Legal Ethics

Case 1Topic: Canon 1

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

A.M. No. 3360 January 30, 1990

PEOPLE OF THE PHILIPPINES, complainant vs.ATTY. FE T. TUANDA, respondent.

PER CURIAM:

In a Motion to Lift Order of Suspension dated 12 July 1989, respondent Fe T. Tuanda, a member of the Philippine Bar, asks this Court to lift the suspension from the practice of law imposed upon her by a decision of the Court of Appeals dated 17 October 1988 in C.A.-G.R. CR No. 05093.

On 17 December 1983, respondent received from one Herminia A. Marquez several pieces of jewelry, with a total stated value of P36,000.00, for sale on a commission basis, with the condition that the respondent would turn over the sales proceeds and return the unsold items to Ms. Marquez on or before 14 February 1984. Sometime in February 1984, respondent, instead of returning the unsold pieces of jewelry which then amounted to approximately P26,250.00, issued three checks: (a) a check dated 16 February 1984 for the amount of P5,400.00; (b) a check dated 23 February 1984 also for the amount of P5,400.00; and (c) a check dated 25 February 1984 for the amount of P15,450.00. Upon presentment for payment within ninety (90) days after their issuance, all three (3) checks were dishonored by the drawee bank, Traders Royal Bank, for insufficiency of funds. Notwithstanding receipt of the notice of dishonor, respondent made no arrangements with the bank concerning the honoring of checks which had bounced and made no effort to settle her obligations to Ms. Marquez.

Consequently, four (4) informations were filed against respondent with the Regional Trial Court of Manila: (a) one for estafa, docketed as Criminal Case No. 85-38358; and (b) three (3) for violation of B.P. Blg. 22, docketed respectively as Criminal Cases Nos. 85-38359, 85-38360 and 85-38361. In due time, after trial, the trial court rendered a decision dated 25 August 1987 which:

(a) acquitted respondent of the charge of estafa; and

(b) convicted respondent of violation of B.P. Blg. 22 in all three (3) cases, and sentenced respondent to pay a fine of P6,000.00, with subsidiary imprisonment in case of insolvency and to indemnify the complainant in the amount of P5,400.00 in Criminal Case No. 8538359;

to pay a fine of P 6,000.00, with subsidiary imprisonment in case of insolvency and to indemnify the complainant in the amount of P5,400.00, in Criminal Case No. 85-38360; and

to pay a fine of P16,000.00, with subsidiary imprisonment in case of insolvency, and to indemnify the complainant in the amount of P15,450.00, in Criminal Case No. 85-38361, and to pay the costs in all three (3) cases.

On appeal, the Court of Appeals in C.A.-G.R. CR No. 05093 affirmed in toto the decision of the trial court but, in addition, suspended respondent Tuanda from the practice of law. The pertinent portion of the decision read as follows:

For reasons above stated and finding the evidence sufficient to sustain the conviction, the judgment is hereby AFFIRMED subject to this modification.

It appearing from the records that the accused Fe Tuanda is a member of the Bar, and the offense for (sic) which she is found guilty involved moral turpitude, she is hereby ordered suspended from the practice of law and shall not practice her profession until

Cases in Legal Ethics Bachelor of Laws 3A 1

further action from the Supreme Court, in accordance with Sections 27 and 28 of Rule 138 of the Rules of Court. A copy of this decision must be forwarded to the Supreme Court as required by Section 29 of the same Rule.

SO ORDERED. 1

On 16 December 1988, respondent filed a Notice of Appeal with the Court of Appeals. The Court of Appeals, in a Resolution dated 9 January 1989, noted respondent's Notice of Appeal and advised her "to address her Notice of Appeal to the Honorable Supreme Court, the proper forum." On 1 February 1989, respondent filed with this Court a Notice of Appeal.

In a Resolution dated 31 May 1989, the Supreme Court noted without action respondent's Notice of Appeal and declared that the Court of Appeals' decision of 17 October 1988 had become final and executory upon expiration of the period for filing a petition for review on certiorari on 16 December 1988. In that Resolution, the Court found that respondent had lost her right to appeal by certiorari when she posted with this Court a Notice of Appeal instead of filing a petition for review on certiorari under Section 1, Rule 45 of the Revised Rules of Court within the reglementary period.

In the instant Motion to Lift Order of Suspension, respondent states:

that suspension from the practice of law is indeed a harsh if not a not painful penalty aggravating the lower court's penalty of fine considering that accused-appellant's action on the case during the trial on the merits at the lower court has always been motivated purely by sincere belief that she is innocent of the offense charged nor of the intention to cause damage to the herein plaintiff-appellee.

We read the above statement as a claim by the respondent that, she had not violated her oath as a member of the Philippine Bar upon the ground that when she issued the checks which bounced, she did not intend to cause damage to complainant Ms. Marquez.

The Court affirms the suspension from the practice of law imposed by the Court of Appeals upon respondent Tuanda. The Court of Appeals correctly ruled that "the offense [of] which she is found guilty involved moral turpitude." We should add that violation of B.P. Blg. 22 is a serious criminal offense which deleteriously affects public interest and public order. In Lozano v. Martinez, 2 the Court explained the nature of the offense of violation of B.P. Blg. 22 in the following terms:

xxx xxx xxx

The gravamen of the offense punished by B.P. Blg. 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment. . . . The thrust of the law is to prohibit under pain of penal sanctions, the making of worthless checks and putting them in circulation. Because of its deleterious effects on the public interest, the practice is prescribed by the law. The law punishes the act not as an offense against property but an offense against public order.

xxx xxx xxx

The effects of the issuance of a worthless check transcends the private interests of the parties directly involved in the transaction and touches the interests of the community at large. The mischief it creates is not only a wrong to the payee or holder, but also an injury to the public. The harmful practice of putting valueless commercial papers in circulation, multiplied a thousandfold, can very well pollute the channels of trade and commerce, injure the banking system and eventually hurt the welfare of society and the public interest. 3 (Italics supