. Active participation in a partnership is not a condition precedent for membership in a partnership so as to be entitled to its profits nor be burdened with its liabilities.From the foregoing, it is evident that the court a quo erred in issuing the Orders of November 20, 1974 and February 20, 1975 nullifying the decision dated July 25, 1974 and dismissing the complaint against private respondents Geminiano Yabut and Agueda Enriquez Yabut.WHEREFORE, the Orders of November 20, 1974 and February 20, 1975 is hereby REVERSED and SET ASIDE and the Decision dated July 25, 1975 is reinstated and declaring the same valid and binding against private respondents Geminiano Yabut and Agueda Enriquez-Yabut. With costs de officio.SO ORDERED.FIRST DIVISIONA.C. No. 2519 August 29, 2000
TEODORO R RIVERA, ANTONIO D. AQUINO and FELIXBERTO D. AQUINO, complainants, vs.ATTY. SERGIO ANGELES, respondent.R E S O L U T I O NYNARES-SANTIAGO, J.:On March 25, 1983, complainants filed a Complaint for Disbarment against Atty. Sergio Angeles on the grounds of Deceit and Malpractice. The Affidavit-Complaint1 reads as follows:"1. The undersigned are plaintiffs in Civil Cases Nos. Q-12841 and Q-13128 of the Court of First Instance of Rizal, Branch V at Quezon City;2. Atty. Sergio Angeles is their counsel of record in the said cases and his office is located at Suite 335, URC Building, 2123 España, Manila;3. That after receiving favorable decision from the CFI on May 21, 1973 and sustained by the Court of Appeals and the Supreme Court an alias writ of execution was issued in said cases;4. That in the first week of January 1983 we obtained from the CFI a sheriff's return, dated November 10, 1982, stating that no leviable property can be found in the premises of the defendants;5. That on or before January 13, 1983, we learned that Mr. Rodolfo M. Silva, one of the defendants in said cases had already given Atty. Angeles a partial settlement of the judgment in the amount of P42,999.00 (as evidenced by xerox copies of Partial Settlement of Judgment dated September 21, 1982 and Receipt of Payment dated September 22, 1982, hereto attached as Annexes "A" and "B", respectively), without our knowledge.6. That Atty. Sergio Angeles never informed the undersigned of the amount of P42,999.00 he received from Mr. Silva nor remitted to them even a part of that amount;7. That a demand letter was sent to Atty. Sergio Angeles which was received by him on February 17, 1983, but as of this date the undersigned have not yet received any reply. (See Exhibit "C" and "D" attached)."In his Comment filed on June 21, 1983, respondent denied the accusations and stated that he has the right to retain the said amount of P42,999.00 and to apply the same to professional fees due him under the subsequent agreement first with complainant Teodoro Rivera and later with Mrs. Dely Dimson Rivera as embodied in the Deed of Assignment (Annex "8")2 or under the previous agreement of P20% of P206,000.00.Complainants, in their Reply,3 vehemently denied the assignment of their rights to respondent.Thereafter, this case was referred to the Solicitor General for investigation, report and recommendation in our Resolution dated November 21, 1983. The Office of the Solicitor General considered this case submitted for resolution on April 30, 1985 by declaring respondent's right to present evidence as considered waived due to the latter's failure to appear on the scheduled hearings. However, the records from said Office do not show any resolution.In October 1998, the Integrated Bar of the Philippines issued an Order requiring the parties to manifest whether or not they are still interested in prosecuting this case, or whether supervening events have transpired which render this case moot and academic or otherwise. The copy of said Order sent to the complainants was received by their counsel on October 30, 1998 while the copy to the respondent was returned unclaimed.Investigating Commissioner Julio C. Elamparo submitted his report on April 29, 1999 finding respondent Atty. Sergio Angeles guilty of violating the Code of Professional Responsibility specifically Rule 1.01, Canon 16 and Rule 16.01 thereof and recommends his indefinite suspension from the practice of law.The Board of Governors of the Integrated Bar of the Philippines on June 19, 1999, issued a resolution, the decretal portion of which reads:"RESOLUTION NO. XIII-99-151Adm. Case No. 2519Teodoro R Rivera, et al. vs.Atty. Sergio AngelesRESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner in the above-entitled case, herein made part of this Resolution/Decision as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws
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and rules, with an amendment that Atty. Sergio Angeles is SUSPENDED from the practice of law for ONE (1) YEAR for his having been found guilty of practicing deceit in dealing with his client."The Court finds merit in the recommendation of the Integrated Bar of the Philippines. Respondent's act of deceit and malpractice indubitably demonstrated his failure to live up to his sworn duties as a lawyer. The Supreme Court repeatedly stressed the importance of integrity and good moral character as part of a lawyer's equipment in the practice of his profession.4 For it cannot be denied that the respect of litigants for the profession is inexorably diminished whenever a member of the Bar betrays their trust and confidence.5
The Court is not oblivious of the right of a lawyer to be paid for the legal services he has extended to his client but such right should not be exercised whimsically by appropriating to himself the money intended for his clients. There should never be an instance where the victor in litigation loses everything he won to the fees of his own lawyer.WHEREFORE, respondent Atty. Sergio Angeles, is SUSPENDED from the practice of law for ONE (1) YEAR for having been found guilty of practicing deceit in dealing with his client.This Resolution shall take effect immediately and copies thereof furnished the Office of the Bar Confidant, Integrated Bar of the Philippines and appended to respondent's personal record.SO ORDERED.1FIRST DIVISIONA.M. No. RTJ-05-1900 January 28, 2005SHIRLEY LORIA TOLEDO and ROSIE LORIA DAJAC, complainants, vs.JUDGE ALFREDO E. KALLOS, respondent.R E S O L U T I O NDAVIDE, JR., C.J.:For our resolution is the verified complaint, written in the vernacular and dated 21 August 2002, of siblings Shirley Loria Toledo and Rosie Loria Dajac against respondent Judge Alfredo E. Kallos, Presiding Judge of the Regional Trial Court (RTC) of Legazpi City, Branch 10, for violation of the Code of Judicial Conduct, the Code of Professional Responsibility, and Article 1491 (5) of the Civil Code.Prior to his appointment as a judge in March 1995,1 Judge Kallos was complainants’ counsel of record in Civil Case No. 4879 filed with the RTC of Legazpi City, Branch 4, involving the recovery of hereditary shares with damages. On 25 March 1979, a judgment was rendered ordering the defendants to, among other things, turn over to herein complainants, the plaintiffs therein, the possession and ownership of the total area of 4,514 square meters of "lot 2082 Albay Cadastre." On appeal, the decision was affirmed by the Court of Appeals and became final and executory on 16 December 1985.2
Several years thereafter, or in February 2002, the respondent filed in the same action, Civil Case No. 4879, before the RTC of Legazpi, Branch 4, an Omnibus Motion3 praying, inter alia, for the issuance an order constituting in his favor an attorney’s lien to the extent of one-third over the lot awarded in favor of the complainants representing his attorney’s fee. He based his motion on a written contingency agreement on attorney’s fees for professional services rendered whereby he is entitled to one-third share of what would be awarded to the complainants. He claimed that this agreement had already been implemented when "one of the three (3) lots levied upon by the sheriff to answer for the award of damages was given to (him) as his one-third share while the other two lots went to the plaintiffs as their two-third share … [as] evidenced by the Definite Deed of Sale and Transfer Certificate of Titles Nos. T-77728, T-77458 and T-77459." However, he misplaced a copy of said written agreement.In the meantime, or on 5 September 2002, the complainants filed before this Court, through the Office of the Court Administrator, the subject verified complaint. Here, complainants pray for three things. First, they pray for an order directing the respondent to stop demanding his "1/3 share attorney’s fees." They assert that the respondent has no basis for his claim because he failed to show in court proof of the alleged written contingency fee agreement. They also belie respondent’s insistence in his Omnibus Motion that the said agreement had already been implemented when, on execution, one of three lots levied upon by the sheriff was given to him as
his 1/3 share. They emphasize that all the lots levied by the sheriff were given to them. However, the respondent "forced" them to sign a Deed of Absolute Sale on 16 January 1990 involving a parcel of land valued in the document at P10,000, but actually worth more than P500,000, in payment of his attorney’s fees. While they did not want to sign the document because respondent appeared in their case only during execution, they were constrained to do so for fear that something adverse might happen to their case, as the respondent so warned them. The latter told them that they would not have won the case were it not for his services.The complainants thus seek, as their second prayer, the recovery of the property involved in said Deed of Absolute Sale. They argue that pursuant to Article 1491(5) of the Civil Code, lawyers are prohibited from buying their client’s properties when the same are still the object of litigation. To prove that the respondent was still their counsel when the sale took place, the complainants attached to their complaint the Motion to Terminate Services dated 23 June 1994, which was based on respondent’s being remiss in his duties and responsibilities as their lawyer, and the Order of the court dated 29 June 1994, approving the termination.Third, the complainants pray for the removal of the respondent from his position as RTC judge for his alleged abusive conduct unbecoming a judge.In his Comment dated 25 November 2002, the respondent denies the allegations against him and asserts that he is only claiming what is due him. He vehemently denies that he appeared in the case only during the execution stage, pointing to the Minutes of Hearing and the Order, both dated 05 October 1973, which show that he entered his appearance as counsel for the complainants as early as 5 October 1973, or two months after the complaint was filed. He continuously handled the case from then on, as shown by copies of the minutes of the hearings and orders issued by the RTC, until a favorable judgment was rendered on 25 March 1979 and the subject properties were levied upon on execution to satisfy the judgment. He insists that he was never remiss in the performance of his duties and responsibilities as complainants’ counsel.The respondent further alleges that the existence of the agreement on attorney’s fees was admitted by complainant Shirley Loria Toledo as evidenced by the order issued by the court on 01 March 2002, which states that Ms. Toledo came to the court informally informing it that she had a copy of the contract on attorney’s fees.4
As regards the Deed of Absolute Sale, respondent admits that he was still complainants’ lawyer when the lot was transferred in his name. The lot was given to him by the complainants and their mother, pursuant to their written contingency agreement, as his 1/3 share in the three parcels of land levied upon by the sheriff to settle the accrued rentals awarded in the second paragraph of the dispositive portion of the decision. He did not pay for it. The figure appearing on the document was written only to facilitate the transaction. He never compelled the complainants and their mother to sell to him the parcel of land. Neither did he tell them that nothing would happen to their case without him.Finally, the respondent asserts that his claim for attorney’s fees is still being litigated in Civil Case No. 4879. Thus, the instant complaint is premature.In their Rejoinder dated 7 January 2003, the complainants insist that there is no basis for respondent’s claim for attorney’s fees for the following reasons: (1) the respondent failed to present the agreement on attorney’s fees; (2) attorney’s fees were not awarded by the RTC or the Court of Appeals; and (3) Civil Case No. 4879 is in its execution stage.After evaluating the pleadings submitted by the parties, the Court Administrator found5 that respondent was, indeed, complainants’ counsel in Civil Case No. 4879, and he should therefore be compensated for his services. The act of demanding payment for his attorney’s fees is not a ground for administrative liability. However, he can be allowed only fair and reasonable attorney’s fees under Canon 20 of the Code of Professional Responsibility. As to this, the Court Administrator stated:On the question of whether respondent violated Article 1491(5) of the Civil Code, the Court Administrator found that this may be fairly resolved in an investigation, there being a factual dispute, and recommended that the complaint be referred to an Associate Justice of the Court of Appeals pursuant to Section 3, Rule 140 of the Rules of Court. On the basis of this recommendation, we referred the matter to Associate Justice Jose Mendoza of the Court of Appeals for investigation, report, and recommendation.
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In his Report,6 Justice Mendoza found that the respondent indeed represented the complainants in Civil Case No. 4879. Like the Court Administrator, he expresses the view that the act of demanding attorney’s fees for services rendered is not a ground for administrative sanction. He finds that when the respondent made the demand, he did so as a lawyer who obtained a favorable judgment for his client, and not as a judge. As a lawyer, it is but just that he be fairly compensated for his services. And his filing of a claim for attorney’s fees in Civil Case No. 4879 was an appropriate legal remedy. Considering the pendency of such claim, Justice Mendoza recommends the suspension of the determination of the instant administrative complaint until the rendition of a final judicial ruling on the matter of respondent’s attorney’s fees; thus:As the said issue is still being litigated in the Regional Trial Court in Civil Case No. 4879, it is the view of the undersigned that the complaint is still premature ….In other words, the complaint is not yet ripe for administrative evaluation. The hearing on the matter being conducted by the court below should be allowed to run its course as that court is the appropriate forum for a ruling on the dispute….…To make a determination at this time on whether the respondent violated Article 1491 (A) would be to preempt the lower court in its resolution of the issue. Any recommendation by the undersigned in this administrative case and subsequent resolution by the Honorable Supreme Court on the matter would certainly affect or influence the thinking of the trial court before which the matter is pending. In such a case, it will be unfair to either party. At any rate, the party who would feel aggrieved might still elevate the decision to the higher courts.This recommendation is not without precedent. In the case of Spouses De Leon v. Hon. Bonifacio, Adm. Case No. 4467, October 10, 1997, the then Deputy Court Administrator, Hon. Reynaldo Suarez, recommended the dismissal of the case for being judicial in nature or, at least, premature….…In this case, the respondent is not being charged for his acts or decisions as a judge. Rather, he has been charged for dealing with the property of his client which is prohibited by law. Nevertheless, the principle is the same, in that, the matter is still judicial in nature.We agree with Justice Mendoza.It is fundamental that a claim for attorney’s fees may be asserted either in the very action in which the services of a lawyer had been rendered or in a separate action.7 The respondent chose to file his claim for attorney’s fees in the same case in which he served as counsel for the complainants. As mentioned, this is a proper remedy under our jurisdiction and is preferred to an independent action as it avoids multiplicity of suits. Besides, the right to recover attorney’s fees is but an incident of the case in which the services of counsel have been rendered. Moreover, the court trying the case is to a certain degree already familiar with the nature and extent of the lawyer’s services8 and is in a better position to decide the question of fees.Undisputably, respondent’s claim for attorney’s fees is under litigation. We find in the records an Order dated 7 January 2004 issued in Civil Case No. 4879 which granted respondent’s prayer for "1/3 share of attorney’s fees in the proceeds of litigation" as claimed in his Omnibus Motion dated 14 February 2002. This Order is the subject of a motion for reconsideration by the complainants, as stated in respondent’s Manifestation dated 24 January 20049filed in the investigation proceedings conducted by Justice Mendoza. Also part of the records is respondent’s Affidavit dated 1 December 2003, filed in the same investigation proceedings, alluding to the complainants’ filing of a Petition for Certiorari and Mandamus in the Court of Appeals, docketed as CA-G.R. SP No. 80090, seeking to reverse the Order of the trial court denying complainants’ Motion to Dismiss respondent’s Omnibus Motion.We, therefore, find no cogent reason for us to resolve complainants’ first two issues raised in the verified complaint, for they are inextricably inherent in the claim of the respondent in his Omnibus Motion, which is pending judicial determination. Since respondent’s claim for attorney’s fees in the main case has not yet become final, the objection of prematurity obtains, as a contrary holding may be preemptive of a final judicial determination of factual and evidentiary matters inherent in the claim.10 Clearly, the reliefs asked by the complainants are judicial in nature.11 And, if only for an orderly administration of justice, the proceedings in Civil
Case No. 4879 should be allowed to continue and take its course, and the claim of the respondent judicially settled first.But while we give deference to the wisdom of the trial court to initially decide respondent’s claim for attorney’s fees, we deem it appropriate to reiterate certain principles governing the payment of attorney’s fees and impart our observations on the instant claim. Foremost of these principles is that the act of demanding attorney’s fees for services rendered is not a ground for an administrative sanction. On the contrary, Canon 20 of the Code of Professional Responsibility allows lawyers to charge fair and reasonable fees. As long as a lawyer honestly and in good faith serves and represents the interest of the client, he should have a reasonable compensation for his service.12
Lawyers are thus as much entitled to judicial protection against injustice on the part of their clients as the clients are against abuses on the part of counsel. The duty of the court is not only to see that lawyers act in a proper and lawful manner, but also to see that lawyers are paid their just and lawful fees.13 Thus, in J.K. Mercado and Sons Agricultural Enterprises, Inc. v. De Vera ,14 citing Albano v. Coloma,15 we stressed:While, indeed, the practice of law is not a business venture, a lawyer, nevertheless, is entitled to be duly compensated for professional services rendered. So, also, he must be protected against clients who wrongly refuse to give him his just due. In Albano vs. Coloma, this Court has said:"Counsel, any counsel, who is worthy of his hire, is entitled to be fully recompensed for his services. With his capital consisting solely of his brains and with his skill, acquired at tremendous cost not only in money but in the expenditure of time and energy, he is entitled to the protection of any judicial tribunal against any attempt on the part of a client to escape payment of his fees. It is indeed ironic if after putting forth the best that is in him to secure justice for the party he represents, he himself would not get his due. Such an eventuality this Court is determined to avoid. It views with disapproval any and every effort of those benefited by counsel’s services to deprive him of his hard-earned honorarium. Such an attitude deserves condemnation."It should be stressed in this connection that the absence of a written contract will not preclude the finding that there was a professional relationship that justifies the collection of attorney’s fees for professional services rendered. Documentary formalism is not an essential element in the employment of an attorney; the contract may be express or implied. To establish the relation, it is sufficient that the advice and assistance of an attorney is sought and received in any matter pertinent to his profession.16 Hence, with or without a contingency agreement between the complainants and the respondent, the trial court must determine the propriety of respondent’s claim for attorney’s fees and the reasonable amount thereof.The third issue raised in the verified complaint deserves a short shrift. No evidence was presented to prove respondent’s alleged abusive conduct unbecoming a judge. The complainants do not dispute the fact that the respondent was not yet a judge when the assailed action or conduct was allegedly committed by him. As such, and to that extent, there is no reason to bind him by the strict standards of the Code of Judicial Conduct for acts committed as counsel to a case prior to his appointment as a judge.WHEREFORE, the instant administrative complaint is DISMISSED for being premature and for lack of merit.SO ORDERED.FIRST DIVISIONG.R. No. 160334 September 11, 2006GUENTER BACH, petitioner, vs.ONGKIKO KALAW MANHIT & ACORDA LAW OFFICES, respondent.D E C I S I O NCHICO-NAZARIO, J.:This Petition for Review on Certiorari seeks to reverse the Decision1 dated 8 October 2003 of the Court of Appeals in CA-G.R. CV No. 74445, entitled, "Ongkiko Kalaw Manhit & Accorda Law Offices v. Guenter Bach."The facts as culled from the records of the case are as follows:On 7 November 1994, petitioner Guenter Bach engaged the services of respondent law firm Ongkiko Kalaw Manhit & Accorda Law Offices to represent him in a Petition for Declaration of Nullity of Marriage filed before
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the Regional Trial Court (RTC) of Makati City, Branch 143, docketed as Civil Case No. 95-224. The parties signed a "Fee Agreement," for the legal services to be rendered by respondent. The provision for payment of the legal services reads:(a) seven and one-half (7 ½ % ) of all cash recoveries, including damages, interests, attorney's fees and costs; as well as(b) five percent (5 %) of the market value of all properties awarded to [the petitioner] by the court or obtained through the compromise agreement, valued at the time of recovery.2
However, on 5 December 1995, respondent withdrew its appearance as counsel of petitioner, due to policy differences. On 18 December 1995, respondent sent the termination billing3 for the services they rendered and billed petitioner the total amount of P1,000,000.00 plus 2% interest for every month of delay in payment, based on the provision for termination of services stated in their Fee Agreement, thus:(C) Interest for late paymentAll fees mentioned herein are payable within seven (7) days from receipt of our statement of account. It is understood that all late payments shall be subject to interest payment at the rate of 2 % per month of delay, a fraction of a month being considered as one month, counted from the date the fees shall fall due, without need of prior demand.x x x x(F) Termination ClauseIt is understood that you may terminate our services at any time. In such an event, we shall be entitled to collect fees for legal services already performed and results obtained based on quantum meruit."4
On 7 March 1996, respondent filed with the RTC a Notice5 of Charging Lien over the properties of the spouses Bach.On 5 February 1997, the RTC issued an Order6 directing the annotation of the charging lien in the amount ofP1,000,000.00 on all the titles of the spouses Bach's personal and real properties enumerated in the notice of charging lien.On 11 February 1999, respondent received a copy of the Order7 dated 8 June 1998, granting petitioner's Motion to Withdraw his petition in Civil Case No. 95-224.Despite respondent's demands for his legal fees, petitioner failed and refused to pay. Thus, respondent filed a Complaint8 for a sum of money also before the RTC of Makati, Branch 148, docketed as Civil Case No. 99-514. Respondent prayed for the payment of the following: P1,000,000.00 as the latter's lawful fees for services rendered in Civil Case No. 95-224, plus 2% interest from date of final demand until paid; P250,000.00 as exemplary damages; P200,000.00 representing billable time spent in prosecuting the case, plus anotherP150,000.00 for any appeal taken; and P50,000.00 as litigation expenses and the cost of suit.Within the period for filing an Answer, petitioner filed a Motion9 to dismiss on the ground that respondent's claim had already been paid, waived, abandoned or otherwise extinguished. Petitioner contended that prior to respondent's withdrawal as counsel in Civil Case No. 95-224, petitioner had already paid respondent's services in the total amount of P200,000.00. On 9 August 1999, the Motion to Dismiss was denied10 by the RTC for lack of merit. Petitioner failed to file his Answer; thus, he was declared in default and respondent was allowed to present its evidence ex parte.11
On 24 January 2002, the RTC rendered its judgment in favor of the respondent, the dispositive portion of which reads:WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and against the defendant and the latter is hereby ordered to pay the following:1. The amount of P750,000.00 as plaintiff's lawful fees for services rendered under Civil Case No. 95-224, plus interest at the rate of 2% per month from the date of demand until paid;2. P700,000.00 representing billable time which was spent in prosecuting this case;3. P50,000.00 as and litigation expenses, and4. Costs of suit.12
Not satisfied, petitioner appealed to the Court of Appeals, which modified the RTC Decision, thus:
WHEREFORE, Based on the foregoing premises, the instant appeal is PARTLY GRANTED and the appealed January 24, 2002 Decision of the Regional Trial Court of Makati City-Branch 148 in Civil Case No. 99-514 is hereby MODIFIED. Accordingly, the award of P700,000.00 representing billable time allegedly spent in the prosecution of the case a quo is hereby DELETED. All other aspects of the appealed DECISION are UPHELD.13
Hence, this Petition filed by petitioner Guenter Bach raising the following issues to wit:WHETHER OR NOT UNDER THE CONCEPT OF QUANTUM MERUIT, THE AMOUNT OF P750,000.00 AS FEES FOR SERVICES RENDERED WITH INTEREST PEGGED AT 2% A MONTH FROM DATE OF DEMAND UNTIL FULLY PAID IS REASONABLEWHETHER OR NOT THERE IS LEGAL BASIS TO AWARD P50,000.00 AS AND FOR LITIGATION EXPENSES AND COSTS OF SUIT.14
On the first issue, petitioner contends that the P750,000.00 awarded to the respondent by way of quantum meruit, with interest of 2% a month from date of demand until fully paid, is excessive, unreasonable and confiscatory. Thus, petitioner prays for reduction of the same.Both the Court of Appeals and the trial court approved the attorney's fees in the total amounts of P750,000.00 plus 2 % interest for the services rendered by respondent in Civil Case No. 95-224. In this regard, the rule is that the issue of the reasonableness of attorney's fees based on quantum meruit is a question of fact, and well-settled is the rule that conclusions and findings of fact by the lower courts are entitled to great weight on appeal and will not be disturbed except for strong and cogent reasons. The findings of the Court of Appeals by itself, which are supported by substantial evidence, are almost beyond the power of review by the Supreme Court.15 Thus, in the exercise of the Supreme Court's power of review the findings of facts of the Court of Appeals are conclusive and binding on the Supreme Court. There are, however, recognized exceptions to this rule, namely: (1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in making the findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellee and the appellant; (7) when the findings are contrary to the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondent; (10) when the findings of facts are premised on the supposed absence of evidence and contradicted by the evidence on record; and (11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which if properly considered, would justify a different conclusion.16 Exceptions (4) and (11) are present in the case at bar, and so this Court shall make its own determination of the facts relevant for the resolution of the case.Ordinarily, therefore, we would have remanded this case for further reception of evidence as to the extent and value of the services rendered by respondent to petitioner. However, so as not to needlessly prolong the resolution of a comparatively simple controversy, we deem it just and equitable to fix in the present recourse a reasonable amount of attorney's fees in favor of respondent.There are two concepts of attorney's fees. In the ordinary sense, attorney's fees represent the reasonable compensation paid to a lawyer by his client for the legal services rendered to the latter. On the other hand, in its extraordinary concept, attorney's fees may be awarded by the court as indemnity for damages to be paid by the losing party to the prevailing party.17
The issue in this case concerns attorney's fees in the ordinary concept. Generally, the amount of attorney's fees due is that stipulated in the retainer agreement which is conclusive as to the amount of the lawyer's compensation. In the absence thereof, the amount of attorney's fees is fixed on the basis of quantum meruit, i.e., the reasonable worth of the attorney's services. Courts may ascertain also if the attorney's fees are found to be excessive, what is reasonable under the circumstances.18 In no case, however, must a lawyer be allowed to recover more than what is reasonable, pursuant to Section 24, Rule 138 of the Rules of Court, which provides:SEC. 24. Compensation of attorney's fees; agreement as to fees.- An attorney shall be entitled to have and recover from his client no more than a reasonable compensation for his services, with a view to the importance
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of the subject - matter of the controversy, the extent of the services rendered, and the professional standing of the attorney. No court shall be bound by the opinion of attorneys as expert witnesses as to the proper compensation, but may disregard such testimony and base its conclusion on its own professional knowledge. A written contract for services shall control the amount to be paid therefor unless found by the court to be unconscionable or unreasonable. (Underscoring supplied.)We have identified the circumstances to be considered in determining the reasonableness of a claim for attorney's fees as follows: (1) the amount and character of the service rendered; (2) labor, time, and trouble involved; (3) the nature and importance of the litigation or business in which the services were rendered; (4) the responsibility imposed; (5) the amount of money or the value of the property affected by the controversy or involved in the employment; (6) the skill and experience called for in the performance of the services; (7) the professional character and social standing of the attorney; (8) the results secured; and (9) whether the fee is absolute or contingent, it being recognized that an attorney may properly charge a much larger fee when it is contingent than when it is not.19
Rule 20.1, Canon 20 of the Code of Professional Responsibility enumerates the following factors which should guide a lawyer in determining his fees:(a) the time spent and extent of services rendered or required;(b) the novelty and difficulty of the questions involved;(c) the importance of the subject matter;(d) the skill demanded;(e) the probability of losing other employment as a result of the acceptance of the proffered case;(f) the customary charges for similar services and the schedule of fees of the IBP Chapter to which he belongs;(g) the amount involved in the controversy and the benefits resulting to the client from the service;(h) the contingency or certainty of compensation;(i) the character of the employment, whether occasional or established; and(j) the professional standing of the lawyer.In determining a reasonable fee to be paid to respondent as compensation for their services on quantum meruit, based on the factors abovequoted, it is proper to consider all the facts and circumstances obtaining in this case.It is undisputed that respondent firm had rendered services as counsel for the petitioners in Civil Case No. 95-244. The services rendered consist of the following:1. Respondent was able to annotate a notice20 of lis pendens on the property of Spouses Bach in Caloocan City covered by TCT No. C-12112, thereby preventing easy disposition of the property by Luzviminda Bach;2. Respondent was likewise able to annotate a notice21 of lis pendens on the property of Spouses Bach in Pasig City covered by TCT No. 48223, thereby preventing disposition of the property by Luzviminda Bach;3. Further, respondent annotated a notice22 of lis pendens on the property of Spouses Bach in Dasmarinas, Cavite covered by TCT No. T-339282, thereby preventing disposition of the property by Luzviminda Bach;4. Additionally, respondent annotated a notice23 of lis pendens on the property of Spouses Bach in Tanza, Cavite, covered by TCT No. T-255263, thereby preventing disposition of the property by Luzviminda Bach;5. Respondent also worked on the annotation of the notice24 of lis pendens on the property of Spouses Bach in Makati, covered by TCT No. S-62541, thereby preventing disposition of the property by Luzviminda Bach;6. Respondent worked on the annotation of a notice of lis pendens on the property of Spouses Bach in Dasmariñas, Cavite, covered by TCT No. T-380848, thereby preventing disposition of the property by Luzviminda Bach;7. Respondent annotated a notice25 of lis pendens on the property of Spouses Bach situated in Tagaytay City, covered by TCT No. P-705, thereby preventing disposition of the property by Luzviminda Bach;8. Respondent filed the Petition26 for Declaration of Nullity of Marriage and Dissolution of the Conjugal Partnership of Gains of petitioner with his wife;9. Respondent prepared an affidavit27 in favor of petitioner attesting to the fact of petitioner's marriage and their properties acquired during his marriage with Luzviminda Bach:
10. Respondent prepared an ex parte motion28 to declare petitioner's wife to have waived her right to file answer for failure to file the same within the period granted by law and to direct the public prosecutor to determine whether or not a collusion exist;11. Respondent prepared a Petition29 for appointment of a receiver and to compel petitioner's wife to render an accounting;12. Other services included the filling of several oppositions30 to certain motions filed by petitioner's wife;13. Respondent filed a motion31 to set the case for preliminary investigation;14. Respondent filed an ex parte motion32 to declare petitioner's wife in default;15. Respondent submitted a supplemental comment33 on the motion for leave to withdraw funds from Certificate of Participation filed by petitioner's wife;16. Respondent filed a manifestation and motion34 praying the court to direct petitioner's wife to designate her lead counsel in the case;17. Respondent prepared a Reply35 to comments on opposition of petitioner;18. Respondent was able to secure an Order36 from the said court freezing the United Coconut Planters Bank (UCPB) account in the name of petitioner's wife, Luzviminda Bach, containing about P6,500,000.00, representing the balance of the proceeds from the sale of their conjugal property in Pasig City;19. Respondent represented petitioner in numerous hearings in Civil Case No. 95-224, evidenced by the signatures of the lawyers of respondent Law Firm in the minutes dated 25 April 1995, 27 April, 1995, 14 June 1995, 27 June 1995, 1 August 1995, 11 August 1995, 22 September 1995,10 October 1995, 17 October 1995, 1 December 1995, 7 December 1995, 29 March 1996 and 16 January 1997;37
20. Conducted several preliminary and post litigation conferences in the proceedings for preliminary injunction leading to the freezing of the bank account of the parties; and21. Prepared and sent out numerous letters to third parties and entities to protect the interest of petitioner and notices to petitioner updating him of the status of the case and the courses of action taken by respondent Law Firm.38
In sum, the services rendered by the respondent as enumerated above and as admitted39 by Atty. Mario Ongkiko during the ex parte hearing, consist of annotating notice of lis pendens on the conjugal properties of petitioner and his wife; filing the Petition for Declaration of Nullity of Marriage; preparing and filing various pleadings and documents relevant to the case; obtaining a freeze order of petitioner's funds in the UCPB; attending hearings in Civil Case No. 05-224, and sending notices to petitioner updating the latter of the status of the case. Nothing in Civil Case No. 95-224 so far appears complicated and no extra ordinary skill was needed for lawyers of respondent Law Firm to accomplish what they had done in the case before they withdrew their appearance. We do not find herein a situation so intricate that demands more than a careful scrutiny of the legal matters involved. These are simply the normal duties of a lawyer that he is bound by law to render to his clients with utmost fidelity for which his client must not be burdened to pay an extra price. It bears stressing that at the time respondent firm withdrew their appearance due to policy differences with petitioner, the case was still in its initial stage.Guided by the above yardstick and so much of the pertinent data as are extant in the records of this case and in the exercise of our sound discretion, we hold that the amount of P500,000.00 is a reasonable and fair compensation for the legal services rendered by respondent to the petitioner.The imposition of legal interest on the amount payable to private respondent as attorney's fees is unwarranted. Even as we agree that parties can freely stipulate on the terms of payment, still the imposition of interest in the payment of attorney's fees is not justified. In the case of Cortes v. Court of Appeals,40 we ruled that Article 220941of the Civil Code does not even justify the imposition of legal interest on the payment of attorney's fees as it is a provision of law governing ordinary obligations and contracts. It deleted the 6% interest imposed by the appellate court on the payment of attorney's fees. It ratiocinated by citing Mambulao Lumber Co. v. Philippine National Bank,42 thus:Contracts for attorney's services in this jurisdiction stands upon an entirely different footing from contracts for the payment of compensation for any other services. x x x [A]n attorney is not entitled in the absence of express
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contract to recover more than a reasonable compensation for his services; and even when an express contract is made, the court can ignore it and limit the recovery to reasonable compensation if the amount of the stipulated fee is found by the court to be unreasonable. This is a very different rule from that announced in section 1091 of the Civil Code with reference to the obligation of contracts in general, where it is said that such obligation has the force of law between the contracting parties. Had the plaintiff herein made an express contract to pay his attorney an uncontingent fee ofP2,115.25 for the services to be rendered in reducing the note here in suit to judgment, it would not have been enforced against him had he seen fit to oppose it, as such a fee is obviously far greater than is necessary to remunerate the attorney for the work involved and is therefore unreasonable. In order to enable the court to ignore an express contract for attorney's fees, it is necessary to show, as in other contracts, that it is contrary to morality or public policy (Art.1255, Civil Code). It is enough that it is unreasonable or unconscionable. (Emphases supplied.)We have held that lawyering is not a moneymaking venture and lawyers are not merchants.43 Law advocacy, it has been stressed, is not capital that yields profits. The returns it births are simple rewards for a job done or service rendered. It is a calling that, unlike mercantile pursuits which enjoy a greater deal of freedom from governmental interference, is impressed with a public interest, for which it is subject to State regulation.44
A lawyer is not merely the defender of his client's cause and a trustee of his client's cause of action and assets; he is also, and first and foremost, an officer of the court and participates in the fundamental function of administering justice in society.45 It follows that a lawyer's compensation for professional services rendered are subject to the supervision of the court, not just to guarantee that the fees he charges and receives remain reasonable and commensurate with the services rendered, but also to maintain the dignity and integrity of the legal profession to which he belongs. Upon taking his attorney's oath as an officer of the court, a lawyer submits himself to the authority of the courts to regulate his right to charge professional fees.46
Though we reduced the award of attorney's fees and disallowed the imposition of interest thereon, the fact that an attorney plays a vital role in the administration of justice underscores the need to secure to him his honorarium lawfully earned as a means to preserve the decorum and respectability of the legal profession. A lawyer is as much entitled to judicial protection against injustice, imposition of fraud on the part of his client as the client against abuse on the part of his counsel. The duty of the court is not alone to see that a lawyer acts in a proper and lawful manner; it is also its duty to see that a lawyer is paid his just fees. With his capital consisting only of his brains and with his skill acquired at tremendous cost not only in money but in expenditure of time and energy, he is entitled to the protection of any judicial tribunal against any attempt on the part of his client to escape payment of his just compensation. It would be ironic if after putting forth the best in him to secure justice for his client, he himself would not get his due.47
Thus, the Court of Appeals did not err in awarding expenses of litigation. Article 2208, paragraphs 2, 5 and 11, of the Civil Code, authorize the recovery of such fees "(2) When the defendant's act or omission has compelled the plaintiff to litigate x x x or to incur expenses to protect his interest; x x x (5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff's plainly valid, just and demandable claim; x x x and (11) In any other case where the court deems it just and equitable that attorney's fees and expenses of litigation should be recovered." Considering the fact that respondent was drawn into this litigation by petitioner to protect and defend their interest and taking into account the services already rendered by respondent to petitioner, the sum ofP30,000.00 as expenses of litigation and cost of suit would be reasonable under the premises.WHEREFORE, the Decision appealed from is AFFIRMED WITH MODIFICATIONS to the effect that the attorney's fees awarded to respondent is REDUCED to P500,000.00, the legal interest of 2% on the amount due to respondent is DELETED, and the award of litigation expenses is REDUCED to P30,000.00.SO ORDERED.FIRST DIVISIONA.C. No. 4215 May 21, 2001FELICISIMO M. MONTANO, complainant, vs.INTEGRATED BAR OF THE PHILIPPINES and Atty. JUAN S. DEALCA, respondents.
KAPUNAN, J.:In a verified complaint filed before this Court on March 9, 1994, complaint Felicisimo M. Montano charged Atty. Juan Dealca with misconduct and prays that he be "sternly dealt with administratively." The complaint1 is summarized as follows:1. On November 14, 1992, the complainant hired the services of Atty. Juan S. Dealca as his counsel in collaboration with Atty. Ronando L. Gerona in a case pending before the Court of Appeals docketed as CA-G.R. CV No. 3767 wherein the complainant was the plaintiff-appellant.2. The parties agreed upon attorney's fees in the amount of P15,000.00 fifty percent (50%) of which was payable upon acceptance of the case and the remaining balance upon the termination of the case. Accordingly, complainant paid respondent the amount of P7,500.00 representing 50% of the attorney's fee.3. Thereafter, even before respondent counsel had prepared the appellant's brief and contrary to their agreement that the remaining balance be payable after the termination of the case, Atty. Dealca demanded an additional payment from complainant obliged by paying the amount of P4,000.00.4. Prior to the filing of the appellant's brief, respondent counsel again demanded payment of the remaining balance of P3,500.00. When complainant was unable to do so, respondent lawyer withdraw his appearance as complainant's counsel without his prior knowledge and/or conformity. Returning the case folder to the complainant, respondent counsel attached a Note dated February 28, 1993,2 stating:
28 February 1994
Pepe and Del Montano,
For breaking your promise, since you do not want to fulfill your end of the bargain, here's your reward:Henceforth, you lawyer for yourselves. Here are your papers.
Johnny
Complainant claimed that such conduct by respondent counsel exceeded the ethical standards of the law profession and prays that the latter be sternly dealt with administratively. Complainant later on filed motions praying for the imposition of the maximum penalty of disbarment.After respondent counsel filed his comment on the complaint, the Court in the Resolution of August 1, 1994, referred the case of the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.The Investigating Commissioner found respondent counsel guilty of unprofessional conduct and recommended that he be "severely reprimanded." However, in a Resolution3 by the IBP Board of Governors on July 26, 1997, it was resolved that the penalty recommended by the Investigating Commissioner meted to respondent be amended to "three (3) months suspension from the practice of law for having been found guilty of misconduct, which eroded the public confidence regarding his duty as a lawyer."Respondent counsel sought reconsideration of the aforementioned resolution of the IBP, alleging that the latter misapprehended the facts and that, in any case, he did not deserve the penalty imposed. The true facts, according to him, are the following.1. Complainant is being represented by Atty. Ronando L. Gerona in his case on appeal;2. Due to the ailment of Atty. Gerona's daughter, he could not prepare and submit complainant's appellant's brief on time;3. Complainant wen to the respondent to do just that, i.e., prepare and submit his appellant's brief on time at the agreed fee of P15,000.00, 50% down and 50% upon its completion;4. Working overtime, respondent was able to finish the appellant's brief ahead of its deadline, so he advised the complainant about its completion with the request that the remaining balance of P7,500.00 be paid. Complainant paid P4,000.00 only, promising to pay the P3,500.00 "tomorrow" or on "later particular date." Please take note that, at this juncture, there was already a breach of the agreement on complainant's part.
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5. When that "tomorrow" or on a "later particular date" came, respondent, thru a messenger, requested the complainant to pay the P3,500.00 as promised but word was sent that he will again pay "tomorrow" or on a "later date." This promise-non-payment cycle went on repeatedly until the last day of the filing of the brief. Please take note again that it was not the respondent but the complainant who sets the date when he will pay, yet he fails to pay as promised;6. Even without being paid completely, respondent, of his own free will and accord, filed complainant's brief on time;7. After the brief was filed, respondent tried to collect from the complainant the remaining balance of P3,500.00, but the latter made himself scare. As the records would show, such P3,500.00 remains unpaid until now;8. Sensing that something was amiss, respondent sent the February 28, 1993 note and case folder to the complainant, hoping that the latter would see personally the former about it to settle the matter between them;9. However, instead of seeing the respondent, complainant filed this case;10. Respondent was constrained to file his withdrawal with the Court of Appeals because of this case to avoid further misunderstanding since he was the one who signed the appellant's brief although Atty. Gerona was his counsel of record. Such withdrawal was accordingly granted by the appellate court;xxx xxx xxx.4
Respondent counsel further averred that complainant's refusal to pay the agreed lawyer's fees, measly as it was, was deliberate and in bad faith; hence, his withdrawal as counsel was "just, ethical and proper." Respondent counsel concluded that not only was the penalty of suspension harsh for his act of merely trying to collect payment for his services rendered, but it indirectly would punish his family since he was the sole breadwinner with children in school and his wife terminally ill with cancer.In its Resolution No. XIII-97-129 dated October 25, 1997, the IBP denied Atty. Dealca's motion for reconsideration, to wit:xxxRESOLVED TO DENY Atty. Dealca's Motion For Reconsideration of the Board's Decision in the above-entitled case there being no substantive reason to reverse the finding therein. Moreover, the motion is improperly laid the remedy of the respondent is to file the appropriate pleading with the Supreme Court within fifteen (15) days from receipt of notice of said Decision pursuant to Sec. 12 [c] of Rule 139-B.5
On December 10, 1997, this Court noted the following pleadings filed in the present complaint,(a) notice and a copy of Resolution No. XII-97-154 dated July 26, 1997 of the Integrated Bar of the Philippines amending the recommendation of the Investigating Commissioner of reprimand to three (3) months suspension of respondent from the practice of law for having been found guilty of misconduct which eroded the public confidence regarding his duty as a lawyer;(a) complainant's motion praying for the imposition of the maximum penalty of disbarment;(b) motion dated September 15, 1997 of respondent for reconsideration of the aforesaid resolution of July 26, 1997;(c) comment/opposition of respondent praying that the motion for the imposition of the maximum penalty be denied;(d) comment of complainant praying that the penalty of three (3) months suspension from the practice of law as recommended by the Integrated Bar of the Philippines pursuant to resolution No. XII-97-154 be raised to a heavier penalty;(e) comment/manifestation/opposition of complainant praying that the respondent be disbarred; and(g) rejoinder of respondent praying that this case be dismissed for being baseless.6
and referred the same to the IBP for evaluation and report.In compliance therewith, on March 28, 1998, the IBP issued Resolution No. XIII-98-42 referring the above-entitled case to Commissioner Vibar for evaluation, report and recommendation "in view of the Motion for Reconsideration granted by the Supreme Court."The Investigating Commissioner, after referring the case, recommended that his original recommendation of the imposition of the penalty of reprimand be maintained, noting that respondent counsel had served the IBP well as
President of the Sorsogon Chapter.7 Accordingly, on February 23, 1999, the IBP Board of Governors, issued the following resolution:RESOLUTION NO. XIII-99-48xxxRESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner in the above-entitled case, herein made part of this Resolution/Decision as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, the Motion for Reconsideration be granted and that the penalty of REPRIMAND earlier recommended by the Investigating Commissioner be imposed on Atty. Juan S. Dealca.8
Complainant asked the IBP to reconsider the foregoing resolution but the motion was denied.9
On April 10, 2000, complainant filed with this Court a petition for review on certiorari in connection with Administrative Case No. 4215 against the IBP and respondent counsel averring that the IBP Board of Governors committed grave abuse of discretion when it overturned its earlier resolution and granted respondent counsel's motion for reconsideration on February 23, 1999. He claimed that the earlier resolution denying the motion for reconsideration issued on October 25, 1997 had already become final and executory; hence, any further action or motion subsequent to such final and executory judgment shall be null and void.When the Court issued the resolution of December 10, 1997 treating the several pleadings filed in the present complaint, it should be noted that the IBP resolution denying respondent's motion for reconsideration (Resolution No. XIII-97-129) dated October 25, 1997, for some reason, had not yet reached this Court. As of that date, the only IBP resolution attached to the records of the case was Resolution No. XII-97-54 amending the administrative sanction from reprimand to three months suspension. Hence, at the time the pleadings were referred back to the IBP in the same resolution, the Court was not aware that the IBP had already disposed of the motion for reconsideration filed by respondent counsel.Thus, when the IBP was informed of the said Court resolution, it construed the same as granting Atty. Dealca's motion for reconsideration and as an order for IBP to conduct a re-evaluation of the case. The IBP assumed that its resolution of October 25, 1997 was already considered by this Court when it referred the case back to the IBP. It failed to notice that its resolution denying the motion for reconsideration was not among those pleadings and resolution referred back to it.Hence, on the strength of this Court's resolution which it had inadvertently misconstrued, the IBP conducted a re-evaluation of the case and came up with the assailed resolution now sought to be reversed. The Court holds that the error is not attributable to the IBP. It is regrettable that the procedural infirmity alleged by complainant actually arose from a mere oversight which was attributable to neither party.Going into the merits, we affirm the findings made by the IBP that complainant engaged the services of respondent lawyer only for the preparation and submission of the appellant's brief and the attorney's fees was payable upon the completion and submission of the appellant's brief and not upon the termination of the case.There is sufficient evidence which indicates complainant's willingness to pay the attorney's fees. AS agreed upon, complainant paid half of the fees in the amount of P7,500.00 upon acceptance of the case. And while the remaining balance was not yet due as it was agreed to be paid only upon the completion and submission of the brief, complainant nonetheless delivered to respondent lawyer P4,000.00 as the latter demanded. This, notwithstanding, Atty. Dealca withdrew his appearance simply because of complainant's failure to pay the remaining balance of P3,500.00 which does not appear to be deliberate. The situation was aggravated by respondent counsel's note to complainant withdrawing as counsel which was couched in impolite and insulting language.10
Given the above circumstances, was Atty. Dealca's conduct just and proper?We find Atty. Dealca's conduct unbecoming of a member of the legal profession. Under Canon 22 of the Code of Professional Responsibility, a lawyer shall withdraw his services only for good cause and upon notice appropriate in the circumstances. Although he may withdraw his services when the client deliberately fails to pay the fees for the services,11 under the circumstances of the present case, Atty. Dealca's withdrawal was unjustified as complainant did not deliberately fail to pay him the attorney's fees. In fact, complainant exerted honest efforts
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to fulfill his obligation. Respondent's contemptuous conduct does not speak well of a member of the bar considering that the amount owing to him was only P3,500.00. rule 20.4 of Canon 20, mandates that a lawyer shall avoid controversies with clients concerning his compensation and shall resort to judicial action only to prevent imposition, injustice or fraud. Sadly, for not so large a sum owed to him by complainant, respondent lawyer failed to act in accordance with the demands of the Code.The Court, however, does not agree with complainant's contention that the maximum penalty of disbarment should be imposed on respondent lawyer. The power to disbar must be exercised with great caution. Only in a clear case of misconduct that seriously affects the standing and character of the lawyer as an officer of the Court and member of the bar will disbarment be imposed as a penalty. It should never be decreed where a lesser penalty, such as temporary suspension, would accomplish the end desired.12 In the present case, reprimand is deemed sufficient.WHEREFORE, in view of the foregoing, respondent Atty. Juan S. Dealca is REPRIMANDED with a warning that repetition of the same act will be dealt with more severely.1âwphi1.nêtSO ORDERED.
A.C. No. 5534 January 17, 2005JAYNE Y. YU, complainant, vs.RENATO LAZARO BONDAL, respondent.D E C I S I O NCARPIO MORALES, J.:Atty. Renato Lazaro Bondal (respondent) stands charged in a complaint1 filed by Jayne Y. Yu (complainant) for gross negligence and violation of Canon 162 and Rule 16.033 of the Code of Professional Responsibility arising from his alleged failure to attend to the five cases she referred to him and to return, despite demand, the amount of P51,716.54 she has paid him.By complainant’s allegation, the following spawned the filing of the present administrative complaint:On March 30, 2000, she engaged the services of respondent as counsel in the following cases: (1) "Jayne Yu. v. Swire Realty and Development Corp," for Rescission with Damages filed before the Housing and Land Use Regulatory Board, (2) I.S. No. 00-22089-90, "Jayne Yu v. Lourdes Fresnoza Boon," for Estafa, (3) I.S. No. 2000-G-22087-88, "Jayne Yu v. Julie Teh," for violation of Batas Pambansa Blg. 22, (4) I.S. No. 2000-D-11826, "Jayne Yu v. Mona Lisa San Juan" for violation of Batas Pambansa Blg. 22, and (5) I.S. No. 2000-D-11827, "Jayne Yu v. Elizabeth Chan Ong," also for violation of Batas Pambansa Blg. 22.4
In the Retainer Agreement5 dated March 30, 2000, complainant agreed to pay respondent the amount ofP200,000.00 as Acceptance Fee for the five cases, with an Appearance Fee of P1,500.00 pesos per hearing; and in the event that damages are recovered, she would pay respondent 10% thereof as success fee.Complainant later issued two checks, BPI Family Bank No. 94944 and BPI Family Bank No. 94968, dated February 20, 2001 and April 5, 2001 in the amount of P30,000.00 and P21,716.54, respectively.6
Despite receipt of above-said amounts, respondent failed to file a case against Swire Realty and Development Corp;7 due to respondent’s negligence, the case for estafa against Lourdes Fresnoza Boon was dismissed by the Office of the City Prosecutor of Makati City and was not timely appealed to the Department of Justice;8 respondent negligently failed to inform complainant, before she left for abroad, to leave the necessary documents for purposes of the preliminary investigation of the case filed against Julie Teh before the Office of the City Prosecutor of Makati City, which case was eventually dismissed by Resolution dated August 14, 2000;9 and respondent compelled her to settle the two cases for violation of B.P. Blg. 22 against Mona Lisa San Juan and Elizabeth Chan Ong under unfair and unreasonable terms.101a\^/phi1.netRespondent thus demanded from respondent, by letter11 of June 14, 2001, for the return of all the records she had entrusted him bearing on the subject cases.Through complainant’s counsel (Chavez Laureta and Associates Law Office) which sent a letter12 to respondent, she reiterated her demand for the return of the records of the cases.
Respondent did return but only the records bearing on the estafa case against Lourdes Fresnoza Boon and the B.P. Blg. 22 case against Mona Lisa San Juan.Complainant through counsel thus demanded, by letter13 of August 8, 2001, the return of the rest of the files, particularly that dealing with Swire Realty and Development Corporation and Julie Teh. In the same letter, complainant also demanded the refund of the amounts covered by the above-said two BPI Family Bank Checks amounting to P51,716.54, they being intended to represent payment of filing fees for the case against Swire Realty and Development Corporation which respondent failed to file.As respondent failed and continues to refuse to comply with complainant’s valid demands in evident bad faith and to her prejudice, she filed the present complaint charging him with flagrant violation of Canon 16 and Canon 16.03 of the Code of Professional Responsibility.By Resolution14 of February 4, 2002, this Court directed respondent to file his Comment. Respondent, through his counsel, the Escobido and Pulgar Law Offices, filed a motion for extension for thirty days or up to April 9, 2002, which was granted by Resolution of May 27, 2002. No copy was, however, furnished respondent’s counsel.15
As respondent failed to file his Comment on the present complaint, this Court, by Resolution of July 21, 2003, considered the filing of respondent’s comment deemed waived and allowed complainant to present her evidence before the Office of the Bar Confidant.16
At the hearing before the Officer of the Bar Confidant, complainant echoed her allegations in the complaint.As to the other cases referred by complainant to respondent, complainant testified that the case against Julie Enriquez-Teh was dismissed because respondent failed to present the original checks subject of the case;17 that the estafa case against Ms. Lourdes Boon was dismissed and was never appealed;18 and that she was prodded by respondent to settle the two cases for B.P. Blg. 22 even if she was not satisfied with the terms thereof, respondent having assured her that he would waive his 10% "success fee" in the case against Swire Development.19
And complainant submitted the following documentary evidence: (1) Retainer Agreement between her and Atty. Renato Lazaro Bondal;20 (2) BPI Family Bank Check No. 94944 dated February 20, 2001 for P30,000.00 payable to cash;21 (3) BPI Family Bank Check No. 94968 dated April 5, 2001 for P21,716.54 payable to cash;22 (4) Resolution of the City Prosecutor of Makati dated August 18, 2000 on a case between Jayne Yu and Lourdes Fresnoza Boon;23 (5) Resolution of the City Prosecutor of Makati on a case between her and Julie Enriquez-Teh;24 (5) her letter to respondent dated June 14, 2001 requesting the return of pertinent records of the cases referred to him;25 (6) letter of Francisco I. Chavez to respondent dated July 18, 2001 reiterating the request for the return of the records and an accounting of the amount of P51,716.54;26 (7) letter of Francisco I. Chavez to respondent dated August 8, 2001 confirming the receipt of two folders relative to the cases she filed against Lourdes Fresnoza Boon and Mona Lisa San Juan, requesting Atty. Bondal to return the files bearing on Swire Realty and Development Corporation and Julie Teh, and demanding the refund of the amount of P51,716.54.27
The Office of the Bar Confidant, by Report and Recommendation,28 recommends the dismissal of the complaint for failure of complainant to substantiate it.From the records of the case, it is culled that except for the case against Swire Development Corporation, the other 4 cases referred by complainant to respondent were filed in court but were dismissed or terminated for causes not attributable to respondent.The case for estafa against Lourdes Fresnoza Boon in I.S. No. 00-22089-90 was dismissed by the Makati Prosecutor’s Office by Resolution dated August 18, 2000 due to lack of probable cause and, in any event, the issues raised therein were in the nature of intra-corporate disputes which are properly cognizable by another forum, viz:After careful examination and evaluation of the evidence adduced both by complainant and respondent,undersigned Investigating Prosecutor finds no probable cause to hold respondent for the offense charged of Estafa. Apparently, there was no deceit and/or unfaithfulness or abuse of confidence employed by respondent when complainant agreed to invest her money in the restaurant business under the name and style of La Gondola, Inc. which is owned by respondent. xxx In the present case, though, complainant alleged that respondent immediately upon receipt of the P4,800,000.00 representing her investment in the restaurant
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business, executed earlier in favor of Philippine Commercial and International Bank whereby La Gondola assumed the loans and credit accommodations obtained by Lucre Export/Import Inc., using the funds of La Gondola, Inc.; respondent being the President and majority owner of the latter corporation. However, outside of the mere allegation of complainant that respondent allegedly assumed the loans and credit accommodations extended to the other company using the funds of La Gondola, Inc., no concrete and real evidence were presented and/or proven to this effect by complainant. xxxMoreover, it is apparent that the issues being raised by complainant appears to be intra-corporate disputes which could be very well settled in another forum.29 (Underscoring supplied)Notably, a similar complaint for the same offense, docketed as I.S. No. 99-H-2780, had been previously filed by complainant against Ms. Boon which case was dismissed for insufficiency of evidence.30 As thus observed by the Office of the Bar Confidant, the filing of an appeal from the prosecutor’s resolution would have been inutile since the facts and issues raised in the estafa case had already been twice passed upon by the Office of the City Prosecutor, hence, it would likely be dismissed.31
No fault or negligence can also be attributed to respondent in the dismissal of I.S. No. 2000-G-22087-88 against Julie Teh. By Resolution of August 14, 2000 of the Makati Prosecutor’s Office, it is clear that it was dismissed, in the main, on the ground that the offense charged did not actually exist and complainant failed to appear and present the original checks, viz:After a careful evaluation of the evidence on record, the undersigned recommends for the dismissal of the present complaints on the following grounds:1. Despite reasonable opportunity given to her, complainant failed to appear and present the original copies of the subject checks and other documents attached to the complaint.2. The subject checks were presented after the 90-day period hence there is no more presumption of knowledge of the insufficiency of funds. Accordingly, the burden is shifted upon the complainant to prove that at the time the checks were issued, the drawer knew that he had insufficient funds. There is no allegation much less proof to that effect. The result is that the element of knowledge of insufficiency of funds or credit is not present, therefore the crime does not exist.32
On the alleged failure of respondent to appear during the hearing of I.S. No. 2000-G-22087-88 and his failure to present the original of the checks subject thereof, they being then in the possession of complainant who was abroad at that time:33 Such failure to present the original of the checks cannot solely be attributed to respondent, for she herself was guilty of neglect.34
As for the alleged compulsion in the settlement of her two complaints for violation of B.P. Blg. 22 in accordance with the terms dictated by the therein respondents Mona Lisa San Juan and Elizabeth Chan Ong, upon the promise of respondent that he would waive the 10% success fee in the complaint to be filed against Swire Development: Assuming the truthfulness of her allegation that respondent compelled her to settle, what the terms were as alleged to have been dictated by Ms. San Juan and Ms. Chan Ong, and the manner and/or extent of prejudice she suffered, complainant did not establish. Moreover, she failed to show that the promise by respondent that he would waive the 10% success fee was for the purpose of defrauding her or of such nature as to constitute undue influence, thereby depriving her of reasonable freedom of choice.Subsequent to the amicable settlement, it appears that complainant never raised any objection to the terms of the compromise. As an accepted rule, when a client, upon becoming aware of the compromise and the judgment thereon, fails to promptly repudiate the action of his attorney, he will not afterwards be heard to complain about it.35
As for complainant’s claim that the amount of P51,716.54, which was the only amount on record that complainant paid for respondent’s legal services, was intended for the filing fees in the complaint against Swire Development Corporation, the same was not substantiated as in fact the retainer agreement does not so confirm.We would like to thank you for retaining our law firm in the handling and representation of your case. In regard tothe five cases you referred to us, our aggregate Acceptance fee is P200,000 Pesos with an Appe
arance fee ofP1,500.00 Pesos per hearing. As regards the damages to be recovered, we will get 10% thereof by way of Success Fee.36 (Underscoring supplied)If, admittedly, the only payment given to complainant by respondent is the amount of P51,716.54, then complainant still owes respondent more, as respondent rendered his legal services in 4 out of the 5 cases. An acceptance fee is not a contingent fee, but is an absolute fee arrangement which entitles a lawyer to get paid for his efforts regardless of the outcome of the litigation. That complainant was dissatisfied with the outcome of the four cases does not render void the above retainer agreement for respondent appears to have represented the interest of complainant. Litigants need to be reminded that lawyers are not demi-gods or "magicians" who can always win their cases for their clients no matter the utter lack of merit of the same or how passionate the litigants may feel about their cause.371awphi1.nétIn sum, this Court finds well taken the finding of the Office of the Bar Confidant that complainant failed to establish the guilt of respondent by clear, convincing and satisfactory proof. The charges against him must thus be dismissed.38
However, since respondent had been advised by complainant through counsel Chavez Laureta and Associates, by letter of July 18, 2001, that she intended to terminate his services, as of said date, he was obliged, under Rule 22.02 of the Code of Professional Responsibility, viz:Rule 22.02 – A lawyer who withdraws or is discharged shall, subject to a retainer lien, immediately turn over all papers and property to which the client is entitled, and shall cooperate with his successor in the orderly transfer of the matter, including all information necessary for the proper handling of the matter,to immediately turn over all papers and property which complainant entrusted to his successor.WHEREFORE, the complaint is hereby DISMISSED. Respondent is, however, hereby directed to RETURN all the records in his possession relative to the cases he handled for complainant.Panganiban, (Chairman), Sandoval-Gutierrez, Corona, and Garcia, JJ., concur.
A.C. No. 6273 March 15, 2010ATTY. ILUMINADA M. VAFLOR-FABROA, Complainant, vs.ATTY. OSCAR PAGUINTO, Respondent.D E C I S I O NCARPIO MORALES, J.:An Information for Estafa1 was filed on June 21, 2001 against Atty. Iluminada M. Vaflor-Fabroa (complainant) along with others based on a joint affidavit-complaint which Atty. Oscar Paguinto (respondent) prepared and notarized. As the joint affidavit-complaint did not indicate the involvement of complainant, complainant filed a Motion to Quash the Information which the trial court granted.2 Respondent’s Motion for Reconsideration of the quashal of the Information was denied3
Respondent also filed six other criminal complaints against complainant for violation of Article 31 of Republic Act No. 6938 (Cooperative Code of the Philippines) before the Office of the Provincial Prosecutor, but he eventually filed a Motion to Withdraw them.4
On October 10, 2001, complainant, who was Chairperson of the General Mariano Alvarez Service Cooperative, Inc. (GEMASCO), received a Notice of Special General Assembly of GEMASCO on October 14, 2001 to consider the removal of four members of the Board of Directors (the Board), including her and the General Manager.5 The notice was signed by respondent.At the October 14, 2001 Special General Assembly presided by respondent and PNP Sr. Supt. Angelito L. Gerangco (Gerangco), who were not members of the then current Board,6 Gerango, complainant’s predecessor, as Chair of the GEMASCO board, declared himself Chair, appointed others to replace the removed directors, and appointed respondent as Board Secretary.On October 15, 2001, respondent and his group took over the GEMASCO office and its premises, the pumphouses, water facilities, and operations. On even date, respondent sent letter-notices to complainant and
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the four removed directors informing them of their removal from the Board and as members of GEMASCO, and advising them to cease and desist from further discharging the duties of their positions.7
Complainant thus filed on October 16, 2001 with the Cooperative Development Authority (CDA)-Calamba a complaint for annulment of the proceedings taken during the October 14, 2001 Special General Assembly.The CDA Acting Regional Director (RD), by Resolution of February 21, 2002, declared the questioned general assembly null and void for having been conducted in violation of GEMASCO’s By-Laws and the Cooperative Code of the Philippines.8 The RD’s Resolution of February 21, 2002 was later vacated for lack of jurisdiction9 of CDA.In her present complainant10 against respondent for disbarment, complainant alleged that respondent:X X X PROMOTED OR SUED A GROUNDLESS, FALSE OR UNLAWFUL SUIT, AND GAVE AID AND CONSENT TO THE SAME11
X X X DISOBEYED LAWS OF THE LAND, PROMOTE[D] DISRESPECT FOR LAW AND THE LEGAL PROFESSION12
X X X DID NOT CONDUCT HIMSELF WITH COURTESY, FAIRNESS AND CANDOR TOWARD HIS PROFESSIONAL COLLEAGUE AND ENGAGED IN HARASSING TACTICS AGAINST OPPOSING COUNSEL13
X X X VIOLATED CANON 19 – A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL WITHIN THE BOUNDS OF THE LAW14
X X X RUINED AND DAMAGED NOT ONLY THE GEN. MARIANO ALVAREZ SERVICES COOPERATIVE, INC. (GEMASCO, INC.) BUT THE ENTIRE WATER-CONSUMING COMMUNITY AS WELL15
Despite the Court’s grant,16 on respondent’s motion,17 of extension of time to file Comment, respondent never filed any comment. The Court thus required him to show cause why he should not be disciplinarily dealt with,18 but just the same he failed to comply.19
The Court thus referred the complaint to the Integrated Bar of the Philippines (IBP) for investigation, report, and recommendation.20
It appears that during the mandatory conference before the IBP, complainant proposed the following issues:1. Whether or not the acts of respondent constitute violations of the Code of Professional Responsibility, particularly the following:1.1 Canon 1 – A lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and legal [processes].1.2 Canon 8 – A lawyer shall conduct himself with courtesy, fairness, and candor toward his professional colleagues, and shall avoid harassing tactics against opposing counsel.1.3 Canon 10 – A lawyer owes candor, fairness and good faith to the court.1.4 Canon 19 – A lawyer shall represent his client with zeal within the bounds of the law.1.5 Rule 12.03 – A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda or briefs, let the period lapse without submitting the same or offering an explanation for his failure to do so.2. Whether or not the above acts of respondent constitute violations of his lawyer’s oath, particularly the following:2.1 support the Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein2.2 will do no falsehood, nor consent to the doing of any in court2.3 will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same2.4 will delay no man for money or malice3. Whether or not the above acts of [respondent] complained of are grounds for disbarment or suspension of attorneys by the Supreme Court as provided for in Section 27, Rule 138 of the Revised Rules of Court.21
Respondent’s counsel who represented him during the conference proposed the issue of whether, on the basis of the allegations of the complaint, misconduct was committed by respondent.22
After the conclusion of the conference, both parties were ordered to submit position papers.23 Complainant filed hers,24 but respondent, despite grant, on his motion, of extension of time, did not file any position paper.In her Report and Recommendation,25 Investigating Commissioner Lolita A. Quisumbing found respondent guilty of violating the Lawyer’s Oath as well as Canons 1, 8, 10, and Rule 12.03 of the Code of Professional
Responsibility. Noting that respondent had already been previously suspended for six months, the Commissioner recommended that respondent be suspended for two years.The IBP Commission on Bar Discipline (CBD) Board of Governors opted for the dismissal of the complaint, however, for lack of merit.261avvphi1On Motion for Reconsideration,27 the IBP-CBD Board of Governors recommended that respondent be suspended from the practice of law for six months.The Court finds that by conniving with Gerangco in taking over the Board of Directors and the GEMASCO facilities, respondent violated the provisions of the Cooperative Code of the Philippines and the GEMASCO By-Laws. He also violated the Lawyer’s Oath, which provides that a lawyer shall support the Constitution and obey the laws.When respondent caused the filing of baseless criminal complaints against complainant, he violated the Lawyer’s Oath that a lawyer shall "not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid or consent to the same."When, after obtaining an extension of time to file comment on the complaint, respondent failed to file any and ignored this Court’s subsequent show cause order, he violated Rule 12.03 of the Code of Professional Responsibility, which states that "A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda or briefs, let the period lapse without submitting the same or offering an explanation for his failure to do so." Sebastian v. Bajar28 teaches:x x x Respondent’s cavalier attitude in repeatedly ignoring the orders of the Supreme Court constitutes utter disrespect to the judicial institution. Respondent’s conduct indicates a high degree of irresponsibility. A Court’s Resolution is "not to be construed as a mere request, nor should it be complied with partially, inadequately, or selectively". Respondent’s obstinate refusal to comply with the Court’s orders "not only betrays a recalcitrant flaw in her character; it also underscores her disrespect of the Court’s lawful orders which is only too deserving of reproof.Lawyers are called upon to obey court orders and processes and respondent’s deference is underscored by the fact that willful disregard thereof will subject the lawyer not only to punishment for contempt but to disciplinary sanctions as well. In fact, graver responsibility is imposed upon a lawyer than any other to uphold the integrity of the courts and to show respect to their processes.29 (Citations omitted).The Court notes that respondent had previously been suspended from the practice of law for six months for violation of the Code of Professional Responsibility,30 he having been found to have received an acceptance fee and misled the client into believing that he had filed a case for her when he had not.31 It appears, however, that respondent has not reformed his ways. A more severe penalty this time is thus called for.WHEREFORE, respondent, Atty. Oscar P. Paguinto, is SUSPENDED for two years from the practice of law for violation of Canons 1, 8, 10, and Rule 12.03 of the Code of Professional Responsibility and the Lawyer’s Oath, effective immediately.Let copies of this Decision be furnished the Office of the Bar Confidant, to be appended to respondent’s personal record as an attorney; the Integrated Bar of the Philippines; and all courts in the country for their information and guidance.SO ORDERED.SECOND DIVISIONA.C. No. 5736 June 18, 2010RURAL BANK OF CALAPE, INC. (RBCI) BOHOL, Complainant, vs.ATTY. JAMES BENEDICT FLORIDO, Respondent.D E C I S I O NCARPIO, J.:The CaseThis is a complaint for disbarment filed by the members of the Board of Directors1 of the Rural Bank of Calape, Inc. (RBCI) Bohol against respondent Atty. James Benedict Florido (respondent) for "acts constituting grave
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coercion and threats when he, as counsel for the minority stockholders of RBCI, led his clients in physically taking over the management and operation of the bank through force, violence and intimidation."The FactsOn 18 April 2002, RBCI filed a complaint for disbarment against respondent.2 RBCI alleged that respondent violated his oath and the Code of Professional Responsibility (Code).According to RBCI, on 1 April 2002, respondent and his clients, Dr. Domeciano Nazareno, Dr. Remedios Relampagos, Dr. Manuel Relampagos, and Felix Rengel (Nazareno-Relampagos group), through force and intimidation, with the use of armed men, forcibly took over the management and the premises of RBCI. They also forcibly evicted Cirilo A. Garay (Garay), the bank manager, destroyed the bank’s vault, and installed their own staff to run the bank.In his comment, respondent denied RBCI’s allegations. Respondent explained that he acted in accordance with the authority granted upon him by the Nazareno-Relampagos group, the lawfully and validly elected Board of Directors of RBCI. Respondent said he was merely effecting a lawful and valid change of management. Respondent alleged that a termination notice was sent to Garay but he refused to comply. On 1 April 2002, to ensure a smooth transition of managerial operations, respondent and the Nazareno-Relampagos group went to the bank to ask Garay to step down. However, Garay reacted violently and grappled with the security guard’s long firearm. Respondent then directed the security guards to prevent entry into the bank premises of individuals who had no transaction with the bank. Respondent, through the orders of the Nazareno-Relampagos group, also changed the locks of the bank’s vault.Respondent added that the criminal complaint for malicious mischief filed against him by RBCI was already dismissed; while the complaint for grave coercion was ordered suspended because of the existence of a prejudicial question. Respondent said that the disbarment complaint was filed against him in retaliation for the administrative cases he filed against RBCI’s counsel and the trial court judges of Bohol.Moreover, respondent claimed that RBCI failed to present any evidence to prove their allegations. Respondent added that the affidavits attached to the complaint were never identified, affirmed, or confirmed by the affiants and that none of the documentary exhibits were originals or certified true copies.The Ruling of the IBPOn 28 September 2005, IBP Commissioner Leland R. Villadolid, Jr. (Commissioner Villadolid, Jr.) submitted his report and declared that respondent failed to live up to the exacting standards expected of him as vanguard of law and justice.3 Commissioner Villadolid, Jr. recommended the imposition on respondent of a penalty of suspension from the practice of law for six months to one year with a warning that the repetition of similar conduct in the future will warrant a more severe penalty.According to Commissioner Villadolid, Jr., respondent knew or ought to have known that his clients could not just forcibly take over the management and premises of RBCI without a valid court order. Commissioner Villadolid, Jr. noted that the right to manage and gain majority control over RBCI was one of the issues pending before the trial court in Civil Case No. 6628. Commissioner Villadolid, Jr. said that respondent had no legal basis to implement the take over of RBCI and that it was a "naked power grab without any semblance of legality whatsoever."Commissioner Villadolid, Jr. added that the administrative complaint against respondent before the IBP is independent of the dismissal and suspension of the criminal cases against respondent. Commissioner Villadolid, Jr. also noted that RBCI complied with the IBP Rules of Procedure when they filed a verified complaint and submitted duly notarized affidavits. Moreover, both RBCI and respondent agreed to dispense with the mandatory conference hearing and, instead, simultaneously submit their position papers.On 20 March 2006, the IBP Board of Governors issued Resolution No. XVII-2006-120 which declared that respondent dismally failed to live up to the exacting standards of the law profession and suspended respondent from the practice of law for one year with a warning that repetition of similar conduct will warrant a more severe penalty.4
On 5 July 2006, respondent filed a motion for reconsideration. In its 11 December 2008 Resolution, the IBP denied respondent’s motion.5
The Ruling of the CourtWe affirm the IBP Board of Governors’ resolution.The first and foremost duty of a lawyer is to maintain allegiance to the Republic of the Philippines, uphold the Constitution and obey the laws of the land.6 Likewise, it is the lawyer’s duty to promote respect for the law and legal processes and to abstain from activities aimed at defiance of the law or lessening confidence in the legal system.7
Canon 19 of the Code provides that a lawyer shall represent his client with zeal within the bounds of the law. For this reason, Rule 15.07 of the Code requires a lawyer to impress upon his client compliance with the law and principles of fairness. A lawyer must employ only fair and honest means to attain the lawful objectives of his client.8It is his duty to counsel his clients to use peaceful and lawful methods in seeking justice and refrain from doing an intentional wrong to their adversaries.9
We agree with Commissioner Villadolid, Jr.’s conclusion:Lawyers are indispensable instruments of justice and peace. Upon taking their professional oath, they become guardians of truth and the rule of law. Verily, when they appear before a tribunal, they act not merely as representatives of a party but, first and foremost, as officers of the court. Thus, their duty to protect their clients’ interests is secondary to their obligation to assist in the speedy and efficient administration of justice. While they are obliged to present every available legal remedy or defense, their fidelity to their clients must always be made within the parameters of law and ethics, never at the expense of truth, the law, and the fair administration of justice.10
A lawyer’s duty is not to his client but to the administration of justice. To that end, his client’s success is wholly subordinate. His conduct ought to and must always be scrupulously observant of the law and ethics.11 Any means, not honorable, fair and honest which is resorted to by the lawyer, even in the pursuit of his devotion to his client’s cause, is condemnable and unethical.12
WHEREFORE, we find respondent Atty. James Benedict Florido GUILTY of violating Canon 19 and Rules 1.02 and 15.07 of the Code of Professional Responsibility. Accordingly, we SUSPEND respondent from the practice of law for one year effective upon finality of this Decision.Let copies of this decision be furnished the Office of the Bar Confidant, to be appended to respondent’s personal record as attorney. Likewise, copies shall be furnished to the Integrated Bar of the Philippines and in all courts in the country for their information and guidance.SO ORDERED.
A.C. No. 4973 March 15, 2010SPOUSES MANUEL C. RAFOLS, JR. and LOLITA B. RAFOLS, Complainants, vs.ATTY. RICARDO G. BARRIOS, JR., Respondent.D E C I S I O NPER CURIAM: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 has proven them unfit to continue discharging the trust reposed in them as members of the bar. A lawyer may be disbarred or suspended for misconduct, whether in his professional or private capacity, which shows him to be wanting in moral character, honesty, probity and good demeanor or unworthy to continue as an officer of the court.– Rivera v. Corral, A.C. No. 3548, July 4, 2002, 384 SCRA 1.By its Board Resolution No. 1 dated March 7, 1998, the South Cotabato-Sarangani-General Santos City (SOCSARGEN) Chapter of the Integrated Bar of the Philippines (IBP) resolved to refer to the IBP Board of Governors in Manila, for appropriate action and investigation, the purported anomaly involving Judge Teodoro
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Dizon Jr. and Atty. Ricardo G. Barrios, Jr.1 Thus, on March 24, 1998, Atty. Joeffrey L. Montefrio, the SOCSARGEN IBP Chapter President, transmitted the referral to the Office of the Court Administrator (OCA).The matter involving Judge Dizon, Jr., which was docketed as Administrative Matter (AM) No. RTJ-98-1426 entitled Manuel C. Rafols and Lolita C. Rafols v. Judge Teodoro Dizon, Jr., RTC, General Santos City, Branch 37,2 was resolved in a per curiam decision promulgated on January 31, 2006,3 whereby the Court dismissed Judge Dizon, Jr. from the service, with forfeiture of all benefits, except accrued leave credits, and with prejudice to re-employment in the government or any of its subdivisions, instrumentalities or agencies, including government-owned and government -controlled corporations.In the same per curiam decision, the Court reiterated its resolution of October 21, 1998 for the Office of the Bar Confidant (OBC) to conduct an investigation of the actuations of Atty. Barrios, Jr. (respondent), and to render its report and recommendation.Hence, this decision.AntecedentsThe anomaly denounced by the SOCSARGEN IBP Chapter was narrated in the joint affidavit dated March 3, 1998 of Spouses Manuel C. Rafols, Jr. and Lolita B. Rafols (complainants),4 whose narrative was corroborated by the affidavit dated March 11, 1998 of Larry Sevilla;5 the affidavit dated March 16, 1998 of Allan Rafols;6 and the affidavit dated March 16, 1998 of Daisy Rafols,7 all of which were attached to the letter of the IBP Chapter President. Atty. Erlinda C. Verzosa, then Deputy Clerk of Court and Bar Confidant, referred for appropriate action a copy of the letter and affidavits to then Court Administrator Alfredo L. Benipayo.In turn, then Senior Deputy Court Administrator Reynaldo L. Suarez filed with the Court an Administrative Matter for Agenda, recommending in relation to Atty. Barrios, Jr., as follows:xxx5. The Office of the Bar Confidant be FURNISHED with a copy of the letter-note and its attachments so that it may conduct its own investigation in the matter with respect to the actuations of Atty. Ricardo Barrios, Jr.8
xxxIn the resolution dated October 21, 1998, the Court approved the recommendations,9 and directed the Office of the Bar Confidant to investigate the actuations of the respondent, and to render its report and recommendation thereon.Proceedings of the OBCOnly the respondent appeared during the hearing before the OBC. Denying the charges against him, he sought the dismissal of the complaint and re-affirmed the contents of his comment. Despite notice, the complainants did not appear before the OBC. However, the complainants and the respondent had testified during the administrative hearing involving Judge Dizon, Jr. before Court of Appeals Associate Justice Jose Sabio Jr. as the Investigating Justice. Also testifying thereat were the complainants’ witnesses, namely: Allan Rafols, Daisy Rafols and Larry Sevilla.A. Evidence for the ComplainantsThe complainants were the plaintiffs in Civil Case No. 6209 of the Regional Trial Court (RTC) in General Santos City, wherein they sought the cancellation of a deed of sale. Civil Case No. 6209 was assigned to Branch 37 of the RTC, presided by Judge Dizon, Jr. The complainants were represented by the respondent, paying to himP15,000.00 as acceptance fee.On December 22, 1997, at 9:30 a.m., the respondent visited the complainants at their residence and informed complainant Manuel that the judge handling their case wanted to talk to him. The respondent and Manuel thus went to the East Royal Hotel’s coffee shop where Judge Dizon, Jr. was already waiting. The respondent introduced Manuel to the judge, who informed Manuel that their case was pending in his sala. The judge likewise said that he would resolve the case in their favor, assuring their success up to the Court of Appeals, if they could deliverP150,000.00 to him. As he had no money at that time, Manuel told the judge that he would try to produce the amount. The judge then stated that he would wait for the money until noon of that day. Thus, Manuel left the coffee shop together with the respondent, who instructed Manuel to come up with the money before noon because the judge badly needed it. The two of them went to a lending institution, accompanied by
Allan Rafols, but Manuel was told there that only P50,000.00 could be released the next day. From the lending institution, they went to the complainants’ shop to look for Ditas Rafols, Allan’s wife, who offered to withdraw P20,000.00 from her savings account.On their way to the bank, Manuel, Allan and Ditas dropped off the respondent at the hotel for the latter to assure Judge Dizon, Jr. that the money was forthcoming. Afterwards, Ditas and Manuel withdrew P20,000.00 andP30,000.00 from their respective bank accounts, and went back to the hotel with the cash. There, they saw the judge and his driver, who beckoned to them to go towards the judge’s Nissan pick-up then parked along the highway in front of the hotel. Manuel alighted from his car and approached the judge. Manuel personally handed the money to the judge, who told Manuel after asking about the amount that it was not enough. Thereafter, Manuel entered the hotel’s coffee shop and informed the respondent that he had already handed the money to the judge.On December 24, 1997, at about 6:00 a.m., the respondent again visited the complainants. He was on board the judge’s Nissan pick-up driven by the judge’s driver. The respondent relayed to the complainants the message that the judge needed the balance of P100,000.00 in order to complete the construction of his new house in time for the reception of his daughter’s wedding. However, the complainants managed to raise only P80,000.00, which they delivered to the respondent on that same day.On January 20, 1998, Judge Dizon, Jr. called up the complainants’ residence and instructed their son to request his parents to return his call, leaving his cell phone number. When Manuel returned the call the next day, the judge instructed Manuel to see him in his office. During their meeting in his chambers, the judge demanded the balance of P30,000.00. Manuel clarified to the judge that his balance was only P20,000.00 due to the previous amount given being already P80,000.00. The judge informed him that the amount that the respondent handed was short. Saying that he badly needed the money, the judge insisted on P30,000.00, and even suggested that the complainants should borrow in order to raise that amount.On January 22, 1998, Judge Dizon, Jr. called the complainants to inquire whether the P30,000.00 was ready for pick up. After Manuel replied that he was ready with the amount, the judge asked him to wait for 20 minutes. The judge and his driver later arrived on board his Nissan pick-up. Upon instructions of the judge’s driver, the complainants followed the Nissan pick-up until somewhere inside the Doña Soledad Estate, Espina, General Santos City. There, the judge alighted and approached the complainants and shook their hands. At that point, Manuel handed P30,000.00 to the judge. The judge then told Manuel that the RTC judge in Iloilo City before whom the perpetuation of the testimony of Soledad Elevencionado-Provido was made should still testify as a witness during the trial in his sala in order for the complainants to win. The judge persuaded the complainants to give money also to that judge; otherwise, they should not blame him for the outcome of the case.The complainants were forced to give money to the judge, because they feared that the judge would be biased against them unless they gave in to his demands. But when they ultimately sensed that they were being fooled about their case, they consulted Larry Sevilla, their mediamen friend, and narrated to Sevilla all the facts and circumstances surrounding the case. They agreed that the details should be released to the media. The exposẻ was published in the Newsmaker, a local newspaper.Thereafter, the respondent and Judge Dizon, Jr. made several attempts to appease the complainants by sending gifts and offering to return a portion of the money, but the complainants declined the offers.According to the complainants, the respondent demanded P25,000.00 as his expenses in securing the testimony of Soledad Elevencionado-Provido in Iloilo City to be used as evidence in their civil case. In addition, the respondent requested the complainants to borrow P60,000.00 from the bank because he wanted to redeem his foreclosed Isuzu Elf, and because he needed to give P11,000.00 to his nephew who was due to leave for work abroad.B. Evidence for the RespondentIn his verified comment dated March 22, 2006,10 the respondent confirmed that the complainants engaged him as their counsel in Civil Case No. 6209. His version follows.On December 22, 1997, the respondent introduced Manuel to Judge Dizon, Jr. inside the East Royal Hotel’s coffee shop. The respondent stayed at a distance, because he did not want to hear their conversation. Later,
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Manuel approached the respondent and gave him P2,000.00. When the respondent asked what the money was for, Manuel replied that it was in appreciation of the former’s introducing the latter to the judge. The respondent stated that Manuel did not mention what transpired between the latter and the judge; and that the judge did not tell him (respondent) what transpired in that conversation.Two days later, the respondent again visited the complainants at their house in General Santos City on board the judge’s Nissan pick-up driven by the judge’s driver, in order to receive the P80,000.00 from the complainants. The amount was being borrowed by the judge for his swimming pool. Later on, the judge told the respondent to keepP30,000.00 as a token of their friendship. After Manuel handed the P80,000.00, the respondent and the judge’s driver headed towards Davao City, where, according to the judge’s instruction, they redeemed the judge’s wristwatch for P15,000.00 from a pawnshop. The driver brought the remaining amount of P35,000.00 to the judge in his home.On January 27, 1998, Judge Dizon, Jr. visited the respondent at the latter’s house to ask him to execute an affidavit. Declining the request at first, the respondent relented only because the judge became physically weak in his presence and was on the verge of collapsing. Nonetheless, the respondent refused to notarize the document.In that affidavit dated January 27, 1998,11 the respondent denied that Judge Dizon, Jr. asked money from the complainants; and stated that he did not see the complainants handing the money to the judge. He admitted that he was the one who had requested the judge to personally collect his unpaid attorney’s fees from the complainants with respect to their previous and terminated case; and that the judge did not ask money from the complainants in exchange for a favorable decision in their case.On January 28, 1998, the respondent returned to the complainants’ residence, but was surprised to find complainant Lolita crying aloud. She informed him that the judge was again asking an additional P30,000.00 although they had given him P30,000.00 only the week before. She divulged that the judge had told her that their case would surely lose because: (a) they had engaged a counsel who was mahinang klase; (b) the judge hearing Civil Case No. 5645 in Iloilo and the woman who had testified in Civil Case No. 6029 had not been presented; and (c) they would have to spend at least P10,000.00 for said judge’s accommodations in General Santos City.12
On January 31, 1998, Judge Dizon, Jr. went to the house of the respondent, but the latter was not home. The judge left a note addressed to the complainants, and instructed the respondent’s secretary to deliver the note to the complainants along with a gift (imported table clock).13 According to the respondent, the complainants consistently refused to accept the gift several times; it was later stolen from his house in Cebu City.On February 1, 1998, the respondent delivered the note and gift to the complainants, but the latter refused to receive it, telling him that they were no longer interested to continue with the case. At the same time, the complainants assured him that they bore no personal grudge against him, because they had a problem only with Judge Dizon, Jr.On February 24, 1998, the respondent went to the National Bureau of Investigation Regional Office, Region XI, and the Philippine National Police Regional Office, Region XI, both in Davao City, to request the investigation of the matter.14
On March 2, 1998, the respondent paid Judge Dizon, Jr. a visit upon the latter’s request. In that meeting, the respondent told the judge about the refusal of the complainants to accept the judge’s gift and about their decision not to continue with the case.15
On the next day, Judge Dizon, Jr. sent a note to the respondent to inform him that the judge had raised the amount that he had borrowed from the complainants.16 The judge requested the respondent to tell the complainants that he (Judge Dizon, Jr.) was going to return whatever he had borrowed from them. However, the complainants informed the respondent that he should tell the judge that they were no longer interested in getting back the money.The respondent made a follow-up at the NBI and PNP Regional Offices in Davao City of his request for assistance after Manuel mentioned to him that he (Manuel) knew of many armed men ready at any time to help him in his problem with the judge.
Report and Recommendation of the OBCIn its Report and Recommendation dated May 15, 2008,17 the OBC opined that the administrative case against the respondent could not be dismissed on the ground of failure to prosecute due to the complainants’ failure to appear in the scheduled hearing despite due notice.Based on the facts already established and identified, as rendered in the decision dated January 21, 2006 in Manuel Rafols and Lolita B. Rafols v. Judge Teodoro A. Dizon,18 the OBC rejected the respondent’s denial of any knowledge of the transaction between his clients and the judge.The OBC recommended:"WHEREFORE, in the light of the foregoing premises, it is respectfully recommended that respondent ATTY. RICARDO BARRIOS, Jr. be SUSPENDED from the practice of law for three (3) years with a stern warning that a repetition of similar act in the future will be dealt more severely."Ruling of the CourtWe approve and adopt the report and recommendations of the OBC, which we find to be fully and competently supported by the evidence adduced by the complainants and their witnesses, but we impose the supreme penalty of disbarment, which we believe is the proper penalty.ISection 27, Rule 138 of the Rules of Court, which governs the disbarment and suspension of attorneys, provides:Section 27. Disbarment and suspension of attorneys by the Supreme Court; grounds therefor. – A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction for a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a willful disobedience of any lawful order of a superior court, or for corruptly or willfully appearing as an attorney for a party to a case without authority to do so. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers constitute malpractice.The burden of proof in disbarment and suspension proceedings always rests on the shoulders of the complainant. The Court exercises its disciplinary power only if the complainant establishes the complaint by clearly preponderant evidence that warrants the imposition of the harsh penalty.19 As a rule, an attorney enjoys the legal presumption that he is innocent of the charges made against him until the contrary is proved. An attorney is further presumed as an officer of the Court to have performed his duties in accordance with his oath.20
Here, the complainants successfully overcame the respondent’s presumed innocence and the presumed regularity in the performance of his duties as an attorney of the complainants. The evidence against him was substantial, and was not contradicted.To begin with, the respondent’s denial of knowledge of the transaction between the complainants and Judge Dizon, Jr. was not only implausible, but also unsubstantiated. It was the respondent himself who had introduced the complainants to the judge. His act of introducing the complainants to the judge strongly implied that the respondent was aware of the illegal purpose of the judge in wanting to talk with the respondent’s clients. Thus, we unqualifiedly accept the aptness of the following evaluation made in the OBC’s Report and Recommendation, viz:xxx Being the Officer of the Court, he must have known that meeting litigants outside the court is something beyond the bounds of the rule and that it can never be justified by any reason. He must have known the purpose of Judge Dizon in requesting him to meet the complainants-litigants outside the chamber of Judge Dizon. By his overt act in arranging the meeting between Judge Dizon and complainants- litigants in the Coffee Shop of the East Royal Hotel, it is crystal clear that he must have allowed himself and consented to Judge Dizon’s desire to ask money from the complainants-litigants for a favorable decision of their case which was pending before the sala of Judge Dizon.21
Secondly, the respondent’s insistence that he did not see the complainants’ act of handing the money to the judge is unbelievable. In his comment, the respondent even admitted having himself received the P80,000.00 from the complainants, and having kept P30,000.00 of that amount pursuant to the instruction of the judge as a
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token of the friendship between him and the judge.22 The admission proved that the respondent had known all along of the illegal transaction between the judge and the complainants, and belied his feigned lack of knowledge of the delivery of the money to the judge.Thirdly, his attempt to explain that the complainants had given the money to the judge as a loan, far from softening our strong impression of the respondent’s liability, confirmed his awareness of the gross impropriety of the transaction. Being the complainants’ attorney in the civil case being heard before the judge, the respondent could not but know that for the judge to borrow money from his clients was highly irregular and outrightly unethical. If he was innocent of wrongdoing, as he claimed, he should have desisted from having any part in the transaction. Yet, he did not, which rendered his explanation unbelievable. Compounding the unworthiness of his explanation was his admission of having retained P30,000.00 of the "borrowed" money upon the judge’s instruction.And, lastly, the OBC has pointed out that the respondent’s act of requesting the NBI Regional Office in Davao City to investigate was an afterthought on his part. We agree with the OBC, for the respondent obviously acted in order to anticipate the complainants’ moves against him and the judge. To be sure, the respondent sensed that the complainants would not simply forgive and forget the mulcting they had suffered at the hands of the judge and their own attorney from the time that the complainants assured him that they were no longer interested to get back their money despite their being very angry at the judge’s greed.Overall, the respondent’ denials were worthless and unavailing in the face of the uncontradicted evidence showing that he had not only personally arranged the meeting between Manuel and Judge Dizon, Jr., but had also communicated to the complainants the judge’s illegal reason for the meeting. It is axiomatic that any denial, to be accepted as a viable defense in any proceeding, must be substantiated by clear and convincing evidence. This need derives from the nature of a denial as evidence of a negative and self-serving character, weightless in law and insufficient to overcome the testimony of credible witnesses on affirmative matters.23
IIThe practice of law is a privilege heavily burdened with conditions.24 The attorney is a vanguard of our legal system, and, as such, is expected tomaintain not only legal proficiency but also a very high standard of morality, honesty, integrity, and fair dealing in order that the people’s faith and confidence in the legal system are ensured.25 Thus, he must conduct himself, whether in dealing with his clients or with the public at large, as to be beyond reproach at all times.26 Any violation of the high moral standards of the legal profession justifies the imposition on the attorney of the appropriate penalty, including suspension and disbarment.27
Specifically, the Code of Professional Responsibility enjoins an attorney from engaging in unlawful, dishonest, or deceitful conduct.28 Corollary to this injunction is the rule that an attorney shall at all times uphold the integrity and dignity of the Legal Profession and support the activities of the Integrated Bar.291avvphi1The respondent did not measure up to the exacting standards of the Law Profession, which demanded of him as an attorney the absolute abdication of any personal advantage that conflicted in any way, directly or indirectly, with the interest of his clients. For monetary gain, he disregarded the vow to "delay no man for money or malice" and to "conduct myself as a lawyer according to the best of my knowledge and discretion, with all good fidelity as well to the courts as to my clients" that he made when he took the Lawyer’s Oath.30 He also disobeyed the explicit command to him as an attorney "to accept no compensation in connection with his client’s businessexcept from him or with his knowledge and approval."31 He conveniently ignored that the relation between him and his clients was highly fiduciary in nature and of a very delicate, exacting, and confidential character.32
Verily, the respondent was guilty of gross misconduct, which is "improper or wrong conduct, the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies a wrongful intent and not mere error of judgment."33 Any gross misconduct of an attorney in his professional or private capacity shows him unfit to manage the affairs of others, and is a ground for the imposition of the penalty of suspension or disbarment, because good moral character is an essential qualification for the admission of an attorney and for the continuance of such privilege.34
The conclusion that the respondent and the disgraced Judge Dizon, Jr. were conspirators against the former’s own clients, whom he was sworn to protect and to serve with utmost fidelity and morality, is inevitable for the Court to make in this administrative case. And, being conspirators, they both deserve the highest penalty. The disbarment of the respondent is in order, because such sanction is on par with the dismissal of Judge Dizon, Jr.WHEREFORE, Atty. Ricardo G. Barrios, Jr. is disbarred.This decision shall be entered in the records of Atty. Barrios, Jr. as a member of the Philippine Bar.Copies of the decision shall be furnished to the Bar Confidant and the Integrated Bar of the Philippines for record purposes; and to the Court Administrator, for circulation to all courts nationwide.SO ORDERED
EN BANCA.M. No. CA-05-19-P August 31, 2006ATTY. VICTORIANO S. MURING, JR., Complainant,vs.ATTY. MANUEL T. GATCHO, Court Attorney V, NELPA LOTA-CALAYAG, Executive Assistant V, and ATTY. EDNA S. PAÑA, Respondents.D E C I S I O NCARPIO, J.:The CaseOn 28 February 2003, Atty. Victoriano S. Muring, Jr. ("complainant") filed a Complaint-Affidavit1 before this Court against respondents Atty. Manuel T. Gatcho ("Atty. Gatcho"), Nelpa Lota-Calayag ("Calayag"), and Atty. Edna S. Paña ("Atty. Paña"), charging that:1. Atty. Gatcho and Calayag, complainant’s co-employees at the office of Court of Appeals Justice Bernardo P. Abesamis ("Justice Abesamis," now retired), demanded and received from Atty. Paña P450,000 to facilitate a favorable decision from Court of Appeals Justice Roberto Barrios ("Justice Barrios") in a case then handled by Atty. Paña for her employer.2. Atty. Gatcho and Calayag also demanded P150,000 from Atty. Paña and her employer in exchange for a favorable decision from Supreme Court Justice Jose A. R. Melo ("Justice Melo," now retired).3. Atty. Paña disclosed the receipt of the P450,000 to complainant and to Atty. Ma. Paz Besonaya ("Atty. Besonaya"), a court attorney from the office of Court of Appeals Justice Mariano C. Del Castillo, during a "get-together" at Cafe Breton in Malate, Manila in October 2002.4. On 29 October 2002, while complainant and Calayag were together in the office, Calayag admitted to complainant receipt of the P450,000.5. Soon after, Atty. Paña sent complainant threatening text messages, pressuring him to prevent Atty. Besonaya from informing Justice Barrios about the pay-off. Atty. Gatcho and Calayag also subjected complainant to "verbal abuse" for the same purpose.6. On 5 December 2002, complainant arrived in his office to find Atty. Paña in the visitors’ room. Atty. Paña was there to show Justice Abesamis the transcript of stenographic notes (TSN) in an adoption case where complainant appeared as counsel while employed as court attorney.7. Justice Abesamis directed complainant not to divulge to anyone what he had heard about the pay-off story, to refrain from talking to Atty. Besonaya, and to "cooperate" with Atty. Gatcho. On 19 February 2003, two days after complainant reported to Justice Abesamis the "verbal abuse" he received from Atty. Gatcho and Calayag, Justice Abesamis informed complainant that he was to be removed from the office "effective immediately."8. On 19 February 2003, complainant sought an audience with then Acting Presiding Justice of the Court of Appeals (now Supreme Court Associate Justice) Cancio Garcia ("Justice Garcia"). After hearing complainant’s story, Justice Garcia "prevailed on him to unearth/expose the pay-off in the highest interest of the court and of the entire judiciary as an institution."2
On 18 March 2003, we resolved to act on the complaint and require respondents to submit their respective Comments.
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Calayag filed her Comment on 16 June 2003, wherein she assailed complainant’s allegations as hearsay. She claimed that:The truth of the matter is that on October 31, 2002, I talked to Atty. Muring and inquired from him whether I have offended him in some way. This is due to the fact that Atty. Muring and Atty. Besonaya have been spreading rumors about me, my children, and my husband (purely personal). Atty. Muring’s reply was that it was Atty. Paña who told him about these rumors, after which Atty. Muring apologized. x x xx x x xWith respect to the allegations x x x regarding the event which transpired on December 5, 2002, the same are likewise contrary to the true events which occurred. On December 5, 2002, the staff of Justice Abesamis requested for a conference, together with Atty. Muring, to discuss matters regarding our respective official functions. The conference was mainly due to the fact that Atty. Muring has been complaining that the staff refused to help him in preparing the synopsis of a certain case.x x x x[Atty. Paña] was at the office on that date and time purposely to confront Atty. Muring regarding his claim that the former has been spreading rumors against me.3
In his Comment dated 12 June 2003, Atty. Gatcho vehemently denied complainant’s accusations. Atty. Gatcho surmised that "[complainant] may have thought that I wanted him terminated," thus:I helped [Atty. Paña] obtain a copy of an already promulgated decision from the Reporters’ Office, which gesture, I honestly believe, is not violative of any existing rule or regulation governing a government employee.x x x xIn [complainant’s] affidavit, he would not believe that I wanted a confrontation with him x x x. As the [Officer-in-Charge], it was my responsibility to make sure that everything goes well in the office. x x xx x x x[Complainant] did not want to talk about his work habit in the office. My only concern that time was how to improve our output in doing research for Justice Abesamis.4 x x xIn her Affidavit dated 13 May 2003, Atty. Paña denied altogether the statements imputed to her by complainant. Though Atty. Paña acknowledged her closeness with complainant and Atty. Besonaya, she alleged that relations among them gradually turned sour due to frequent bickering between complainant and Atty. Besonaya on the one hand, and Atty. Gatcho and Calayag on the other.5 Atty. Paña admitted that she sent the "threatening" text messages to complainant, but only because complainant "was creating intrigues among us friends."6
Complainant filed his Reply to Comments7 on 17 July 2003. To contradict Atty. Gatcho and Calayag’s insinuations that complainant’s poor performance in the office caused his removal, complainant attached a copy of his performance appraisal for the second semester of 2002, wherein he received a "very satisfactory" rating.Complainant also attached the following affidavits to his Reply:1. Annex "A," the Affidavit of Atty. Donna B. Pascual ("Atty. Pascual) dated 3 July 2003, attesting that (a) "sometime in November 2002, [Atty. Paña] called me several times requesting me to dissuade [Atty. Besonaya] from reporting to Justice Barrios of the Court of Appeals a pay-off back in the year 2000, that involved her (Atty. Paña), [Calayag], and a certain Nuel (Atty. Gatcho), regarding a case then pending with the office of Justice Barrios"; and (b) "Again, on December 6, 2002, [Atty. Paña] called me. This time, she related to me the circumstances regarding her going to the office of Justice Abesamis in the afternoon of x x x December 5, 2002. [Atty. Paña] told me that she pushed and shoved [complainant] x x x."8
2. Annex "B," the Affidavit of Atty. Besonaya dated 12 July 2003, attesting to her presence at Cafe Breton that day in October 2002 when Atty. Paña’s statements on the alleged pay-off were supposedly made. Atty. Besonaya affirmed complainant’s entire story, thus:2. In the late afternoon/early evening [sometime in October 2002], I obliged to meet [Atty. Paña]. We met at the guardhouse of the main entrance of the Court of Appeals. We then proceeded to the nearby Peking Wok Restaurant along Engracia St., Manila to take our dinner. During the said dinner, nothing much was heard from [Atty. Paña]. x x x
3. From Peking Wok Restaurant, [Atty. Paña] and I proceeded to Cafe Breton in Malate, Manila where [complainant would] follow. When [complainant] later arrived, the conversation veered towards [Atty. Gatcho and Calayag] x x x. [Atty. Paña] asked [complainant] how he was getting along with [Atty. Gatcho and Calayag]. I could not recall the exact words x x x but can recall [complainant] having said x x x to the effect that he was getting along with them well so far. Thereafter, [Atty. Paña] blurted out to [complainant], "Basta, mag-ingat ka kay [Calayag at Atty. Gatcho]. Si [Calayag], very manipulative yan. Scheming pa." [Atty. Paña] went on to tell about [Calayag’s] x x x bad habits and poor academic performance even way back in college. Both [Atty. Paña] and [Calayag were] classmates and friends even in their pre-law years x x x. Much as I wanted to discourage [Atty. Paña] from character assassinating (sic) [Calayag], but (sic) she was unstoppable.4. To our surprise, [Atty. Paña] blurted out, "Humingi nga sa akin ng P450,000 yang dalawang yan sa kaso dati ni Tanchi kay Barrios!," referring [to Atty. Gatcho and Calayag]. Upon hearing those words, I madly reacted, "Tarantado ka Edna, totoo ba yan?! Sasabihin ko yan kay Barrios. Alam mong close kay Tatay yon! [Atty. Paña] retorted, "Gusto mo tawagan mo pa si Mr. Estrella!"5. [Atty. Paña] further said that [Atty. Gatcho and Calayag] volunteered and claimed to her that they could arrange and/or facilitate a favorable decision from Justice Barrios. That, as she could not handle anymore [Atty. Gatcho and Calayag’s] demands as regards the case, she told them to call and speak with Mr. Peter Tanchi, Sr, instead. [Atty. Paña] said that both [Atty. Gatcho and Calayag] ended up calling and speaking with Mr. Estrella and Mr. Tanchi, Sr.6. I felt very upset after [Atty. Paña’s] declaration. I could not believe that [Calayag and Atty. Gatcho] were involved in a case fixing and dared to have supposedly fixed a case with a Justice whom I know personally and professionally x x x to be a man of unquestionable integrity and independence. I could not believe that the likes of [Atty. Gatcho and Calayag] would go to the extent of demanding and accepting money from a litigant, at the expense of Justice Barrios’s good name and put in disrepute the latter’s integrity, that of the Court of Appeals, and the entire judiciary as an institution.7. Still, [Atty. Paña] continued her story. She said that after the P450,000 pay-off, [Atty. Gatcho and Calayag] again demanded P150,000 from her after the Supreme Court issued a Minute Resolution dismissing the petition for review on certiorari in another case she was handling with the same Mr. Tanchi, Sr.’s company. According to Atty. Paña, [Atty. Gatcho and Calayag] represented that [Atty. Gatcho], who allegedly [could] go in and out of the Office of Justice Melo, was responsible for the favorable resolution dismissing the petition. x x x [Atty. Paña] said that after verification later, she discovered that the said case was actually resolved by Justice Panganiban [and] not Justice Melo contrary to the representation of [Atty. Gatcho and Calayag]. Allegedly, Mr. Tanchi, Sr. refused to give in to [Atty. Gatcho and Calayag’s] demand for P150,000 but offered to give P10,000 as token instead. According to [Atty. Paña], [Atty. Gatcho] through [Calayag] refused to receive the P10,000 token. [Atty. Paña] also said that the P150,000 demand of [Atty. Gatcho and Calayag] primarily caused her falling apart with Mr. Tanchi, Sr. and the rest of her employers, that eventually led to her resignation as the in-house counsel of the Tanchi Group of Companies x x x.9
x x x xAtty. Besonaya further disclosed that Atty. Paña went to her house several days after their meeting at Cafe Breton. There, Atty. Paña made the following revelations:That the P450,000 cash demanded by [Atty. Gatcho and Calayag] was delivered [to] the Office of Justice Abesamis, Centennial Building of the Court of Appeals, by Mr. Estrella accompanied by [Atty. Paña], and received thereat by both [Atty. Gatcho and Calayag] one afternoon, sometime prior to the promulgation of the decision x x x.That the decision in CA-G.R. Sp. No. 49363, entitled Credito Asiatic, Inc., et al. v. DARAB, et al. penned by Justice Barrios was promulgated on March 15, 2000, which case she said was the subject of a Petition for Review on Certiorari pending with the Supreme Court x x x.That in the afternoon of March 15, 2000, [Atty. Paña] was x x x at the Office of Justice Abesamis, waiting for the advance copy of the decision from the Division Clerk of Court to be furnished by [Atty. Gatcho and Calayag].
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That before the close of office hours that same day, [Calayag] handed to her an advance copy of the decision. [Calayag] represented that she was given the advance copy of the decision by the Division Clerk of Court, Atty. Caroline Peralta. x x xx x x xThat the amount of P10,000 which Mr. Tanchi, Sr. obliged to give to [Atty. Gatcho and Calayag] was delivered to [Calayag] one Sunday in September 2000 just across De La Salle University outside Henry’s, Taft Avenue, Manila, during the 2000 Bar Examinations, and contained in a white letter envelope. The amount, however, was refused by [Calayag for] being insufficient and way below the P150,000 demanded.Respondent [Atty. Paña] also confirmed that she was referring to the same white letter envelope the contents of which she showed me one Sunday afternoon during the September 2000 Bar Examinations, containing P1,000-peso denominations, to be the same envelope that [Calayag] declined to receive earlier that afternoon.x x x xThat x x x it was not advisable for [Atty. Paña] then to formally speak of the pay-off prior to November 7, 2000, as it [would] prejudice and hamper the ongoing negotiation between her and the Tanchi Group for compromise/settlement, the tentative date of which according to [Atty. Paña] was November 6, 2002. x x xx x x xAround 4:27 in the afternoon of [October 28, 2002], I called [Atty. Paña] through her cellular phone x x x.[Atty. Paña] spoke in a complete turnaround. She told me that she pity (sic) [Calayag] as she has been sick lately x x x. She also said that the pay-off transaction between her, [Atty. Gatcho], and [Calayag] should not be taken as an issue against anyone, after all, she is a practicing lawyer who would sometimes resort to such means to win her case.My last words to her was, "Oh, you have a sudden change of heart?! Bakit takot ka na kay [Atty. Gatcho] ngayon?" She answered back, "Paz, kasi if it would involve their (Atty. Gatcho and Calayag’s) career, they may harm you back." x x xFrom then on, I cut all communications with [Atty. Paña]. x x x10
On 26 August 2003, this Court resolved to refer the matter to Justice Edgardo F. Sundiam ("Justice Sundiam") of the Court of Appeals for investigation, report and recommendation.11
Findings of the Investigating JusticeJustice Sundiam conducted hearings on the case from 16 October 2003 to 25 May 2004. All of the parties appeared except for Atty. Paña, who was then in the United Kingdom. Atty. Paña submitted a Rejoinder/Comment ("Comment")12 executed before Consul-General Mario de Leon of the Philippine Embassy in London. In her Comment, Atty. Paña reiterated her defense that "this case is all about intrigues and malicious accusations borne out of extreme anger due to the dismissal from office by [complainant] x x x."13
On 19 April 2005, Justice Sundiam submitted his Report and Recommendation ("Report"). Justice Sundiam concluded that the evidence adduced by complainant, as supported by the testimonies of Atty. Pascual and Atty. Besonaya, depicted a more convincing story in contrast to the denials made by Atty. Gatcho and Calayag. On the other hand, Justice Sundiam found Atty. Paña to be a "victim of circumstances" because it appeared that she did not solicit "the help of [Atty.] Gatcho and Calayag and/or offered a bribe to or through them," but it was Atty. Gatcho and Calayag who represented that they could "facilitate the issuance of a favorable decision x x x."14
With both Atty. Gatcho and Calayag already resigned from the Court of Appeals, Justice Sundiam recommended that "whatever benefits [they] may be entitled arising from their previous employment x x x be forfeited and that they be forever barred from employment in any government agency."15 Atty. Paña, however, "may be absolved of any liability or may be admonished."16
The IssuesThe issues in this case are:1. Whether Atty. Gatcho and Calayag demanded and received P450,000 from Atty. Paña or her employer to facilitate a favorable decision in a case before the office of Court of Appeals Justice Roberto Barrios.
2. Whether Atty. Gatcho and Calayag demanded P150,000 from Atty. Paña or her employer, with the representation that they could facilitate a favorable decision in a case before the office of Supreme Court Justice Jose A.R. Melo.17
The Court’s RulingWe cannot sustain the findings of the Investigating Justice.Complaint not supported by substantial evidenceWe have repeatedly held that the quantum of proof necessary for a finding of guilt in administrative cases is substantial evidence, i.e., such relevant evidence as a reasonable mind may accept as adequate to support a conclusion.18 Mere allegation is not evidence and is not equivalent to proof.19
A thorough examination of the records shows that complainant’s case is founded mainly on statements uttered by Atty. Paña to complainant and to Atty. Besonaya. Complainant and Atty. Besonaya had no personal knowledge of the alleged pay-off. As noted in the Report, complainant himself admitted this lack of personal knowledge:Well to note, however, are the following admissions by [complainant] during his cross-examination (TSN, November 10, 2003): that [Atty. Paña] told him about the "pay-off" by merely mentioning "kaso ni Tanchi"; that he was not present when the alleged P450,000 was allegedly given to [Atty. Gatcho] and Calayag; that he was not present during the alleged "pay-off"; that he was not present when [Atty. Gatcho] and Calayag demanded the P150,000 from the employer of [Atty. Paña] anent the case with Justice Melo; that it was the story of [Atty. Paña] that [Atty. Gatcho] and Calayag did not receive the P150,000 because they ("Tanchi"— employer of [Atty. Paña]) "volunteered" only P10,000; that he does not know what happened to the case pending with Justice Melo; that he did not actually see [Atty. Gatcho] and Calayag receive the P450,000 x x x but the fact was admitted to him by [Calayag] and related to him by [Atty. Paña] in the presence of [Atty. Besonaya].As to whether Justice Barrios rendered a favorable decision in the case of [Atty. Paña’s] client, Tanchi, [complainant] would initially testify that he did not know, x x x later on he would state that he is confused and that there was a favorable decision as stated in the Comment of [Atty.] Paña x x x and finally, would state that he had the distinct impression that there was a favorable decision.20
Worse, complainant could not even vouch for the integrity of Atty. Paña’s information, as he was not certain if Atty. Paña personally dealt with Atty. Gatcho and Calayag in the alleged transactions:ATTY. CORDOVA:You know for a fact that [Atty. Gatcho and Calayag] indeed received the amount of P150,000 from the employer of Atty. Paña?COMPLAINANT:That was the story of [Atty.] Paña. That was the story that they did not receive P150,000. but they demandedP150,000 but only the P10,000 was volunteered by Tanchi.x x x xQ: Was Atty. Paña there when [Calayag] and Atty. Gatcho demanded this P150,000 from the employer of Atty. Paña?A: That was the story of [Atty.] Paña that they demanded P150,000 for the favorable resolution.Q: So you do not know if Atty. Paña was indeed there when these two respondents demanded this P150,000?x x x xA: That I don’t know, Your Honor.21
Complainant claims that Atty. Paña threatened him to keep silent about the pay-off, otherwise she would show Justice Abesamis the TSN of the adoption case where complainant appeared as counsel while employed as a court attorney. Complainant submits as evidence several text messages sent from Atty. Paña’s cellular phone to his.22 To our mind, the messages may be proof that complainant and Atty. Paña were in a bitter disagreement, but not necessarily under the circumstances of blackmail described by complainant. This theory of blackmail leaves one wondering why Atty. Paña eventually decided to give Justice Abesamis a copy of the TSN, when by such act, Atty. Paña instead gave complainant a reason to retaliate, thus:JUSTICE SUNDIAM:
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Now, since [you had] not yet told Justice Abesamis about the pay- off" why did she, Atty. Paña, give the TSN ahead to Justice Abesamis?x x x xCOMPLAINANT:I cannot speak for Atty. Paña. But all I can say is that, [Atty.] Paña took it against me. x x x that there was failure on my part to dissuade Atty. Besonaya. But as to her other motive in giving the TSN to Justice Abesamis, I cannot speak for her.23
It further appears that complainant himself was not convinced of the solidness of his case. Asked during cross-examination if he entertained the thought of informing the concerned incumbent justices of the pay-off, complainant’s answers revealed his own uncertainty:JUSTICE SUNDIAM:So, in short, it never occurred to you to see these two Justices. Please answer the question?COMPLAINANT:Actually Your Honor, I was afraid to do such an action.Q: You were afraid to do it?A: Yes, Your Honor.ATTY. PEREZ:Why were you afraid to do it?A: You know I might even be (pause) Justice Barrios, for one, may ask me, who is my source or what is my source. So, it would be hard on my part to start up a controversy without proof.Q: What proof do you have now if you didn’t have any proof Mr. Witness, what proof do you have now to start a whole, big, controversy?A: We are just starting so, I think in the process, I think there will be pieces of evidence to be presented that I hope would prove the allegations of my complaint.Q: So you are not yet through with your data gathering, yes or no?A: What do you mean by data gathering?Q: With your gathering of pieces of evidence?A: I will be presenting witnesses on my behalf. x x x24
Thus, upon learning of his termination, complainant "decided to seek an audience" with Justice Garcia, but only so that Justice Garcia could "somehow intervene on [his] behalf that instead [he] would be allowed to resign instead of being terminated x x x." Complainant feared the forfeiture of "the monetary value of [his] leave credits" if terminated for cause.25
Finally, complainant failed to adduce evidence that Atty. Gatcho obtained a copy of the decision in CA-G.R. SP No. 49363, on the day of its promulgation, for an unlawful reason.Testimony of Atty. Pascual and Atty. Besonayafail to bolster complainant’s allegationsThe affidavit of Atty. Pascual states that Atty. Paña sought her help to dissuade Atty. Besonaya from reporting the pay-off to Justice Barrios. Contrary to the contents of her affidavit, Atty. Pascual testified on cross-examination that Atty. Paña made no further requests from her other than to mend a rift between her and Atty. Besonaya:26
ATTY. PEREZ:And how upset was Atty. Besonaya?[ATTY.] PASCUAL:I have no idea, Sir, because it was only relayed to me by Atty. Paña when she was asking me to patch up her friendship with Atty. Besonaya.x x x xQ: And what did Atty. Paña tell you?A: She mentioned about [Atty. Besonaya] getting upset about alleged "pay-off" with Justice Barrios. She also mentioned the names of Malou and Noel which, that name Noel, I did not even know. So, I simply did not pay attention to that because it’s a – (pause) all the while I thought it was a simple quarrel among friends.
Q: So, at first you didn’t believe. "Yes" or "No"?A: If I did not believe the story?Q: What [Atty. Paña] told you?A: From the level of voice of Atty. Paña, I could sense that there was really a rift between her and Atty. Besonaya, but regarding "pay- off," I did not bother myself with that "pay-off." 27
Q: Madam Witness, you stated a while ago that Atty. Paña called you only for the purpose of asking your help in patching up her differences with Atty. Besonaya, is that correct?A: Are you referring to that particular day?ATTY. PEREZ:Yes.[ATTY.] PASCUAL:Yes, sir.Q: Now, in your affidavit, paragraph 4 "While I called [Atty. Besonaya] and informed her about [Atty. Paña’s] request, I made no effort to dissuade her." What do you mean by this?A: I made no effort to dissuade her?ATTY. PEREZ:Yes.A: I made no effort to talk to [Atty. Besonaya] regarding- (pause) dissuading her from exposing about that "pay-off."Q: Why, Madam Witness, was there a request for you to dissuade Atty. Besonaya from reporting the alleged "pay-off"?A: Request from whom, Sir.Q: From Atty. Paña or whoever?A: She did not ask me to dissuade [Atty. Besonaya].28
While admitting that she had no personal knowledge of the pay-off, Atty. Besonaya insists that she witnessed Atty. Paña hand over the envelope containing P10,000 to Calayag, which envelope Calayag refused to receive.29However, she did not hear the conversation between Atty. Paña and Calayag30 and only learned about the matter of the envelope when Atty. Paña visited her house sometime in October 2000. Again, we find that Atty. Paña’s statements serve as the sole basis for Atty. Besonaya’s allegations:ATTY. PEREZ:Now in Paragraph 11.7 of your statement, the second Paragraph of 11.7 you stated that "respondent [Atty. Paña] also confirmed that she was referring to the same white envelope the contents of which she showed me one Sunday afternoon during the September 2000 Bar Examinations, containing P1,000-peso denominations, to be the same," can you tell this Court how [Atty.] Paña showed you that envelope?BESONAYA:Because after that Bar Operations around mga past 5 o’clock [Calayag] declined to receive earlier the envelope that afternoon we proceeded to Tapa King Restaurant along Estrada corner Taft Avenue, I was waiting for a friend there and I think that time she was waiting for her brother and she joked about it, I can recall she said that "ayaw nila ikain na lang natin." And showing to me the white envelope, Sir, with the money.x x x xQ: Now when Atty. Paña showed you the white envelope as you stated, did Atty. Paña tell you anything else aside from that?A: No Sir, she only confirmed it during our second meeting in our house already, last October already.Q: What did she confirm during that second meeting?A: That the money actually was the P10,000, the P10,000 was refused to be receive (sic) by [Calayag] then, Sir, on September 2000.31
Atty. Besonaya’s narration of the events does not prove that the money in the envelope was tendered to Calayag pursuant to a pay-off arrangement. Neither does it prove that Calayag refused to accept the envelope because, as relayed by Atty. Paña to Atty. Besonaya, the amount contained therein was not acceptable to Calayag.
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Atty. Paña is administratively liableThe accusations against Atty. Gatcho andCalayag regarding a pay-off may not have been fully substantiated, but it is clear to the Court that Atty. Paña’s reckless statements and actions about an alleged "pay-off" in the judiciary sparked this entire controversy. Complainant, Atty. Pascual, and Atty. Besonaya all pointed to Atty. Paña as their source of information on the alleged "pay-off." It would be difficult to ascribe to them any evil motive in accusing Atty. Paña, as she herself admitted their close relationship based on long-term friendships. The respective testimonies of complainant and Atty. Besonaya regarding the events that transpired in Cafe Breton correspond perfectly. In the face of these evidence, Atty. Paña’s claim that complainant was merely "creating intrigues" among the parties rings hollow.If lawyers commit a misconduct that would put their moral character in serious doubt, then the court is justified in suspending or removing them from the office of attorney.32 The evidence in this case shows failure on the part of Atty. Paña to comply with the exacting standards of good moral character required of members of the Bar. Atty. Paña’s reckless statements on alleged schemes of corruption serve only to tarnish the image of the legal profession and of public office.Atty. Gatcho filed petitions for commissionas notary public while employed as court attorneyIn the course of the hearings, complainant presented copies of petitions filed by Atty. Gatcho for commission as notary public in the cities of Mandaluyong and Makati, dated 3 April 2000 and 7 February 2003, respectively. Atty. Gatcho asserts that he filed the petitions only because he was "planning to engage in private practice" upon separation from government service.33 These petitions do not form part of the records.Memorandum Circular No. 17 of the Executive Department permits employees of government offices to "engage directly in any private business, vocation or profession x x x outside office hours."34 However, we declared in anEn Banc resolution dated 1 October 1987 that —x x x [the memorandum circular] x x x [is] not applicable to officials or employees of the courts considering the express prohibition in the Rules of Court and the nature of their work which requires them to serve with the highest degree of efficiency and responsibility, in order to maintain public confidence in the Judiciary.35
Atty.Gatcho should have known that as a government lawyer, he was prohibited from engaging in notarial practice, or in any form of private legal practice for that matter. Atty. Gatcho cannot now feign ignorance or good faith, as he did not seek to exculpate himself by providing an explanation for his error. Atty. Gatcho’s filing of the petition for commission, while not an actual engagement in the practice of law, appears as a furtive attempt to evade the prohibition.Complainant engaged in unauthorized private practiceWhile complainant must have intended to assume the role of whistle-blower in filing this case, we cannot disregard complainant’s admission that he appeared in court as counsel and received P2,000 in appearance fees when he was employed as court attorney.36 Appearing in court on behalf of a party litigant falls within the scope of the phrase "practice of law." We held in Cayetano v. Monsod that —To engage in the practice of law is to perform those acts which are characteristic of the profession. Generally, to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill.37
Under the Uniform Rules on Administrative Cases in the Civil Service, engaging in the private practice of profession, when unauthorized, is classified as a light offense punishable by reprimand.38
Resignation or removal not a barto a finding of administrative liabilityThe fact that complainant and Atty. Gatcho are no longer employed at the Court of Appeals, and claim to have shifted to private practice, does not preclude the Court from making a pronouncement as to their administrative liability for acts committed by them while in government service. Cessation from office of a respondent by resignation or retirement does not warrant the dismissal of an administrative complaint filed while he or she was still in the service nor does it render the administrative case moot and academic.39 The complaint in this case was filed on 28 February 2003, before Atty. Gatcho resigned. The jurisdiction that the Court acquired at the time of
the filing of the complaint is retained until the case is finally resolved. However, while they deserve a more severe penalty, like suspension from office, they can only now be admonished since they are no longer in the service.WHEREFORE, we find Atty. Edna S. Paña guilty of gross misconduct and accordingly SUSPEND her from the practice of law for three (3) months effective upon finality of this Decision. For engaging in the unauthorized private practice of law, we ADMONISH Atty. Victoriano S. Muring, Jr., Court Attorney IV. For filing a petition for commission as notary public while employed in the Judiciary, we also ADMONISH Atty. Manuel T. Gatcho, Court Attorney V. They are STERNLY WARNED that repetition of the same or similar act in the future shall merit a more severe sanction.We DISMISS the administrative complaint against Nelpa Lota-Calayag, Executive Assistant V,for lack of merit.Let copies of this Decision be furnished the Office of the Bar Confidant, to be appended to the personal records of Paña, Muring, and Gatcho, as attorneys; the Integrated Bar of the Philippines; and the Court Administrator for circulation to all courts of the country.SO ORDERED.SECOND DIVISIONA.M. No. RTJ-02-1743 July 11, 2006ATTY. ERNESTO C. JACINTO, complainant, vs.JUDGE LYDIA Q. LAYOSA AND CLERK III CHERYL BUENAVENTURA, respondents.D E C I S I O NSANDOVAL-GUTIERREZ, J.:In a sworn letter-complaint1 dated August 7, 1999 filed with the Office of the Court Administrator (OCA), complainant Atty. Ernesto C. Jacinto charged respondents Judge Lydia Q. Layosa of the Regional Trial Court (RTC), Branch 217, Quezon City, and Cheryl Buenaventura, Clerk III, of the same court, with infidelity in the custody of public documents and/or gross neglect of duty.Complainant alleged in his letter-complaint that he is plaintiff's counsel in Civil Case No. Q-95-23426, "REYNALDO P. MARTIN versus MRS. RAQUEL U. AQUINO and HUSBAND," raffled to the RTC, Branch 217, Quezon City. It was Judge Gil P. Fernandez, Sr. (now deceased) who was then the Presiding Judge. The records of the case did not get lost.When Judge Fernandez, Sr. died, Judge Demetrio B. Macapagal, Sr. replaced him. The records of the same case did not also get lost.However, when respondent Judge Layosa was appointed Presiding Judge of the same court, the entire records of the case "disappeared" as shown by the May 142 and June 1, 19993 Orders issued by her, thus:(1) May 14, 1999 Order:The records of this case had been reported missing by the Branch Clerk of Court and despite efforts exerted to locate it, said records could not be found.Accordingly, let a conference be held on May 24, 1999 at 2:00 o'clock in the afternoon, for the purpose of reconstituting the same from available documents in counsel's possession."(2) June 1, 1999 Order:By agreement of the parties, let the conference for the reconstitution of the records in this case be reset on July 14, 1999 at 8:30 o'clock in the morning.Meanwhile, the continuation of trial set for today is hereby suspended.Complainant further alleged that both respondents are guilty as charged.On September 10, 1999,4 then Court Administrator Alfredo L. Benipayo referred the letter-complaint to respondent judge for her comment within ten days from notice. She admitted therein5 that Civil Case No. Q-95-23426 was among the pending cases turned over to her when she assumed her duties in the RTC on November 26, 1997.She, however, submitted that she cannot be held responsible for the loss of the case records because: (a) she has not been remiss in the performance of her duties and responsibilities; (b) she has been conducting the required
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inventory of cases pursuant to the Circulars of this Court, and; (c) she has always been giving instructions to her staff to take precautionary measures in safekeeping the records.Moreover, when respondent Cheryl L. Buenaventura, in charge of civil cases, verbally informed her that the records of the case are missing, she immediately directed Atty. Flosie Fanlo, then branch clerk of court, to immediately take appropriate action.On May 14, 1999, she issued an Order calling the parties' counsel for a conference on May 24, 1999 for the purpose of reconstituting the missing records.On June 1, 1999, both opposing counsel appeared. Upon respondent judge's directive, the defendant's counsel promised to submit the duplicate copies of the records in his possession.On July 14, 1999, during the scheduled hearing for the reconstitution of the missing records, only defendant's counsel appeared and submitted his copies of the records of the case.On August 10, 1999, complainant filed an "Opposition and Motion for Reconsideration" of the July 14, 1999 Order which was granted by respondent judge. At this point, there is no showing whether he submitted to the court any record in his files.Respondent judge emphasized that she did not only take immediate steps to reconstitute the missing records of the case, but she also requested the assistance of then Court Administrator Benipayo6 who, in turn, requested the National Bureau of Investigation to investigate the matter.7
On January 19, 2000, respondent Buenaventura filed her Comment8 alleging that she is in charge of civil cases. On April 12, 1999, she noticed that the records of Civil Case No. Q-95-23426 were missing. The logbook showed that the case was last heard on March 2, 1999. When the last Order was mailed on March 8, 1999, she transmitted the records to the branch clerk of court. She insisted that those records were kept inside the filing cabinet and nobody borrowed them from her. She admitted though that the lock of the filing cabinet does not work. Lastly, she alleged that the missing records have been reconstituted.On August 13, 2001, respondent judge filed with this Court a "Motion for Early Resolution"9 alleging, among others, that during the hearing of the case on May 9, 2000, both counsels failed to appear despite due notice. Hence, she issued an Order dismissing the complaint and the counterclaim.In his Report,10 then Court Administrator Presbitero J. Velasco, Jr.11 found both respondents liable for the loss of the records; and that respondent judge failed to supervise her personnel to ensure efficiency. He recommended that they be ordered to pay a fine in the amount of P5,000.00 each, with a stern warning that commission of a similar offense will be dealt with more severely, thus:EVALUATION: In the absence of any direct evidence pointing responsibility to any of the respondents relative to the loss of the records of Civil Case No. Q-95-23426, the persons responsible for their safekeeping should be held accountable and they are the Branch Clerk of Court, who is in charge of the recording, filing, and management of court records as well as the Clerk-in-charge of civil cases to whom such task was delegated by the Branch Clerk of Court. Since Atty. Flosie F. Fanlo has already transferred to another branch of the government, she is already outside of the Courts administrative jurisdiction.Respondent Cheryl Buenaventura, as the clerk-in-charge of civil cases is undoubtedly the person who has custody of the lost records and the one primarily responsible therefor. As the person in charge of the records of civil cases, respondent Buenaventura should have devised means to safeguard the records given the limited resources at her disposal as well as the defective filing cabinet. x x xAlthough no motive to conceal, destroy or otherwise profit from the loss of such records was imputed and proved against respondent Buenaventura, it cannot be denied that the records were lost while under her custody and she should be held responsible thereof.On the other hand, it is the duty of the respondent judge to closely supervise her employees. Civil Case No. 95-23426 was one of the records of pending cases turned over to her by her Clerk of Court. She admitted that she did not know what happened to said record until it was reported to her by Mrs. Buenaventura on April 13, 1999 that it was missing. Canon 3 of the Code of Judicial Conduct requires every judge to organize and supervise the court personnel to ensure the prompt and efficient dispatch of its business, and which requires further at all times the observance of high standards of public service and fidelity. (Fernandez v. Imbing, 260 SCRA 586).
Judges should not tolerate the neglect of court employees.RECOMMENDATION: Respectfully submitted to the Hon. Court our recommendation.1. that the administrative case against Atty. Flosie F. Fanlo, Ma. Cecilia A. Flores, Naomi Paden, Tonette S. Manjuco-Salamanca, Ramona Adduro, Elizabeth Sugcang, Carmen Labsan, Reynaldo Madelaria, Reynaldo Manahan, Maritoni Oning, serafin Corral and Josephine Fernandez be DISMISSED for lack of merit;2. that the administrative case against respondent judge Lydia Q. Layosa and Cheryl Buenaventura be REDOCKETED as a regular administrative matter;3. that Judge Layosa and Buenaventura be ordered to pay a fine in the amount of P5,000.00 each, with a STERN WARNING that commission of a similar act would be dealt with more severely.In our Resolution12 dated November 25, 2002, we ordered that this case be re-docketed as a regular administrative matter and required the parties to manifest, within twenty (20) days from notice, whether they are submitting the case for resolution on the basis of the pleadings and records filed.On January 15, 2003, both respondents submitted their respective Manifestations,13 with prayer that a hearing be conducted to enable them to present evidence in support of their defenses.On February 10, 2003, this Court issued a Resolution referring to OCA respondents' Manifestations for evaluation, report and recommendation.14
Upon recommendation of then Deputy Court Administrator Christopher O. Lock,15 this administrative case was referred to the Court of Appeals for investigation and report within sixty (60) days from notice.On February 10, 2004, Associate Justice Rebecca de Guia-Salvador of the Court of Appeals submitted to this Court her Report and Recommendation, partly reproduced as follows:As the personnel directly charged with the safekeeping of case records of civil cases pending in the sala, (page 55, ibid.) however, respondent Buenaventura was manifestly negligent for not taking the necessary precautionary/safety measures required by the sorry state of said filing cabinets. The conduct and behavior of every person connected with an office charged with the dispensation of justice, from the presiding judge to the lowest clerk is circumscribed with a heavy burden of responsibility (Araza vs. Garcia, 325 SCRA 1, 9-10) in order to maintain public confidence in the judiciary (Re: Report on the Judicial Audit Conducted in RTC, Branch 82, Odiongan, Romblon, 292 SCRA 1,7). Public officers are accountable for their actuations at all times and must perform their duties well. (Solid Bank Corp. v. Capoon, Jr., 289 SCRA 9, 14.Neither can respondent judge evade liability for negligence under the factual circumstances of the case. The measures she interposed as proof positive of due diligence – reporting the incident to the Court Administrator and requesting investigation thereon, (p. 25; Exhibit "3", p. 241, Rollo) directing her staff to adopt safety measures in the custody of records, (Exhibit "6", p. 238, ibid.) and requesting for repairs and/or replacement of the defective cabinets (p.5, TSN, January 23, 2004) – all appear to have been adopted only after the discovery of the loss of the case record of Civil Case No. Q-95-23426 on April 12, 1999. Quite significantly, it was not until July 22, 1999 or until the loss of the case record of Civil Case Q-97-32929 that respondent judge made the aforesaid report/request to the Court Administrator.While it is concededly the Branch Clerk of Court who has control and supervision over all court records, exhibits, documents, properties and supplies within said branch, he is nevertheless subject to the control and supervision of the Presiding Judge. (Yaranon v. Rulloda, 242 SCRA 522, 528.) A judge is tasked with the administrative supervision over his personnel and he should always see to it that his orders are promptly enforced and that case records are properly stored. (Belen v. Soriano, 240 SCRA 298, 301) It is, therefore, incumbent upon the judge to see to it that the personnel of the court perform their duties well and to call the attention of the clerk of court when they fail to do so. (Ang Kek Chen v. Andrade, 318 SCRA 11, 20-21.)RecommendationPREMISES CONSIDERED, it is recommended that both respondent judge and respondent Buenaventura be ordered to pay a fine of P5,000.00 each, with a STERN WARNING that a similar non-observance of the due care required by their positions will be dealt with more severely.We agree with Justice Salvador that both respondents are negligent; and that respondent judge failed in her duty to see to it that her personnel perform their duties well. Such conduct on their part constitutes misconduct. 16
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Misconduct is "a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by a public officer." The misconduct is grave if it involves any of the additional elements of corruption, willful intent to violate the law or to disregard established rules, which must be proved by substantial evidence. Otherwise, the misconduct is only simple.17 Records fail to indicate that those additional elements are present here.We, therefore, find both respondents guilty of simple misconduct.As the clerk in charge of civil cases, respondent Buenaventura's duties include conducting periodic docket inventory and ensuring that the records of each case are accounted for. Her insistence that the missing records were kept inside the filing cabinet and that she handled them with due care does not convince us. On the contrary, she failed to take appropriate steps and devise means to keep the records, taking into consideration the defective condition of the filing cabinet. Clearly, she was negligent.On the part of respondent judge, considering her administrative authority over her personnel, she should have directed them, especially those in charge of safekeeping the records, to be diligent in the performance of their duties and should have closely monitored the flow of her cases.Judges are charged with exercising extra care in ensuring that the records of the cases and official documents in their custody are intact. They must adopt a system of record management and organize their dockets in order to bolster the prompt and efficient dispatch of business.18 There is no justification for missing records save fortuitous events.19
With respect to the imposition of penalty, the Revised Rules of Court provides that simple misconduct is classified as a less serious charge,20 punishable by suspension from office without salary and other benefits for not less than one month nor more than three months; or a fine of more than P10,000.00, but not exceeding P20,000.00.21
It appearing that this is the first administrative offense committed by respondent judge; that she has worked in the judiciary for more than 20 years; and that no bad faith may be attributed to her, these circumstances may be considered mitigating. Hence, a fine of P5,000.00 is in order.As to the penalty imposable upon respondent Buenaventura, under the Civil Service Commission Memorandum Circular No. 19, Series of 1999 (Revised Uniform Rules on Administrative Cases in the Civil Service), simple misconduct is classified as a less grave offense,22 punishable by suspension of one month and one day to six months. Respondent is likewise a first offender, and that no taint of bad faith can be discerned from her actuations. Thus a suspension of twenty one days from office without salary is considered justified.WHEREFORE, respondent Judge Lydia Q. Layosa and respondent Cheryl Buenaventura are declared guilty of simple misconduct. Judge Layosa is FINED in the sum of Five Thousand Pesos (P5,000.00), while respondent Buenaventura is SUSPENDED from office for twenty-one days without pay. They are WARNED that a repetition of the same or similar infraction will be dealt with more severely.SO ORDERED.
A.C. No. 7055 July 31, 2006NORIEL MICHAEL J. RAMIENTAS, petitioner, vs.ATTY. JOCELYN P. REYALA, respondent.R E S O L U T I O NCHICO-NAZARIO, J.:Before Us are Manifestations1 filed by the abovequoted parties in response to Supreme Court (SC) En BancResolution2 dated 7 March 2006, wherein we resolved to require them to manifest, within ten (10) days from notice, whether they are willing to submit the case at bar for decision/resolution on the basis of the pleadings already on record.The present controversy stemmed from an Administrative Complaint3 filed by Noriel Michael J. Ramientas on 16 February 2004 before the Integrated Bar of the Philippines (IBP), Commission on Bar Discipline, seeking the disbarment of respondent Atty. Jocelyn P. Reyala. The complaint was anchored on respondent Reyala's alleged
violative acts: (1) submitting a pleading before the Court of Appeals bearing the forged signature of another lawyer; and (2) her continuous handling of a case while working in the Court of Appeals; both contrary to a) Articles 171,4 182,5 1846 and 3557 of the Revised Penal Code (RPC); b) the Code of Professional Responsibility for Lawyers; and c) conduct unbecoming of a lawyer.Hearing on the merits thereafter ensued.In its Resolution No. XVII-2005-171 passed on 17 December 2005, the IBP Board of Governors resolved to adopt the recommendation of Atty. Edmund T. Espina, Investigating Commissioner, finding respondent Reyala guilty of the abovementioned violative acts. It, however, modified the recommended penalty to be imposed from six (6) months suspension (from the practice of law) to two (2) years, with the corresponding warning that a repetition of any breach of her professional duties will be dealt with more severely.8
On 13 February 2006, the Office of the Bar Confidant, SC, received a letter dated 30 January 2006, from Atty. Rogelio A. Vinluan, Director for Bar Discipline of the IBP Commission on Bar Discipline, addressed to SC Chief Justice Artemio V. Panganiban, stating therein that:We are transmitting herewith the following documents pertaining to the above9 case pursuant to Rule 139-B:1. Notice of the Resolution;2. Records of the case consisting of Volume I 1-185 pages.In the interregnum, however, respondent Reyala submitted10 to the IBP an Urgent Motion for Reconsideration of the resolution suspending her.On 7 March 2006, the SC En Banc, acting on the letter and transmittal, resolved to require complainant Ramientas and respondent Reyala to manifest whether they are willing to submit the case for decision/resolution based on the pleadings and documents already on record.Both parties submitted their compliance thereto.In his Manifestation,11 complainant Ramientas acceded to the submission of the case for decision/resolution based on the pleadings already on record.Respondent Reyala, on the other hand, demurred12 to such submission for the meantime considering that theMotion for Reconsideration she earlier filed before the IBP remained unresolved to date. Further, she stated that when she scheduled said motion for hearing, she was informed13 by the IBP that it was precluded from acting on the aforesaid motion as it had already transmitted to this Court the whole records of the particular case together with Resolution No. XVII-2005-171, which recommended that she be suspended from the practice of law for two (2) years. Thus, she prayed that her motion for reconsideration be decided first by the IBP Board of Governors before submitting the case for decision/resolution to this Court.Prefatorily, a reading of the By-Laws of the IBP will reveal that a motion for reconsideration of its resolution or order is a prohibited pleading. § 2 of Rule III of the Rules of Procedure of the Commission on Bar Discipline of the IBP provides that:SEC. 2. Prohibited Pleadings. The following pleadings shall not be allowed, to wit:x x x xc. Motion for new trial, or for reconsideration of resolution or order.x x x xParenthetically, at first glance, Rule 139-B of the Rules of Court, the rules governing the disbarment and discipline of attorneys, shows that there is no provision regarding motions for reconsideration of resolutions of the IBP Board of Governors suspending respondent lawyers. However, worth noting is the fact that neither does it particularly proscribe the filing of such motions. §12 (b) of Rule 139-B of the Rules of Court reads:SEC. 12. Review and decision by the Board of Governors. – x x xx x x x(b) If the Board, by the vote of a majority of its total membership, determines that the respondent should be suspended from the practice of law or disbarred, it shall issue a resolution setting forth its findings and recommendations which, together with the whole record of the case, shall forthwith be transmitted to the Supreme Court for final action. (Emphasis supplied.)x x x x
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Hence, this impasse.A judicious review of our current jurisprudence will reveal that said impasse is more ostensible than real. Our pronouncement in the case of Halimao v. Villanueva,14 promulgated close to two decades after the effectivity of the IBP By-Laws,15 effectively amended the latter in so far as motions for reconsideration of IBP resolutions in disciplinary cases against lawyers are concerned.In the Halimao case, we took the occasion to articulate our stance respecting motions for reconsideration of resolutions of the IBP Board of Governors in disciplinary cases against lawyers. This Court was confronted therein with somewhat the same set of circumstance as the case at bar in that after the IBP Board of Governors transmitted to us its resolution adopting the recommendation of the investigating commissioner dismissing the disbarment complaint against respondent Villanueva for being barred by res judicata, complainant Halimao filed a motion for reconsideration. The latter opposed such motion on the ground that Rule 139-B of the Rules of Court does not provide for such a possibility of review. In resolving the issue, this Court, through Mr. Justice Mendoza, held that:Although Rule 139-B, §12 (c) makes no mention of a motion for reconsideration, nothing in its text or in its history suggests that such motion is prohibited. It may therefore be filed within 15 days from notice to a party. Indeed, the filing of such motion should be encouraged before resort is made to this Court as a matter of exhaustion of administrative remedies, to afford the agency rendering the judgment an opportunity to correct any error it may have committed through a misapprehension of facts or misappreciation of the evidence.16 (Emphasis supplied.)Clearly, the aforequoted ruling amended the IBP By-Laws in that it effectively removed a motion for reconsideration from the roster of proscribed pleadings in the level of the IBP. It must be remembered that it is well within the Court's power to amend the By-Laws of the IBP – § 77 of the same vests in this Court the power to amend, modify or repeal it, either motu proprio or upon recommendation of the IBP Board of Governors.Prescinding from the above, though the aforequoted ruling involves §12 (c)17 of Rule 139-B, nothing in the decision contradicts its application to §12 (b) of the same rule, thus, it now stands that a motion for reconsideration of IBP resolutions may be filed by an aggrieved party within the period stated.A point of clarification, however, is in order. While in the Halimao ruling we nevertheless treated the motion for reconsideration filed by Atty. Villanueva as his Petition for Review before this Court within the contemplation of Rule 139-B, § 12 (c), such action on our part was necessitated by "expediency." In the case at bar, acknowledging the raison d'être for the allowance of motions for reconsideration of resolutions of the IBP in disciplinary cases against lawyers, which is the exhaustion of administrative remedies as expressly recognized by the same Halimaoruling, the remand of the case at bar back to the IBP is in order. This course of action rests upon the presumption that when the grievance machinery is afforded a chance to pass upon the matter, it will decide the same correctly,18
Certainly, prudence dictates that the IBP be given the opportunity to correct its mistakes, if any, by way of motions for reconsideration before this Court takes cognizance of the case. This is to further insure that the grievance procedure will be allowed to duly run its course – a form of filtering process, particularly respecting matters within the competence of the IBP, before we step in.In fine, though such remand will hold back the advancement of the case, nevertheless, it bears emphasizing that it is equally important that the IBP be afforded the opportunity to set things as it should be. Observance of this basic principle is a sound practice and policy and should never be compromised at the altar of expediency.In concurrence with the above, now, therefore, BE IT RESOLVED, as it is hereby resolved, that in accordance with our ruling in Halimao v. Villanueva,19 pertinent provisions of Rule III of the Rules of Procedure of the Commission on Bar Discipline, as contained in the By-Laws of the IBP, particularly § 1 and § 2, are hereby deemed amended. Accordingly, § 1 of said rules now reads as follows:SECTION. 1. Pleadings. – The only pleadings allowed are verified complaint, verified answer, verified position papers and motion for reconsideration of a resolution. [Emphasis supplied.]And in § 2, a motion for reconsideration is, thus, removed from the purview of the class of prohibited pleadings.Further, the following guidelines shall be observed by the IBP in respect of disciplinary cases against lawyers:
1. The IBP must first afford a chance to either party to file a motion for reconsideration of the IBP resolution containing its findings and recommendations within fifteen (15) days from notice of receipt by the parties thereon;2. If a motion for reconsideration has been timely filed by an aggrieved party, the IBP must first resolve the same prior to elevating to this Court the subject resolution together with the whole record of the case;3. If no motion for reconsideration has been filed within the period provided for, the IBP is directed to forthwith transmit to this Court, for final action, the subject resolution together with the whole record of the case;4. A party desiring to appeal from the resolution of the IBP may file a petition for review before this Court within fifteen (15) days from notice of said resolution sought to be reviewed; and5. For records of cases already transmitted to this Court where there exist pending motions for reconsideration filed in due time before the IBP, the latter is directed to withdraw from this Court the subject resolutions together with the whole records of the cases, within 30 days from notice, and, thereafter, to act on said motions with reasonable dispatch.Consistent with the discussions hereinabove set forth, let the whole record of this case be immediately remanded to the IBP for the proper disposition of respondent Atty. Jocelyn P. Reyala's motion for reconsideration.SO ORDERED.
THIRD DIVISIONA.C. No. 4914 March 3, 2004SPOUSES JENELINE DONATO and MARIO DONATO, complainants, vs.ATTY. ISAIAH B. ASUNCION, SR., respondent.D E C I S I O NSANDOVAL-GUTIERREZ, J.:This is a complaint for disbarment filed by spouses Jeneline and Mario Donato against Atty. Isaiah B. Asuncion, Sr.The complaint alleges that on July 22, 1994, complainant spouses and respondent Atty. Asuncion, Sr. executed a Contract to Sell wherein the latter conveyed to the former his parcel of land with an area of 10,776 square meters (or 1.0776 hectare) situated at San Miguel, Pangasinan covered by Tax Declaration No. 34-12256. The parties agreed that the purchase price is in the amount of P187,500.00 payable by installments.On December 20, 1994, after the complainants had paid the last installment, the parties executed a Deed of Absolute Sale. This document was prepared by respondent wherein he made it appear that the consideration is only P50,000.00 in order to reduce the amount of the corresponding capital gain tax.More than two years later, or on January 10, 1997, the National Power Corporation (NAPOCOR) filed with the Regional Trial Court (RTC), Branch 46, Urdaneta, Pangasinan, an action for eminent domain, docketed as Civil Case No. U-6293. Among the parcels of land being expropriated was the lot purchased by complainants for which NAPOCOR was willing to pay P3,000,000.00.Respondent then offered his legal services to complainants and demanded 12% of whatever amount they will receive from NAPOCOR.When respondent learned that complainants intended to hire the services of another lawyer, he threatened them by filing with the RTC, Branch 45, Urdaneta, Pangasinan Civil Case No. U-6352 for reformation of instrument. In his complaint, he alleged that the contract executed by the parties is not a deed of sale but an equitable mortgage because the price of the lot (P50,000.00) stated in the contract is unusually inadequate compared to NAPOCOR’s offer of P3,000,000.00.The complaint further alleges that in filing Civil Case No. U-6352 for reformation of instrument, respondent "has dragged them to useless and expensive litigation." His act is "contrary to law and morality" which warrants his disbarment.
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In his comment on the instant administrative complaint, respondent claimed that complainants violated the rule on forum shopping. According to him, the issue raised in this administrative complaint and in complainants’ answer to his complaint in Civil Case No. U-6352 for reformation of instrument is the same, i.e., "the legality and morality" of the filing of this civil case.In a Resolution dated February 7, 1998, we referred this case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.In her Report and Recommendation dated March 3, 2003, Atty. Rebecca Villanueva-Maala, IBP Hearing Commissioner, made the following findings:"After a careful study and consideration of the facts and evidence presented, we find respondent to have committed gross misconduct. In the Civil Case No. U-6352 before the RTC, Branch 45, Urdaneta City, for Reformation of Instrument, respondent was not telling the truth when he alleged under paragraph 6 ‘That although the document is captioned Deed of Absolute Sale, the true intention of the parties is not expressed by reason of mistake on the part of the person who drafted the document, because the instrument should be equitable mortgage x x x.’ Between the complainants and the respondent, it is the latter who knows about the law, be it the difference between a Deed of Absolute Sale and an Equitable Mortgage. And because he is the lawyer and he has a law office together with his son, it is presumed that he was the one who prepared the Deed of Absolute Sale wherein the consideration indicated was only P50,000.00. We believed complainants that the Deed of Absolute Sale was prepared by respondent to lessen the amount of capital gain tax. Respondent cannot deny that he was the one who prepared the Deed of Absolute Sale as shown by his letters to Myrna Tugawin (sister of Jeneline Donato) dated 31 August 1994, 1 September 1994 and 20 December 1994. After the lapse of several years, respondent filed the complaint for Reformation of Instrument because he realized that the price paid to him by complainants was unusually inadequate in view of the fact that the same land was being purchased by NAPOCOR for P3,000,000.00."The contention of respondent that this administrative complaint is a violation of the rule on ‘forum shopping’ is without merit. There is ‘forum shopping’ when as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another (First Phil International Bank vs. CA, 252 SCRA 259), or when he institutes two or more actions or proceedings grounded on the same cause, on the gamble that one or the other court would make a favorable disposition (Chemphil Export & Improt Corp. vs. CA, 251 SCRA 257)."and recommended that complainant be suspended from the practice of law for one (1) year.In its Resolution No. XV-2003-345, the IBP Board of Governors adopted and approved the Report of Commissioner Maala with the recommendation that respondent be suspended from the practice of law for only six (6) months.We sustain the finding of the Hearing Commissioner that respondent was not telling the truth when he alleged in his complaint for reformation of instrument that the intention of the parties is not expressed therein; that what they intended to execute was a deed of equitable mortgage, not a deed of absolute sale; and that the mistake was committed by the person who drafted the instrument.We observe that the Deed of Absolute Sale was executed by the parties on December 14, 1994. However, respondent filed Civil Case No. U-6352 for reformation of instrument only on April 23, 1997, or after two years, four months and nine days. Why did it take him more than two years to realize that the previous contract did not express the true intention of the parties? The reason for this delay can be gleaned from the allegations in his complaint in Civil Case No. U-6352 for reformation of instrument. He alleged that the Deed of Absolute Sale should have been an equitable mortgage since the consideration stated therein is only P50,000.00, while the NAPOCOR has agreed to purchase the lot for P3,000,000.00. It is thus clear that it was only when he knew that the value of the lot suddenly increased by leaps and bounds that he thought of filing the complaint for reformation of instrument.At this point, it bears stressing that respondent does not dispute complainants’ contention that they paid himP187,500.00, not P50,000.00. As earlier mentioned, complainants explained that the latter price was specified in the deed of absolute sale in order to reduce the amount of the corresponding capital gain tax.
We likewise sustain the finding of Commissioner Maala that the Deed of Absolute Sale was prepared by respondent himself, as shown by his letters to Myrna Tugawin, sister of complainant Jeneline Donato. In his letter dated August 31, 1994, respondent informed Myrna that "a Deed of Sale will be executed by us" (referring to him and the complainants). In his letter of September 1, 1994, respondent asked Myrna to bring P50,000.00 on September 3, 1994 "for the execution of the Deed of Absolute Sale." And in his letter dated December 20, 1994, respondent requested Myrna to bring complainants’ "balance" on December 22, 1994. If it were true that the contract between the parties is an equitable mortgage, why did he prepare a different one – a Deed of Absolute Sale?We find respondent guilty of gross misconduct.A lawyer may be suspended or disbarred for any misconduct showing any fault or deficiency in his moral character, honesty, probity or good demeanor.1 Section 27, Rule 138 of the Revised Rules of Court mandates:"SEC. 27. Disbarment or suspension of attorneys by Supreme Court, grounds therefor. – A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, of for any violation of the oath which he is required to take before admission to practice, or for a willful disobedience appearing as an attorney for a party to a case without authority to do so. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.x x x."In SPO2 Jose B. Yap vs. Judge Aquilino A. Inopiquez, Jr.,2 we explained the concept of gross misconduct as any inexcusable, shameful or flagrant unlawful conduct on the part of a person concerned in the administration of justice which is prejudicial to the rights of the parties or to the right determination of the cause. Such conduct is generally motivated by a premeditated, obstinate or intentional purpose. The term, however, does not necessarily imply corruption or criminal intent.In committing such gross misconduct, respondent violated his solemn oath as a lawyer imposing upon himself the following duties, thus:"I, ______________, do solemnly swear that I will maintain allegiance to the Republic of the Philippines; I will support its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well to the courts as to my clients; and I impose upon myself this obligation without any mental reservation or purpose of evasion. So help me God."By filing the unfounded complaint for reformation of instrument to obtain financial gain, respondent did not only abuse and misuse the judicial processes, but likewise harassed the complainants and forced them to litigate unnecessarily. Indeed, his act was intended to advance his own interest at the expense of truth and the administration of justice, a manifestation of flaw in his character as a lawyer.The practice of law is a sacred and noble profession. It is a special privilege bestowed only upon those who are competent intellectually, academically and morally.3 We have been exacting in our demand for integrity and good moral character of members of the Bar.4 We expect them at all times to uphold the integrity and dignity of the legal profession5 and refrain from any act or omission which might lessen the trust and confidence reposed by the public in the integrity of the legal profession.6
Any gross misconduct of a lawyer in his profession or private capacity is a ground for the imposition of the penalty of suspension or disbarment because good character is an essential qualification for the admission to the practice of law and for the continuance of such privilege.7 We agree with the IBP Board of Governors that respondent should be suspended from the practice of law for six (6) months for gross misconduct.Incidentally, respondent’s defense of forum shopping is utterly bereft of merit. Suffice it to state that complainants did not institute two actions grounded on the same cause of action on the supposition that one or the other court might look with favor upon them.
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WHEREFORE, respondent ATTY. ISAIAH B. ASUNCION, SR. is found GUILTY of GROSS MISCONDUCT and is hereby SUSPENDED from the practice of law for a period of SIX (6) MONTHS effective from notice.Let a copy of this Decision be entered in the personal records of respondent as a member of the Bar; and be furnished the Bar Confidant, the IBP, and the Court Administrator for circulation to all courts in the country.SO ORDERED.
A.C. No. 439 April 12, 1961LEDESMA DE JESUS-PARAS, petitioner, vs.QUINCIANO VAILOCES, respondent.BAUTISTA ANGELO, J.:This concerns the disbarment of Quinciano Vailoces as member of the Philippine bar.It appears that as member of the bar and in his Capacity as a notary public, Vailoces, on December 14, 1950, acknowledged the execution of a document purporting to be the last will and testament of one Tarcila Visitacion de Jesus. Presented for probate before the Court of First Instance of Negros Oriental, the will was impugned by her surviving spouse and daughter. Consequently the probate court, finding that the will was a forgery, rendered decision denying probate to the will. This decision e final. On the basis of this decision a criminal action for falsification of public document was filed against Vailoces and the three attesting witnesses to the will before the Court of First Instance of Negros Oriental where after trial, they were found guilty and convicted On appeal, the Court of Appeals affirmed the decision with regard to Vailocess but modified it with record to his co-accused. As finally adjudged, Vailoces was found guilty beyond reasonable doubt of the crime of falsification of public document defined and penalized in Article 171 of the Revised Penal Code and as sentenced to suffer an indeterminate Penalty ranging from 2 years, 4 months and 1 day of prision correccional as minimum, to 8 years and 1 day of prison mayor as maximum, with the accessories of the law, finest and costs. This sentence having become final, Vailoces began serving it in the insular penitentiary. As a consequence, the offended party instituted the present disbarment proceedings.In his answer, respondent not only disputes the judgment of conviction rendered against him in the criminal case but contends that the same is based on insufficient and inconclusive evidence, the charge being merely motivated by sheer vindictiveness, malice and spite on the part of herein complainant, and that to give course to this proceeding would be tantamount to placing him in double jeopardy. He pleads that the complaint be dismissed.Under Section 25, Rule 127, of the Rules of Court, a member of the bar may be removed or suspended from his office as attorney if it appears that he has been convicted of a crime involving moral turpitude. Moral turpitude, as used in this section, includes any act deemed contrary to justice, honesty or good morals.1 Among the examples given of crimes of this nature by former Chief Justice Moran are the crime of seduction and the crime of concubinage.2 The crime of which respondent was convicted is falsification of public document, which is indeed of this nature, for the act is clearly contrary to justice, honesty and good morals. Hence, such crime involves moral turpitude. Indeed, it is well-settled that "embezzlement, forgery, robbery, and swindling are crimes which denote moral turpitude and, as a general rule, all crimes of which fraud is an element are looked on as involving moral turpitude" (58 C.J.S., 1206).It appearing that respondent has been found guilty and convicted of a crime involving moral turpitude it is clear that he rendered himself amenable to disbarment under Section 25, Rule 127, of our Rules of Court. It is futile on his part, much as we sympathize with him, to dispute now the sufficiency of his conviction, for this is a matter which we cannot now look into. That is now a closed chapter insofar as this proceeding is concerned. The only issue with which we are concerned is that he was found guilty and convicted by a final judgment of a crime involving moral turpitude. As this Court well said:The review of respondent's conviction no longer rests upon us. The judgment not only has become final but has been executed. No elaborate argument is necessary to hold the respondent unworthy of the privilege bestowed on him as a member of the bar. Suffice it to say that, by his conviction, the respondent has proved himself unfit
to protect the administration of justice. (In the Matter of Disbarment Proceedings against Narciso N. Jaramillo, Adm. Case No. 229, April 30, 1957).The plea of respondent that to disbar him now after his conviction of a crime which resulted in the deprivation of his liberty and of his office as Justice of the Peace of Bais, Negros Oriental would be tantamount to placing him in double jeopardy is untenable, for such defense can only be availed of when he is placed in the predicament of being prosecuted for the same offense, or for any attempt to commit the same or frustration thereof, or for any offense necessarily included therein, within the meaning of Section 9, Rule 113. Such is not the case here. The disbarment of an attorney does not partake of a criminal proceeding. Rather, it is intended "to protect the court and the public from the misconduct of officers of the court" (In re Montagne and Dominguez, 3 Phil. 588), and its purpose is "to protect the administration of justice by requiring that those who exercise this important function shall be competent, honorable and reliable; men in whom courts and clients may repose confidence" (In repose confidence"(In re McDougall, 3 Phil. 77).WHEREFORE, respondent is hereby removed from his office as attorney and, to this effect, our Clerk of Court is enjoined to erase his name from the roll of attorneys.
SECOND DIVISIONA.C. No. 6713 December 8, 2008ZENAIDA B. GONZALES, petitioner, vs.ATTY. NARCISO PADIERNOS, respondent.D E C I S I O NBRION, J.:Before the Court is the Complaint for Disbarment of Atty. Narciso Padiernos (respondent) filed on May 12, 2003 by Ms. Zenaida B. Gonzales (complainant) with the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP). Commissioner Milagros V. San Juan conducted the fact-finding investigation on the complaint.Commissioner San Juan submitted a Report and Recommendation1 dated September 10, 2004 to the IBP Board of Governors who approved this Report and Recommendation in a resolution dated November 4, 2004.In a letter2 dated March 14, 2005, IBP Director for Bar Discipline Rogelio A. Vinluan transmitted to the Office of Chief Justice Hilario G. Davide, Jr. (retired) a Notice of Resolution3 and the records of the case.The Factual BackgroundThe complainant alleged in her complaint for disbarment that on three (3) separate occasions the respondent notarized the following documents: (1) a Deed of Absolute Sale4 dated July 16, 1979 which disposed of her property in Jaen, Nueva Ecija in favor of Asterio, Estrella and Rodolfo, all surnamed Gonzales; (2) a Subdivision Agreement5 dated September 7, 1988 which subdivided her property among the same persons; and (3) an affidavit of Non-Tenancy6 dated March 3, 1988 which certified that her property was not tenanted. All three documents were purportedly signed and executed by complainant. All three documents carried forged signatures and falsely certified that the complainant personally appeared before the respondent and that she was "known to me (the respondent) to be the same person who executed the foregoing and acknowledged to me that the same is her own free act and voluntary deed." The complainant claimed that she never appeared before respondent on the dates the documents were notarized because she was then in the United States.The respondent filed his Answer7 on June 16, 2003. He admitted that he notarized the three documents, but denied the "unfounded and malicious imputation" that the three documents contained the complainant's forged signatures. On the false certification aspect, he countered that "with the same or identical facts obtained in the instant case, the Highest Tribunal, the Honorable Supreme Court had this to say – That it is not necessary to know the signatories personally, provided he or she or they signed in the presence of the Notary, alleging that they are the same persons who signed the names."On October 13, 2003, the respondent moved to dismiss the complaint for lack of verification and notification of the date of hearing.8
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On December 19, 2003, complainant amended her complaint.9 This time, she charged respondent with gross negligence and failure to exercise the care required by law in the performance of his duties as a notary public, resulting in the loss of her property in Jaen, Nueva Ecija, a 141,497 square meters of mango land covered by TCT NT-29578. The complainant claimed that because of the respondent’s negligent acts, title to her property was transferred to Asterio Gonzales, Estrella Gonzales and Rodolfo Gonzales. She reiterated that when the three documents disposing of her property were notarized, she was out of the country. Estrella Gonzales Mendrano, one of the vendees, was also outside the country as shown by a certification issued by the Bureau of Immigration and Deportation (BID) on September 14, 1989.10 She likewise claimed that Guadalupe Ramirez Gonzales (the widow of Rodolfo Gonzales, another vendee) executed an affidavit describing the "Deed of Absolute Sale and Subdivision Agreement" as spurious and without her husband's participation.11 The affidavit further alleged that the complainant’s signatures were forged and the respondent did not ascertain the identity of the person who came before him and posed as vendor despite the fact that a large tract of land was being ceded and transferred to the vendees.The complainant prayed for the revocation of the respondent's notarial commission and his suspension from the practice of law due to "his deplorable failure to hold the importance of the notarial act and observe [with] utmost care the basic requirements in the performance of his duties as a notary public which include the ascertainment that the person who signed the document as the very person who executed and personally appeared before him."On May 3, 2004, the complainant moved that the case be considered submitted for resolution in view of respondent's failure to answer the amended complaint.12
The IBP FindingsIn her report to the IBP Board of Governors,13 Commissioner San Juan categorically noted the respondent’s admission that he notarized the three documents in question – the Deed of Absolute Sale on July 16, 1979; the Subdivision Agreement on September 7, 1988 and the affidavit of Non-Tenancy on March 3, 1988. Commissioner San Juan also noted that the complainant’s documentary evidence supported her claim that she never executed these documents and never appeared before the respondent to acknowledge the execution of these documents. These documentary evidence consisted of the certification from the BID that complainant did not travel to the Philippines on the dates the documents were allegedly notarized;14 and the affidavit of Guadalupe Ramirez Gonzales described above.15
Commissioner San Juan found that the respondent had no participation in the preparation or knowledge of the falsity of the spurious documents, and found merit in the complainant's contention that the respondent "was negligent in the performance of his duties as a notary public." She faulted the respondent for not demanding proof of the identity of the person who claimed to be complainant Zenaida Gonzales when the documents were presented to him for notarization. She concluded that the respondent failed to exercise the diligence required of him as notary public to ensure the integrity of the presented documents. She recommended that the respondent's notarial commission be revoked and that he be suspended from the practice of law for a period of three months.The Court's RulingRule II of the 2004 Rules of Notarial Practice16 provides:SECTION 1. Acknowledgment. - "Acknowledgment" refers to an act in which an individual on a single occasion:(a) appears in person before the notary public and present an integrally complete instrument on document;(b) is attested to be personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and(c) represents to the notary public that the signature on the instrument or document was voluntarily affixed by him for the purpose stated in the instrument or document, declares that he has executed the instrument or document as his free and voluntary act and deed, and, if he acts in a particular representative capacity that he has the authority to sign in that capacity."Under the given facts, the respondent clearly failed to faithfully comply with the foregoing rules when he notarized the three documents subject of the present complaint. The respondent did not know the complainant
personally, yet he did not require proof of identity from the person who appeared before him and executed and authenticated the three documents. The IBP Report observed that had the respondent done so, "the fraudulent transfer of complainant's property could have been prevented."Through his negligence in the performance of his duty as a notary public resulting in the loss of property of an unsuspecting private citizen, the respondent eroded the complainant’s and the public’s confidence in the notarial system; he brought disrepute to the system. As we held in Pantoja Mumar vs. Flores,17 he thereby breached Canon 1 of the Code of Professional Responsibility (which requires lawyers to uphold the Constitution, obey the laws of the land and promote respect for the law and legal processes) as well as Rule 1.01 of the same Code (which prohibits lawyers from engaging in unlawful, dishonest, immoral or deceitful conduct).The respondent should be reminded that a notarial document is, on its face and by authority of law, entitled to full faith and credit. For this reason, notaries public must observe utmost care in complying with the formalities intended to ensure the integrity of the notarized document and the act or acts it embodies.18
We are not persuaded by the respondent's argument that this Court, in a similar case or one with identical facts, said "that it is not necessary to know the signatories personally provided he or she or they signed in the presence of the notary, alleging that they are the persons who signed the names." The respondent not only failed to identify the cited case; he apparently also cited it out of context. A notary public is duty bound to require the person executing a document to be personally present, and to swear before him that he is the person named in the document and is voluntarily and freely executing the act mentioned in the document.19 The notary public faithfully discharges this duty by at least verifying the identity of the person appearing before him based on the identification papers presented.For violating his duties as a lawyer and as a notary public, as well as for the grave injustice inflicted on the complainant, it is only proper that the respondent be penalized and suffer the consequences of his acts. We note in this regard that in her amended complaint, the complainant no longer sought the disbarment of respondent; she confined herself to the revocation of the respondent’s notarial commission and his suspension from the practice of law. Thus, the recommendation of the IBP is for revocation of his notarial commission and for his suspension from the practice of law for three (3) months. We approve this recommendation as a sanction commensurate with the transgression committed by the respondent as a member of the bar and as a notary public.WHEREFORE, premises considered, ATTY. NARCISO PADIERNOS of 103 Del Pilar Street, Cabanatuan City, isSUSPENDED from the practice of law for a period of THREE (3) MONTHS, and his notarial commission is herebyREVOKED.SO ORDERED.
A.C. No. 7036 June 29, 2009JUDGE LILY LYDIA A. LAQUINDANUM, Complainant, vs.ATTY. NESTOR Q. QUINTANA, Respondent.D E C I S I O NPUNO, CJ.:This administrative case against Atty. Nestor Q. Quintana (Atty. Quintana) stemmed from a letter1 addressed to the Court filed by Executive Judge Lily Lydia A. Laquindanum (Judge Laquindanum) of the Regional Trial Court of Midsayap, Cotabato requesting that proper disciplinary action be imposed on him for performing notarial functions in Midsayap, Cotabato, which is beyond the territorial jurisdiction of the commissioning court that issued his notarial commission, and for allowing his wife to do notarial acts in his absence.In her letter, Judge Laquindanum alleged that pursuant to A.M. No. 03-8-02-SC, executive judges are required to closely monitor the activities of notaries public within the territorial bounds of their jurisdiction and to see to it that notaries public shall not extend notarial functions beyond the limits of their authority. Hence, she wrote a letter2 to Atty. Quintana directing him to stop notarizing documents within the territorial jurisdiction of the Regional Trial Court of Midsayap, Cotabato (which is outside the territorial jurisdiction of the commissioning
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court that issued his notarial commission for Cotabato City and the Province of Maguindanao) since certain documents3 notarized by him had been reaching her office.However, despite such directive, respondent continuously performed notarial functions in Midsayap, Cotabato as evidenced by: (1) the Affidavit of Loss of ATM Card4 executed by Kristine C. Guro; and (2) the Affidavit of Loss of Driver’s License5 executed by Elenita D. Ballentes.Under Sec. 11, Rule III6 of the 2004 Rules on Notarial Practice, Atty. Quintana could not extend his notarial acts beyond Cotabato City and the Province of Maguindanao because Midsayap, Cotabato is not part of Cotabato City or the Province of Maguindanao. Midsayap is part of the Province of Cotabato. The City within the province of Cotabato is Kidapawan City, and not Cotabato City.Judge Laquindanum also alleged that, upon further investigation of the matter, it was discovered that it was Atty. Quintana’s wife who performed notarial acts whenever he was out of the office as attested to by the Joint Affidavit7executed by Kristine C. Guro and Elenita D. Ballentes.In a Resolution dated February 14, 2006,8 we required Atty. Quintana to comment on the letter of Judge Laquindanum.In his Response,9 Atty. Quintana alleged that he filed a petition for notarial commission before Branch 18, Regional Trial Court, Midsayap, Cotabato. However, the same was not acted upon by Judge Laquindanum for three weeks. He alleged that the reason for Judge Laquindanum’s inaction was that she questioned his affiliation with the Integrated Bar of the Philippines (IBP) Cotabato City Chapter, and required him to be a member of IBP Kidapawan City Chapter and to obtain a Certification of Payments from the latter chapter. Because of this, he opted to withdraw his petition. After he withdrew his petition, he claimed that Judge Laquindanum sent a clerk from her office to ask him to return his petition, but he did not oblige because at that time he already had a Commission for Notary Public10 issued by Executive Judge Reno E. Concha of the Regional Trial Court, Branch 14, Cotabato City.Atty. Quintana lamented that he was singled out by Judge Laquindanum, because the latter immediately issued notarial commissions to other lawyers without asking for so many requirements. However, when it came to him, Judge Laquindanum even tracked down all his pleadings; communicated with his clients; and disseminated information through letters, pronouncements, and directives to court clerks and other lawyers to humiliate him and be ostracized by fellow lawyers.Atty. Quintana argued that he subscribed documents in his office at Midsayap, Cotabato; and Midsayap is part of the Province of Cotabato. He contended that he did not violate any provision of the 2004 Rules on Notarial Practice, because he was equipped with a notarial commission. He maintained that he did not act outside the province of Cotabato since Midsayap, Cotabato, where he practices his legal profession and subscribes documents, is part of the province of Cotabato. He claimed that as a lawyer of good moral standing, he could practice his legal profession in the entire Philippines.Atty. Quintana further argued that Judge Laquindanum had no authority to issue such directive, because only Executive Judge Reno E. Concha, who issued his notarial commission, and the Supreme Court could prohibit him from notarizing in the Province of Cotabato.In a Resolution dated March 21, 2006,11 we referred this case to the Office of the Bar Confidant (OBC) for investigation, report and recommendation.In the February 28, 2007 Hearing12 before the OBC presided by Atty. Ma. Crisitina B. Layusa (Hearing Officer), Judge Laquindanum presented a Deed of Donation,13 which was notarized by Atty. Quintana in 2004.14 Honorata Rosil appears as one of the signatories of the document as the donor’s wife. However, Honorata Rosil died on March 12, 2003, as shown by the Certificate of Death15 issued by the Civil Registrar of Ibohon, Cotabato.Judge Laquindanum testified that Atty. Quintana continued to notarize documents in the years 2006 to 2007 despite the fact that his commission as notary public for and in the Province of Maguindanao and Cotabato City had already expired on December 31, 2005, and he had not renewed the same.16 To support her claim, Judge Laquindanum presented the following: (1) Affidavit of Loss [of] Title17 executed by Betty G. Granada with subscription dated April 8, 2006 at Cotabato City; (2) Certificate of Candidacy18 of Mr. Elias Diosanta Arabis with subscription dated July 18, 2006; (3) Affidavit of Loss [of] Driver’s License19 executed by Anecito C. Bernabe with
subscription dated February 20, 2007 at Midsayap, Cotabato; and (4) Affidavit of Loss20 executed by Santos V. Magbanua with subscription dated February 22, 2007 at Midsayap, Cotabato.For his part, Atty. Quintana admitted that all the signatures appearing in the documents marked as exhibits of Judge Laquindanum were his except for the following: (1) Affidavit of Loss of ATM Card21 executed by Kristine C. Guro; and (2) Affidavit of Loss of Driver’s License22 executed by Elenita D. Ballentes; and (3) Affidavit of Loss23executed by Santos V. Magbanua. He explained that those documents were signed by his wife and were the result of an entrapment operation of Judge Laquindanum: to let somebody bring and have them notarized by his wife, when they knew that his wife is not a lawyer. He also denied the he authorized his wife to notarize documents. According to him, he slapped his wife and told her to stop doing it as it would ruin his profession.Atty. Quintana also claimed that Judge Laquindanum did not act on his petition, because he did not comply with her requirements for him to transfer his membership to the Kidapawan Chapter, wherein her sister, Atty. Aglepa, is the IBP President.On the one hand, Judge Laquindanum explained that she was only performing her responsibility and had nothing against Atty. Quintana. The reason why she did not act on his petition was that he had not paid his IBP dues,24which is a requirement before a notarial commission may be granted. She told his wife to secure a certification of payment from the IBP, but she did not return.This was denied by Atty. Quintana, who claimed that he enclosed in his Response the certification of good standing and payments of his IBP dues. However, when the same was examined, there were no documents attached thereto. Due to oversight, Atty. Quintana prayed that he be given time to send them later which was granted by the Hearing Officer.Finally, Atty. Quintana asked for forgiveness for what he had done and promised not to repeat the same. He also asked that he be given another chance and not be divested of his privilege to notarize, as it was the only bread and butter of his family.On March 5, 2007, Atty. Quintana submitted to the OBC the documents25 issued by the IBP Cotabato City Chapter to prove that he had paid his IBP dues.In a Manifestation26 dated March 9, 2007, Judge Laquindanum submitted a Certification27 and its entries show that Atty. Quintana paid his IBP dues for the year 2005 only on January 9, 2006 per Official Receipt (O.R.) No. 610381. Likewise, the arrears of his IBP dues for the years 1993, 1995, 1996, and 1998 to 2003 were also paid only on January 9, 2006 per O.R. No. 610387. Hence, when he filed his petition for notarial commission in 2004, he had not yet completely paid his IBP dues.In its Report and Recommendation,28 the OBC recommended that Atty. Quintana be disqualified from being appointed as a notary public for two (2) years; and that if his notarial commission still exists, the same should be revoked for two (2) years. The OBC found the defenses and arguments raised by Atty. Quintana to be without merit, viz:Apparently, respondent has extended his notarial acts in Midsayap and Kabacan, Cotabato, which is already outside his territorial jurisdiction to perform as Notary Public.Section 11 of the 2004 Rules on Notarial Practice provides, thus:"Jurisdiction and Term – A person commissioned as notary public may perform notarial acts in any place within the territorial jurisdiction of the commissioning court for a period of two (2) years commencing the first day of January of the year in which the commissioning court is made, unless earlier revoked [or] the notary public has resigned under these Rules and the Rules of Court.Under the rule[,] respondent may perform his notarial acts within the territorial jurisdiction of the commissioning Executive Judge Concha, which is in Cotabato City and the [P]rovince of Maguindanao only. But definitely he cannot extend his commission as notary public in Midsayap or Kabacan and in any place of the province of Cotabato as he is not commissioned thereat to do such act. Midsayap and Kabacan are not part of either Cotabato City or [P]rovince of Maguindanao but part of the province of North Cotabato. Thus, the claim of respondent that he can exercise his notarial commission in Midsayap, Cotabato because Cotabato City is part of the province of Cotabato is absolutely devoid of merit.xxxx
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Further, evidence on record also shows that there are several documents which the respondent’s wife has herself notarized. Respondent justifies that he cannot be blamed for the act of his wife as he did not authorize the latter to notarize documents in his absence. According to him[,] he even scolded and told his wife not to do it anymore as it would affect his profession.In the case of Lingan v. Calubaquib et al., Adm. Case No. 5377, June 15, 2006 the Court held, thus:"A notary public is personally accountable for all entries in his notarial register; He cannot relieve himself of this responsibility by passing the buck to their (sic) secretaries"A person who is commissioned as a notary public takes full responsibility for all the entries in his notarial register. Respondent cannot take refuge claiming that it was his wife’s act and that he did not authorize his wife to notarize documents. He is personally accountable for the activities in his office as well as the acts of his personnel including his wife, who acts as his secretary.Likewise, evidence reveals that respondent notarized in 2004 a Deed of Donation (Rollo, p. 79) wherein, (sic) Honorata Rosel (Honorata Rosil) one of the affiants therein, was already dead at the time of notarization as shown in a Certificate of Death (Rollo, p.80) issued by the Civil Registrar General of Libungan, Cotabato.Sec. 2, (b), Rule IV of the 2004 Rules on Notarial Practice provides, thus[:]"A person shall not perform a notarial act if the person involved as signatory to the instrument or document (1) is not in the notary’s presence personally at the time of the notarization; and (2) is not personally known to the notary public through competent evidence of identity as defined by these Rules."Clearly, in notarizing a Deed of Donation without even determining the presence or qualifications of affiants therein, respondent only shows his gross negligence and ignorance of the provisions of the 2004 Rules on Notarial Practice.xxxxFurthermore, respondent claims that he, being a lawyer in good standing, has the right to practice his profession including notarial acts in the entire Philippines. This statement is barren of merit.While it is true that lawyers in good standing are allowed to engage in the practice of law in the Philippines.(sic) However, not every lawyer even in good standing can perform notarial functions without having been commissioned as notary public as specifically provided for under the 2004 Rules on Notarial Practice. He must have submitted himself to the commissioning court by filing his petition for issuance of his notarial (sic) Notarial Practice. The commissioning court may or may not grant the said petition if in his sound discretion the petitioner does not meet the required qualifications for [a] Notary Public. Since respondent herein did not submit himself to the procedural rules for the issuance of the notarial commission, he has no reason at all to claim that he can perform notarial act[s] in the entire country for lack of authority to do so.Likewise, contrary to the belief of respondent, complainant being the commissioning court in Midsayap, Cotabato has the authority under Rule XI of the 2004 Rules on Notarial Practice to monitor the duties and responsibilities including liabilities, if any, of a notary public commissioned or those performing notarial acts without authority in her territorial jurisdiction.29
xxxxWe adopt the findings of the OBC. However, we find the penalty of suspension from the practice of law for six (6) months and revocation and suspension of Atty. Quintana's notarial commission for two (2) years more appropriate considering the gravity and number of his offenses.After a careful review of the records and evidence, there is no doubt that Atty. Quintana violated the 2004 Rules on Notarial Practice and the Code of Professional Responsibility when he committed the following acts: (1) he notarized documents outside the area of his commission as a notary public; (2) he performed notarial acts with an expired commission; (3) he let his wife notarize documents in his absence; and (4) he notarized a document where one of the signatories therein was already dead at that time.The act of notarizing documents outside one’s area of commission is not to be taken lightly. Aside from being a violation of Sec. 11 of the 2004 Rules on Notarial Practice, it also partakes of malpractice of law and falsification.30Notarizing documents with an expired commission is a violation of the lawyer’s oath to obey the laws, more specifically, the 2004 Rules on Notarial Practice. Since the public is deceived into believing that he has
been duly commissioned, it also amounts to indulging in deliberate falsehood, which the lawyer's oath proscribes.31Notarizing documents without the presence of the signatory to the document is a violation of Sec. 2(b)(1), Rule IV of the 2004 Rules on Notarial Practice,32 Rule 1.01 of the Code of Professional Responsibility, and the lawyer’s oath which unconditionally requires lawyers not to do or declare any falsehood. Finally, Atty. Quintana is personally accountable for the documents that he admitted were signed by his wife. He cannot relieve himself of liability by passing the blame to his wife. He is, thus, guilty of violating Canon 9 of the Code of Professional Responsibility, which requires lawyers not to directly or indirectly assist in the unauthorized practice of law.All told, Atty. Quintana fell miserably short of his obligation under Canon 7 of the Code of Professional Responsibility, which directs every lawyer to uphold at all times the integrity and dignity of the legal profession.That Atty. Quintana relies on his notarial commission as the sole source of income for his family will not serve to lessen the penalty that should be imposed on him. On the contrary, we feel that he should be reminded that a notarial commission should not be treated as a money-making venture. It is a privilege granted only to those who are qualified to perform duties imbued with public interest. As we have declared on several occasions, notarization is not an empty, meaningless, routinary act. It is invested with substantive public interest, such that only those who are qualified or authorized may act as notaries public. The protection of that interest necessarily requires that those not qualified or authorized to act must be prevented from imposing upon the public, the courts, and the administrative offices in general. It must be underscored that notarization by a notary public converts a private document into a public document, making that document admissible in evidence without further proof of the authenticity thereof.33
IN VIEW WHEREOF, the notarial commission of Atty. Nestor Q. Quintana, if still existing, is hereby REVOKED, and he is DISQUALIFIED from being commissioned as notary public for a period of two (2) years. He is also SUSPENDED from the practice of law for six (6) months effective immediately, with a WARNING that the repetition of a similar violation will be dealt with even more severely. He is DIRECTED to report the date of his receipt of this Decision to enable this Court to determine when his suspension shall take effect.1avvphi1Let a copy of this decision be entered in the personal records of respondent as a member of the Bar, and copies furnished the Bar Confidant, the Integrated Bar of the Philippines, and the Court Administrator for circulation to all courts in the country.SO ORDERED.FIRST DIVISION AVELINO O. ANGELES,LAURO O. ANGELES,MARIA O. ANGELES,ROSALINA O. ANGELES, and CONNIE M. ANGELES, Complainants, - versus - ATTY. AMADO O. IBAÑEZ, Respondent.
A.C. No. 7860 Present: PUNO, C.J., Chairperson,CARPIO,CORONA,AZCUNA, andLEONARDO-DE CASTRO, JJ. Promulgated:January 15, 2009
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x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x D E C I S I O N CARPIO, J.: The Case This is a complaint filed by Avelino O. Angeles, Maria O. Angeles, Lauro O. Angeles, Rosalina O. Angeles, and Connie M. Angeles in representation of the deceased Loreto Angeles (collectively, complainants) against Atty. Amado O. Ibañez (respondent) for disbarment for notarizing the “Extrajudicial Partition with Absolute Sale” without a notarial commission and in the absence of the affiants. The Facts The facts of CBD Case No. 06-1830, as stated in the Report and Recommendation of the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP), read as follows: II. Statement of the Complaint Complainants ... are residents of Highway, Sapang I, Ternate, Cavite. Respondent Atty. Amado Ibañez is a practicing lawyer who holds office at 2101 Carolina (now Madre Ignacia) St., Malate, Manila. The lengthy and confusing narrative of what appears to be a bitter land dispute notwithstanding, it can be gleaned from the Complaint and Position Paper, and the personal clarification by the complainants themselves after questioning by the undersigned during the Mandatory Conference, that the present administrative case is limited to an “Extrajudicial Partition with Absolute Sale” which respondent Atty. Amado Ibañez allegedly notarized in the City of Manila on 18 February 1979, and entered in his Notarial Book as Doc. No. 735, p. 157 and Book No. II, Series of 1979. The complainants denied that they executed the said document or that they ever appeared before respondent Atty. Ibañez for this purpose. They alleged that respondent Atty. Ibañez did not even have the authority to notarize the “Extrajudicial Partition with Absolute Sale” as he did not have a commission as a notary public at that time. The complainants alleged that the respondent and his relatives are presently using the said document in judicial proceedings pending before the Regional Trial Court of Naic, Cavite to their damage and prejudice. The complainants contend that respondent Atty. Ibañez’s act of notarizing the “Extrajudicial Partition with Absolute Sale” without requiring the presence of the parties thereto, and despite his alleged lack of a notarial commission, constitutes professional misconduct for which reason he should be disbarred. In support of their allegations, the complainants attached to their Complaint and Position Paper the following documents:1. Tax Declaration Nos. 20-004-00052, 1356, 1809 in the name of Barselisa Angeles, and Tax Declarations 198, 283, 403 and 1544, in the name of Juan Angeles. 2. Certification dated 24 March 2006 issued by the Office of the Clerk of Court of the Regional Trial Court of Manila stating that the Master List of Notaries Public shows that Atty. Amado O. Ibañez was not appointed as such for and in the City of Manila for the year 1976-1977.
3. Certification dated 28 April 2006 issued by the National Archives stating that there is no notarial record on file with the said office of AmadoIbañez, a notary public for and within the City of Manila, and it has no copy on file of an affidavit allegedly executed by Gabriel, Estebana, Eutiquio, Gloria, Leocadio, Jovita, Samonte, and Renato, all surnamed Angeles, ratified sometime in 1977 by the said notary public and acknowledged as Doc. No. 202, Page No. 42, Book No. 1, Series of 1977.4. Certification dated 11 April 2006 issued by the National Archives stating that there is no notarial record on file with the said office of AmadoIbañez, a notary public for and within the City of Manila, and it has no copy on file of a partition w/renunciation [sic] and affidavit allegedly executed by and among Gabriela, Estebana, Eutiquio, Gloria, Leocadio, Jovita, Samonte and Renato, all surnamed Angeles, ratified sometime in 1977 by the said notary public and acknowledged as Doc. No. 201, Page No. 41, Series of 1977.5. Two (2) versions of a “Partihang Labas sa Hukuman at Ganap na Bilihan” dated 28 March 1978, executed by and between Gloria Angeles,Leocadio Angeles and Gabriela, Estebana, Eutiquio, Jovita, Samonte and Renato, all surnamed Torres.6. Flow chart showing the history of Tax Declaration No. 403, from 1948 to 1974.7. Application for Free Patent over Cadastral Lot No. 460-C of the Ternate Cadastral Sketching (CADS-617-D), SWO-04-000598 and Cadastral Lot No. 460-B, executed by Atty. Amado O. Ibañez.8. Certification dated 24 March 2006 issued by the Office of the Clerk of Court of the Regional Trial Court of Manila stating that the Master List of Notaries Public shows that Atty. Amado O. Ibañez was not appointed as such for and in the year 1978-1979.9. “Extrajudicial Partition with Absolute Sale” (with various marginal notes made by the complainants) notarized by Atty. Amado Ibañez in the City of Manila on 18 February 1979, and entered in his Notarial Book as Doc. No. 735, p. 147 and Book No. II, Series of 1979. 10. Real Estate Mortgage executed by Flora Olano in favor of the Rural Bank of Naic, Inc., in the amount of Php350.00, covering property located in Zapang, Ternate, Cavite and described in Tax Declaration No. 1657-1658.11. Certification dated 12 January 2007 issued by the Office of the Clerk of Court of the Regional Trial Court of Trece Martires City stating that Atty. Amado O. Ibañez was not duly commissioned as a notaryt [sic] public for and within the Province of Cavite in the year 1979, and that it has no copy in its records of an “Extrajudicial Partition with Absolute Sale” allegedly notarized by Atty. Amado Ibañez on 18 February 1979 and entered in his Notarial Book as Doc. No. 735, p. 147 and Book No. II. Series of 1979.III. Respondents’ Position/Defense In his Motion to Dismiss and Position Paper, respondent Atty. Ibañez contended that the complainants are guilty of forum-shopping inasmuch as they had previously filed the same complaint, docketed as Administrative Case No. 3581, which was eventually dismissed by then IBP CBD Comm. Victor Fernandez. The respondent admitted that he notarized the “Extrajudicial Partition with Absolute Sale” but clarified that he did so as Notary Public of theProvince of Cavite, with a notarial commission issued by the Regional Trial Court of Cavite, Branch 1, Trece Martires City. He explained that the designation of “Manila” as the place of execution of the said document was a mistake of his former legal secretary, who failed to correct the same through oversight. Respondent Atty. Ibañez alleged that he notarized the “Extrajudicial Partition with Absolute Sale” in his capacity as the official Notary Public of Puerto Azul, and the same was actually prepared and typewritten by complainant Rosalina Angeles for a consideration of Php20,000.00 as evidenced by a photocopy of Commercial Bank & Trust Co. Cashier’s Check dated 31 January 1979 on file with the Puerto Azul office, as well as an “Exclusive Authority” attached to the said document. The respondent also alleged that complainant Rosalina Angeles was at that time employed as a typist at Puerto Azul and that she enjoyed the trust and confidence of the Puerto Azul management.
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The respondent stated that the land subject of the sale was surveyed for Mrs. Trinidad Diaz-Enriquez by the late Angel Salvacion, the official surveyor of Puerto Azul, and was submitted to the Bureau of Lands for verification and approval and was approved on 14 February 1985 as CCN No. 04-000038-D. Respondent Atty. Ibañez alleged that the property is presently in the actual possession of Puerto Azul, with former Sapang IBgy. Captain Johnny Andra as tenant. The respondent alleged that Puerto Azul’s ownership of the property is anchored on the “Extrajudicial Partition with Absolute Sale,” which is in turn the subject of a case, CA GR SP No. 2006-1668, which is presently pending in the Court of Appeals. Respondent Atty. Ibañez alleged that a defect in the notarization of a document of sale does not invalidate the transaction, and he stated that his failure to require the presence of the parties to the “Extrajudicial Partition with Absolute Sale” is wholly justified because of the assurance of complainant Rosalina Angeles that the signatures appearing in the said document were indeed those of her co-heirs. The respondent also alleged that almost all the complainants submitted their residence certificates, the numbers of which were recorded in the acknowledgement portion of the document. The respondent denied that he had committed any crime when he notarized the “Extrajudicial Partition with Absolute Sale” because the offenses in the Revised Penal Code are “mala in se” where the intention to commit the crime is required, which is lacking in his case. The respondent added that there is regularity in the performance of his duty as the official notary public of Puerto Azul. The respondent pointed out that nearly twenty eight (28) years have lapsed without anyone questioning not only the sale of the said property, but Puerto Azul’s long possession of the same as well. He alleged that the complainants are now denying the sale because they want to make it appear that they have land within or adjoining a quarry site which they have invaded and taken over. He reiterated that the defect in his notarization of the sale document notwithstanding, the sale remains valid. By way of his defense, respondent Atty. Ibañez submitted the following documents:1. Photocopy of a Supreme Court Resolution dated 31 July 2000 denying the complainants’ motion for reconsideration in Administrative Case No. 3581, entitled “Rosalina Angeles, et al. vs. Atty. Amado Ibañez”2. Photocopy of IBP Board of Governors Resolution dated 27 June 1999, adopting and approving the Report and Recommendation of Comm. Victor Fernandez dismissing Administrative Case No. 3581, entitled “Rosalina Angeles, et al. vs. Atty. Amado Ibañez”3. Photocopy of a Counter-Affidavit filed by Atty. Amado Ibañez in OMB-1-C 06-0368-C/OMB-L C 06-0272-C, entitled “Mario O. Angeles vs. Sony Peji, et al.,”4. “Extrajudicial Partition with Absolute Sale” notarized by Atty. Amado Ibañez in the City of Manila on 18 February 1979, and entered in hisNotarial Book as Doc. No. 735, p. 147 and Book No. II, Series of 1979, with attached “Exclusive Authority” executed by Maria Angeles, Flora Angeles, Lauro Angeles and Avelino Angeles in favor of Rosalina Angeles.[1] The IBP’s Report and Recommendation In a Report[2] dated 21 January 2008, IBP Commissioner for Bar Discipline Rico A. Limpingco (Commissioner Limpingco) found that respondent notarized the “Extrajudicial Partition with Absolute Sale” in the absence of affiants and without a notarialcommission. Thus: As stated earlier, the present administrative complaint may seem at first to be one for falsification, land grabbing, etc., but a closer examination of the complainants’ allegations coupled with their own verbal confirmation during the Mandatory Conference, shows that the complainants are actually accusing respondent Atty. Amado Ibañez of notarizing an “Extrajudicial Partition with Absolute Sale” in the City of Manila on 18
February 1979 (entered in his Notarial Book as Doc. No. 735, p. 147 and Book No. II, Series of 1979) without requiring the presence of the parties thereto, and further, for notarizing the said document even if he did not have a notarial commission at that time. The respondent contends that the complainants have previously filed the same administrative complaint against him, docketed as Administrative Case No. 3581, and that the same was eventually dismissed by the Supreme Court. He alleged that as in this prior complaint, the present case must likewise be dismissed for forum shopping. It appears, however, that Administrative Case No. 3581 is entirely different and distinct from the present complaint. A reading of the photocopy of IBP Board of Governors Resolution dated 27 June 1999, adopting and approving the attached Report and Recommendation of Comm. Victor Fernandez dismissing Administrative Case No. 3581, entitled “Rosalina Angeles, et al. vs. Atty. Amado Ibañez” (as attached by the respondent himself in his Motion to Dismiss) shows that this earlier complaint pertains to herein respondent’s alleged “land-grabbing” of two (2) parcels of land in Bgy. Zapang, Ternate, Cavite. As stated in the report authored by then Commissioner Victor Fernandez, the earlier administrative case relates to the sale of the said property to the Sps. Danilo Andra and Angela Olano, and its subsequent sale to the respondent, Atty. AmadoIbañez, who for his part later applied for, and was granted, free patent titles over the same. Branding the transaction as land-grabbing, the complainants filed an action in court to recover possession and annul the titles but the case was eventually dismissed by the Supreme Court for lack of merit. The complainants then filed the same complaint with the Office of the Ombudsman, the Dept. of Justice, the Bureau of Internal Revenue and the Supreme Court, which eventually referred the matter to the IBP. In his report, then-Commissioner Victor Fernandez declared that the complainants were engaged in forum-shopping, reasoning that unsuccessful in their effort to obtain the result they desire from the courts, they would attempt to refile their dismissed action under the guise of an administrative case. The present administrative complaint may be in one way or another related to the alleged land-grabbing which was the subject of Administrative Case No. 3581, but it pertains to an altogether different matter. In the present complaint, respondent Atty. Ibañez is not being accused of land-grabbing or falsification, but rather, for misconduct in notarizing a document. We would point out that respondent Atty. Amado Ibañez admitted that he did not require the presence of the parties to the document because he was assured as to the authenticity of their signatures. We would also stress that the respondent never denied that he notarized the “Extrajudicial Partition with Absolute Sale,” but claimed that he did so not in Manila as stated in document, but in Cavite where he claimed to be a commissioned notary public; he attributed the mistake to his legal secretary, and he insisted that the sale remained valid despite the defects in notarization. That is not the point, however. The validity of the transaction covered by the “Extrajudicial Partition with Absolute Sale” is not at issue in this administrative case for that is a matter for the courts to adjudicate, if they have not already done so. As it is, no less than the respondent himself categorically admitted that he notarized the “Extrajudicial Partition with AbsoluteSale” in the absence of the parties thereto. To make matters worse, the certifications submitted by the complainants clearly indicate that respondent Atty. Amado Ibañez did not have any notarial commission whether for Manila or Cavite, in 18 February 1979 when he notarized the subject document. The respondent, for his part, has been completely unable to proffer any kind of proof of his claim that he had a commission as a notary public for and in the Province of Cavite in 1979, or of his submission of notarial reports and notarialregister during the said period. x x x While the case of respondent Atty. Amado Ibañez is not perfectly identical to the facts and circumstances obtaining in these cases, his act of notarizing a document without the necessary commission is nonetheless clear and undeniable. Guided by the foregoing rulings of the Supreme Courtvis-a-vis the facts in the present complaint, it is therefore respectfully recommended that respondent Atty. Amado Ibañez:
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1. Be barred from being commissioned as a notary public for a period of two (2) years, and in the event that he is presently commissioned as a notary public, that his commission be immediately revoked and suspended for such period; and2. Be suspended from the practice of law for a period of one (1) year. Respectfully submitted.[3] (Emphasis added) In a Resolution[4] dated 6 February 2008, the IBP Board of Governors adopted and approved the Report and Recommendation of Commissioner Limpingco. The Office of the Bar Confidant received the notice of the Resolution and the records of the case on 10 April 2008. Respondent filed a supplemental position paper on 28 May 2008 before the IBP Board of Governors. In a Resolution dated29 May 2008, the IBP Board of Governors referred respondent’s submission to the Office of the Bar Confidant. Respondent attached photocopies of the following: respondent’s Petition for Commission as Notary Public for and within the Province ofCavite filed before the said Court on 16 February 1978; respondent’s commission as Notary Public for the province of Cavite for the term 1978 until 1979 issued by Executive Judge Pablo D. Suarez on 21 February 1978; and respondent’s oath of office as notary public dated 21 February 1978. The Ruling of the Court We sustain the findings of the IBP and adopt its recommendations with modification. Respondent violated his oath as a lawyer and the Code of Professional Responsibility when he notarized the “Extrajudicial Partition with Absolute Sale” in the absence of the affiants. Respondent Notarized the “Extrajudicial Partition with Absolute Sale”in the Absence of the Affiants Respondent himself admits that he merely relied on the representation of Rosalina Angeles that the signatures appearing on the “Extrajudicial Partition with Absolute Sale” subject of the present complaint are those of her co-heirs.[5] Respondent claims that he reposed confidence upon Rosalina Angeles because she is his confidential secretary. Unfortunately for respondent, he cannot exculpate himself from the consequences of his recklessness and his failure to comply with the requirements of the law by relying on his confidential secretary. Time and again, we have reminded lawyers commissioned as notaries public that the affiants must personally appear before them. Section 1 of Public Act No. 2103, or the Notarial Law, provides: Sec. 1. (a) The acknowledgement shall be before a notary public or an officer duly authorized by law of the country to take acknowledgements of instruments or documents in the place where the act is done. The notary public or the officer taking the acknowledgement shall certify that the person acknowledging the instrument or document is known to him and that he is the same person who executed it, acknowledged that the same is his free act and deed. The certificate shall be made under the official seal, if he is required by law to keep a seal, and if not, his certificate shall so state. Section 2(b) of Rule IV of the Rules on Notarial Practice of 2004 reads:
A person shall not perform a notarial act if the person involved as signatory to the instrument or document -(1) is not in the notary’s presence personally at the time of the notarization; and(2) is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules. The physical presence of the affiants enables the notary public to verify the genuineness of the signatures of the acknowledging parties and to ascertain that the document is the parties’ free act and deed.[6] Notarization of a private document converts such document into a public one, and renders it admissible in court without further proof of its authenticity. Courts, administrative agencies and the public at large must be able to rely upon the acknowledgment executed by a notary public and appended to a private instrument. Notarization is not an empty routine; to the contrary, it engages public interest in a substantial degree and the protection of that interest requires preventing those who are not qualified or authorized to act as notaries public from imposing upon the public and the courts and administrative offices generally.[7]
Under the facts and circumstances of the case, respondent’s notarial commission should not only be suspended but respondent must also be suspended from the practice of law. WHEREFORE, the Court finds respondent Atty. Amado O. Ibañez GUILTY of notarizing the “Extrajudicial Partition with Absolute Sale” in the absence of the affiants. Accordingly, the Court SUSPENDS him from the practice of law for one year,REVOKES his incumbent notarial commission, if any, and PROHIBITS him from being commissioned as a notary public for one year, effective immediately, with a stern warning that a repetition of the same or similar offense shall be dealt with more severely. Let copies of this Decision be furnished to the Office of the Bar Confidant, to be appended to respondent’s personal record as attorney. Likewise, copies shall be furnished to the Integrated Bar of the Philippines and all courts in the country for their information and guidance. SO ORDERED.EN BANCA.C. No. 8010 June 16, 2009KELD STEMMERIK, represented by ATTYS. HERMINIO A. LIWANAG and WINSTON P.L. ESGUERRA,Complainant, vs.ATTY. LEONUEL N. MAS, Respondent.R E S O L U T I O NPer Curiam:Complainant Keld Stemmerik is a citizen and resident of Denmark. In one of his trips to the Philippines, he was introduced to respondent Atty. Leonuel N. Mas. That was his misfortune.In one visit to the Philippines, complainant marveled at the beauty of the country and expressed his interest in acquiring real property in the Philippines. He consulted respondent who advised him that he could legally acquire and own real property in the Philippines. Respondent even suggested an 86,998 sq.m. property in Quarry, Agusuin, Cawag, Subic, Zambales with the assurance that the property was alienable.Trusting respondent, complainant agreed to purchase the property through respondent as his representative or attorney-in-fact. Complainant also engaged the services of respondent for the preparation of the necessary documents. For this purpose, respondent demanded and received a P400,000 fee.Confident that respondent would faithfully carry out his task, complainant returned to Denmark, entrusting the processing of the necessary paperwork to respondent.Thereafter, respondent prepared a contract to sell the property between complainant, represented by respondent, and a certain Bonifacio de Mesa, the purported owner of the property.1 Subsequently, respondent
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prepared and notarized a deed of sale in which de Mesa sold and conveyed the property to a certain Ailyn Gonzales for P3.8 million.2 Respondent also drafted and notarized an agreement between complainant and Gonzales stating that it was complainant who provided the funds for the purchase of the property.3 Complainant then gave respondent the full amount of the purchase price (P3.8 million) for which respondent issued an acknowledgment receipt.4
After the various contracts and agreements were executed, complainant tried to get in touch with respondent to inquire about when the property could be registered in his name. However, respondent suddenly became scarce and refused to answer complainant’s calls and e-mail messages.When complainant visited the Philippines again in January 2005, he engaged the services of the Jimenez Gonzales Liwanag Bello Valdez Caluya & Fernandez Law Office to ascertain the status of the property he supposedly bought. He was devastated to learn that aliens could not own land under Philippine laws. Moreover, verification at the Community Environment & Natural Resources Office (CENRO) of the Department of Environment and Natural Resources in Olongapo City revealed that the property was inalienable as it was situated within the former US Military Reservation.5 The CENRO also stated that the property was not subject to disposition or acquisition under Republic Act No. 141.6
Thereafter, complainant, through his attorneys-in-fact,7 exerted diligent efforts to locate respondent for purposes of holding him accountable for his fraudulent acts. Inquiry with the Olongapo Chapter of the Integrated Bar of the Philippines (IBP) disclosed that respondent was in arrears in his annual dues and that he had already abandoned his law office in Olongapo City.8 Search of court records of cases handled by respondent only yielded his abandoned office address in Olongapo City.1avvphi1Complainant filed a complaint for disbarment against respondent in the Commission on Bar Discipline (CBD) of the IBP.9 He deplored respondent’s acts of serious misconduct. In particular, he sought the expulsion of respondent from the legal profession for gravely misrepresenting that a foreigner could legally acquire land in the Philippines and for maliciously absconding with complainant’s P3.8 million.10
Respondent failed to file his answer and position paper despite service of notice at his last known address. Neither did he appear in the scheduled mandatory conference. In this connection, the CBD found that respondent abandoned his law practice in Olongapo City after his transaction with complainant and that he did not see it fit to contest the charges against him.11
The CBD ruled that respondent used his position as a lawyer to mislead complainant on the matter of land ownership by a foreigner.12 He even went through the motion of preparing falsified and fictitious contracts, deeds and agreements. And for all these shameless acts, he collected P400,000 from complainant. Worse, he pocketed the P3.8 million and absconded with it.13
The CBD found respondent to be "nothing more than an embezzler" who misused his professional status as an attorney as a tool for deceiving complainant and absconding with complainant’s money.14 Respondent was dishonest and deceitful. He abused the trust and confidence reposed by complainant in him. The CBD recommended the disbarment of respondent.15
The Board of Governors of the IBP adopted the findings and recommendation of the CBD with the modification that respondent was further required to return the amount of P4.2 million to respondent.16
We agree with the IBP.Sufficiency Of Notice OfThe Disbarment ProceedingsWe shall first address a threshold issue: was respondent properly given notice of the disbarment proceedings against him? Yes.The respondent did not file any answer or position paper, nor did he appear during the scheduled mandatory conference. Respondent in fact abandoned his last known address, his law office in Olongapo City, after he committed the embezzlement.Respondent should not be allowed to benefit from his disappearing act. He can neither defeat this Court’s jurisdiction over him as a member of the bar nor evade administrative liability by the mere ruse of concealing his
whereabouts. Thus, service of the complaint and other orders and processes on respondent’s office was sufficient notice to him.Indeed, since he himself rendered the service of notice on him impossible, the notice requirement cannot apply to him and he is thus considered to have waived it. The law does not require that the impossible be done. Nemo tenetur ad impossibile.17 The law obliges no one to perform an impossibility. Laws and rules must be interpreted in a way that they are in accordance with logic, common sense, reason and practicality.18
In this connection, lawyers must update their records with the IBP by informing the IBP National Office or their respective chapters19 of any change in office or residential address and other contact details.20 In case such change is not duly updated, service of notice on the office or residential address appearing in the records of the IBP National Office shall constitute sufficient notice to a lawyer for purposes of administrative proceedings against him.Respondent’s Administrative InfractionsAnd His Liability ThereforLawyers, as members of a noble profession, have the duty to promote respect for the law and uphold the integrity of the bar. As men and women entrusted with the law, they must ensure that the law functions to protect liberty and not as an instrument of oppression or deception.Respondent has been weighed by the exacting standards of the legal profession and has been found wanting.Respondent committed a serious breach of his oath as a lawyer. He is also guilty of culpable violation of the Code of Professional Responsibility, the code of ethics of the legal profession.All lawyers take an oath to support the Constitution, to obey the laws and to do no falsehood.21 That oath is neither mere formal ceremony nor hollow words. It is a sacred trust that should be upheld and kept inviolable at all times.22
Lawyers are servants of the law23 and the law is their master. They should not simply obey the laws, they should also inspire respect for and obedience thereto by serving as exemplars worthy of emulation. Indeed, that is the first precept of the Code of Professional Responsibility:CANON 1 – A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL PROCESSES.Section 7, Article XII of the Constitution provides:SEC. 7. Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.This Court has interpreted this provision, as early as the 1947 case Krivenko v. Register of Deeds,24 to mean that "under the Constitution, aliens may not acquire private or agricultural lands, including residential lands." The provision is a declaration of imperative constitutional policy.25
Respondent, in giving advice that directly contradicted a fundamental constitutional policy, showed disrespect for the Constitution and gross ignorance of basic law. Worse, he prepared spurious documents that he knew were void and illegal.By making it appear that de Mesa undertook to sell the property to complainant and that de Mesa thereafter sold the property to Gonzales who made the purchase for and in behalf of complainant, he falsified public documents and knowingly violated the Anti-Dummy Law.26
Respondent’s misconduct did not end there. By advising complainant that a foreigner could legally and validly acquire real estate in the Philippines and by assuring complainant that the property was alienable, respondent deliberately foisted a falsehood on his client. He did not give due regard to the trust and confidence reposed in him by complainant. Instead, he deceived complainant and misled him into parting with P400,000 for services that were both illegal and unprofessional. Moreover, by pocketing and misappropriating the P3.8 million given by complainant for the purchase of the property, respondent committed a fraudulent act that was criminal in nature.1avvphi1Respondent spun an intricate web of lies. In the process, he committed unethical act after unethical act, wantonly violating laws and professional standards.
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For all this, respondent violated not only the lawyer’s oath and Canon 1 of the Code of Professional Responsibility. He also transgressed the following provisions of the Code of Professional Responsibility:Rule 1.01. – A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.Rule 1.02. – A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system.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.CANON 15 – A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENT.CANON 16 – A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES OF HIS CLIENTTHAT MAY COME INTO HIS POSSESSION.CANON 17 – A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM. (emphasis supplied)A lawyer who resorts to nefarious schemes to circumvent the law and uses his legal knowledge to further his selfish ends to the great prejudice of others, poses a clear and present danger to the rule of law and to the legal system. He does not only tarnish the image of the bar and degrade the integrity and dignity of the legal profession, he also betrays everything that the legal profession stands for.It is respondent and his kind that give lawyering a bad name and make laymen support Dick the Butcher’s call, "Kill all lawyers!"27 A disgrace to their professional brethren, they must be purged from the bar.WHEREFORE, respondent Atty. Leonuel N. Mas is hereby DISBARRED. The Clerk of Court is directed to immediately strike out the name of respondent from the Roll of Attorneys.Respondent is hereby ORDERED to return to complainant Keld Stemmerik the total amount of P4.2 million with interest at 12% per annum from the date of promulgation of this resolution until full payment. Respondent is furtherDIRECTED to submit to the Court proof of payment of the amount within ten days from payment.The National Bureau of Investigation (NBI) is ORDERED to locate Atty. Mas and file the appropriate criminal charges against him. The NBI is further DIRECTED to regularly report the progress of its action in this case to this Court through the Bar Confidant.Let copies of this resolution be furnished the Bar Confidant who shall forthwith record it in the personal file of respondent, the Court Administrator who shall inform all courts of the Philippines, the Integrated Bar of the Philippines which shall disseminate copies to all its chapters and members and all administrative and quasi-judicial agencies of the Republic of the Philippines.SO ORDERED.
LUZVIMINDA R. LUSTESTICA,Complainant,- versus -ATTY. SERGIO E. BERNABE,Respondent. -- -
A.C. No. 6258Present:CORONA, C.J.,CARPIO,CARPIO MORALES,VELASCO, JR.,NACHURA,LEONARDO-DE CASTRO,brion,PERALTABERSAMIN,DEL CASTILLO,ABAD,VILLARAMA, JR.,PEREZ,
MENDOZA, andSERENO, JJ.Promulgated:August 24, 2010
x-----------------------------------------------------------------------------------------x D E C I S I O N PER CURIAM:For consideration is the disbarment complaint filed by Luzviminda R. Lustestica (complainant) against Atty. Sergio E. Bernabe (respondent) for notarizing a falsified or forged Deed of Donation of real property despite the non-appearance of the donors, Benvenuto H. Lustestica (complainant’s father) and his first wife, Cornelia P. Rivero, both of whom were already dead at the time of execution of the said document.In his Answer,1 the respondent admitted the fact of death of Benvenuto H. Lustestica and Cornelia P. Rivero, considering their death certificates attached to the complaint. The respondent claimed, however, that he had no knowledge that the real Benvenuto H. Lustestica and Cornelia P. Rivero were already dead at the time he notarized the Deed of Donation.2 He also claimed that he exerted efforts to ascertain the identities of the persons who appeared before him and represented themselves as the donors under the Deed of Donation.3
After the submission of the respondent’s Answer to the complaint, the Court referred the matter to the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP Commission on Bar Discipline) for investigation, evaluation and recommendation. The IBP Commission on Bar Discipline made the following findings:The core issue is whether or not Respondent committed a falsehood in violation of his oath as a lawyer and his duties as Notary Public when he notarized the Deed of Donation purportedly executed by Benvenuto H. Lustestica and Cornelia P. Rivero as the donors and Cecilio R. Lustestica and Juliana Lustestica as the donees on 5 August 1994.Section 1 of Public Act No. 2013, otherwise known as the Notarial Law, explicitly provides:x x x The notary public or the officer taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him and that he is the same person who executed it acknowledged that the same is his free act and deed. x x x.As correctly observed by Complainant, Respondent’s Acknowledgment is the best evidence that NO RESIDENCE CERTIFICATES were presented by the alleged donors and the donees. Had the parties presented their residence certificates to Respondent, it was his duty and responsibility under the Notarial Law to enter, as part of his certification, the number, place of issue and date of each residence certificate presented by the parties to the Deed of Donation. Respondent, however, failed to make the required entries. Respondent’s claim that the persons who allegedly appeared before him and represented themselves to be the parties to the Deed of Donation showed their residence certificates and that he instructed his secretary to indicate the details of the residence certificates of the parties is self-serving and not supported by the evidence on record.x x x xThe fact that Respondent notarized a forged/falsified document is also undisputed not only by [the] strength of Complainant’s documentary evidence but more importantly, by Respondent’s own judicial admission. x x x. In view of Respondent’s judicial admission that the alleged donors, BENVENUTO H. LUSTESTICA and his first wife, CORNELIA P. RIVERO, died on 7 September 1987 and 24 September 1984, respectively, it is beyond reasonable doubt that said donors could not have personally appeared before him on 5 August 1994 to [acknowledge] to him that they freely and voluntary executed the Deed of Donation. Moreover, x x x quasi-judicial notice of the Decision of the Municipal Trial Court finding accused CECILIO LUSTESTICA and JULIANA LUSTESTICA GUILTY BEYOND REASONABLE DOUBT as principals of the crime of falsification of public document.4
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In his Report dated August 15, 2005, IBP Commissioner Leland R. Villadolid, Jr. found the respondent grossly negligent in the performance of his duties as notary public and recommended that the respondent’s notarial commission be suspended for a period of one (1) year. The IBP Commissioner also recommended that a penalty ranging from reprimand to suspension be imposed against the respondent, with a warning that a similar conduct in the future will warrant an imposition of a more severe penalty.5
By Resolution No. XVII-2005-116 dated October 22, 2005, the Board of Governors of the IBP Commission on Bar Discipline adopted and approved the Report of the IBP Commissioner. The pertinent portion of this Resolution reads:[C]onsidering Respondent’s gross negligence in the performance of his duties as Notary Public, Atty. Sergio E. Bernabe is hereby SUSPENDED from the practice of law for one (1) year and Respondent’s notarial commission is Revoked and Disqualified from reappointment as Notary Public for two (2) years with a notification that this suspension of one year must be served in succession to the initial recommendation of the IBP Board of Suspension of one year in CBD Case No. 04-1371.6
From these undisputed facts, supervening events occurred that must be taken into consideration of the present case.First, CBD Case No. 04-1371, entitled Victorina Bautista, complainant, v. Atty. Sergio E. Bernabe, respondent, which was the case referred to in Resolution No. XVII-2005-116, was docketed as A.C. No. 69637 before the Court. In a decision dated February 9, 2006, the Court revoked the respondent’s notarial commission and disqualified him from reappointment as Notary Public for a period of two (2) years, for his failure to properly perform his duties as notary public when he notarized a document in the absence of one of the affiants. In addition, the Court suspended him from the practice of law for a period of one (1) year, with a warning that a repetition of the same or of similar acts shall be dealt with more severely.Second, on January 6, 2006, the respondent filed a motion for reconsideration of Resolution No. XVII-2005-116 before the IBP Commission on Bar Discipline. The respondent moved to reconsider the IBP Resolution, claiming that the penalty imposed for the infraction committed was too harsh. The motion was denied in Resolution No. XVII-2006-81, dated January 28, 2006,8 for lack of jurisdiction of the IBP Commission on Bar Discipline, since the administrative matter had then been endorsed to the Court.Third, on January 4, 2006, a motion for reconsideration (the same as the one filed with the IBP Commission on Bar Discipline) was filed by the respondent before the Court. In a Minute Resolution dated March 22, 2006, the Court noted the findings and recommendations in Resolution No. XVII-2005-116 and required the complainant to file her Comment to the respondent’s motion for reconsideration. On April 28, 2006, the complainant filed her Comment praying for the denial of the motion.On July 5, 2006, the Court issued a Minute Resolution noting the denial of the respondent’s motion for reconsideration, by the IBP Commission on Bar Discipline, and the complainant’s Comment to the respondent’s motion before the Court.Subsequently, on January 26, 2009, the Court declared the case closed and terminated after considering that no motion for reconsideration or petition for review, assailing both IBP resolutions, had been filed by the respondent.9
On October 8, 2009, the respondent, through a letter addressed to the Office of the Bar Confidant, requested that he be given clearance to resume the practice of law and to allow him to be commissioned as a notary public. In his letter, the respondent alleged that he has already served the penalties imposed against him in A.C. No. 6963 and the present case. He claimed that after the receipt of the IBP Resolutions in both cases, he did not practice his profession and had not been appointed or commissioned as a notary public.The Office of the Bar ConfidantActing on the respondent’s letter, the Office of the Bar Confidant submitted a Report and Recommendation, which states:1. The EFFECTIVITY of the respondent’s suspension and disqualification should have been COMMENCED on the date of receipt of the Decision of the Court and not from the date of receipt of the Resolution of the IBP
recommending the respondent’s suspension from the practice of law and disqualification from being commissioned as notary public, it being recommendatory in nature;2. The prayer of the respondent to resume his practice of law in Adm. Case No. 6963 be denied;3. The respondent be REQUIRED to submit certification from competent courts and IBP that he has fully served the entire period of suspension and disqualification in Adm. Case No. 6963;4. The Court may now FINALLY RESOLVE the findings and recommendation of the IBP in its Resolution No. XVII-2005-16, dated October 2005, in Adm. Case No. 6258, for final disposition of the case and for proper determination whether the order of suspension and disqualification in Adm. Case No. 6963 should be lifted after the respondent has satisfactorily shown that he has fully served the suspension and disqualification.10
The Court’s RulingThe findings of the Board of Governors of the IBP Commission on Bar Discipline are well-taken. We cannot overemphasize the important role a notary public performs. In Gonzales v. Ramos,11 we stressed that notarization is not an empty, meaningless routinary act but one invested with substantive public interest. The notarization by a notary public converts a private document into a public document, making it admissible in evidence without further proof of its authenticity.12 A notarized document is, by law, entitled to full faith and credit upon its face.13 It is for this reason that a notary public must observe with utmost care the basic requirements in the performance of his duties; otherwise, the public’s confidence in the integrity of a notarized document would be undermined.14
The records undeniably show the gross negligence exhibited by the respondent in discharging his duties as a notary public. He failed to ascertain the identities of the affiants before him and failed to comply with the most basic function that a notary public must do, i.e., to require the parties’ presentation of their residence certificates or any other document to prove their identities. Given the respondent’s admission in his pleading that the donors were already dead when he notarized the Deed of Donation, we have no doubt that he failed in his duty to ascertain the identities of the persons who appeared before him as donors in the Deed of Donation.Under the circumstances, we find that the respondent should be made liable not only as a notary public but also as a lawyer. He not only violated the Notarial Law (Public Act No. 2103), but also Canon 1 and Rule 1.01 of the Code of Professional Responsibility.Section 1 of Public Act No. 2103 (Old Notarial Law)15 states:(a) The acknowledgment shall be made before a notary public or an officer duly authorized by law of the country to take acknowledgments of instruments or documents in the place where the act is done. The notary public or the officer taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him and that he is the same person who executed it, and acknowledged that the same is his free act and deed. The certificate shall be made under his official seal, if he is by law required to keep a seal, and if not, his certificate shall so state.In turn, Canon 1 of the Code of Professional Responsibility provides that "[a] lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and legal processes." At the same time, Rule 1.01 of the Code of Professional Responsibility prohibits a lawyer from engaging in unlawful, dishonest, immoral or deceitful conduct.In this regard, a reading of the respondent’s Acknowledgment in the Deed of Donation shows how these provisions were violated by the respondent:BEFORE ME, Notary Public for and in Bulacan this AUG 05 1994 day of August, 1994, personally appeared:BENVENUTO H. LUSTESTICA: C.T.C. # _______:________:________CORNELIA RIVERO : C.T.C. # ________:________:________CECILIO LUSTESTICA : C.T.C. # ________:________:________JULIANA LUSTESTICA : C.T.C. # ________:________:________known to me and to me known to be the same persons who executed the foregoing instrument and acknowledged to me that the same are their free act and voluntary deed.16
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The respondent engaged in dishonest conduct because he falsely represented in his Acknowledgment that the persons who appeared before him were "known to him" to be the same persons who executed the Deed of Donation, despite the fact that he did not know them and did not ascertain their identities as he attested.17
Moreover, the respondent engaged in unlawful conduct when he did not observe the requirements under Section 1 of the Old Notarial Law that requires notaries public to certify that the party to the instrument has acknowledged and presented, before the notaries public, the proper residence certificate (or exemption from the residence certificate) and to enter the residence certificate’s number, place, and date of issue as part of the certification.18 The unfilled spaces in the Acknowledgment where the residence certificate numbers should have been clearly established that the respondent did not perform this legal duty.With these considerations, we find that the imposition of administrative sanctions for the above infractions committed is in order.The IBP Commission on Bar Discipline recommended the penalty of suspension, for a period of one (1) year, from the practice of law and disqualification from reappointment as Notary Public for a period of two (2) years. Considering that this is already Atty. Bernabe’s second infraction, we find the IBP’s recommendation to be very light; it is not commensurate with his demonstrated predisposition to undertake the duties of a notary public and a lawyer lightly.In Maligsa v. Cabanting,19 we disbarred a lawyer for failing to subscribe to the sacred duties imposed upon a notary public. In imposing the penalty of disbarment, the Court considered the lawyer’s prior misconduct where he was suspended for a period of six (6) months and warned that a repetition of the same or similar act would be dealt with more severely.20
In Flores v. Chua,21 we disbarred the lawyer after finding that he deliberately made false representations that the vendor appeared before him when he notarized a forged deed of sale. We took into account that he was previously found administratively liable for violation of Rule 1.01 of the Code of Professional Responsibility (for bribing a judge) and sternly warned that a repetition of similar act or acts or violation committed by him in the future would be dealt with more severely.22
In Traya v. Villamor,23 we found the respondent notary public guilty of gross misconduct in his notarial practice for failing to observe the proper procedure in determining that the person appearing before him is the same person who executed the document presented for notarization. Taking into account that it was his second offense, he was perpetually disqualified from being commissioned as a notary public.24
In Social Security Commission v. Coral,25 we suspended indefinitely the notarial commission of the respondent lawyer who was found to have prepared, notarized and filed two complaints that were allegedly executed and verified by people who have long been dead. We also directed him to show cause why he should not be disbarred.26
Considering these established rulings, read in light of the circumstances in the present case, we find that Atty. Bernabe should be disbarred from the practice of law and perpetually disqualified from being commissioned as a notary public. We emphasize that this is respondent’s second offense and while he does not appear to have any participation in the falsification of the Deed of Donation, his contribution was his gross negligence for failing to ascertain the identity of the persons who appeared before him as the donors. This is highlighted by his admission27 in his Answer that he did not personally know the parties and was not acquainted with them. The blank spaces in the Acknowledgment indicate that he did not even require these parties to produce documents that would prove that they are the same persons they claim to be. As we emphasized in Maligsa:A lawyer shall at all times uphold the integrity and dignity of the legal profession. The bar should maintain a high standard of legal proficiency as well as honesty and fair dealing. A lawyer brings honor to the legal profession by faithfully performing his duties to society, to the bar, to the courts and to his clients. To this end a member of the legal fraternity should refrain from doing any act which might lessen in any degree the confidence and trust reposed by the public in the fidelity, honesty and integrity of the legal profession.28
In light of the above findings and penalties, the respondent’s request to be given clearance to resume the practice of law and to apply for a notarial commission, after serving the administrative sanctions in A.C. No.
6963, is now moot and academic. We, accordingly, deny the request for clearance to practice law and to apply for notarial commission.WHEREFORE, premises considered, the Court resolves to:(1) NOTE the letter dated October 8, 2009 of respondent Atty. Sergio E. Bernabe to the Office of the Bar Confidant.(2) ADOPT the findings and recommendations of the IBP Commission on Bar Discipline with MODIFICATION on the administrative penalty imposed.(3) DECLARE respondent Atty. Sergio E. Bernabe liable for gross negligence, in the performance of his duties as notary public, and for his deceitful and dishonest attestation, in the course of administering the oath taken before him. Respondent Atty. Sergio E. Bernabe is hereby DISBARRED from the practice of law and his name is ORDERED STRICKEN from the Roll of Attorneys. He is also PERPETUALLY DISQUALIFIED from being commissioned as a notary public.(4) DENY the request for clearance to practice law and to apply for notarial commission of respondent Atty. Sergio E. Bernabe.Let a copy of this Decision be attached to Atty. Sergio E. Bernabe’s record, as a member of the bar, and copies furnished to the Integrated Bar of the Philippines and the Office of the Court Administrator for circulation to all courts.In view of the notarization of a falsified deed whose purported parties were already dead at the time of notarization, let a copy of this Decision be furnished the Office of the Prosecutor General, Department of Justice for whatever action, within its jurisdiction, it may deem appropriate to bring against Atty. Sergio E. Bernabe.SO ORDERED.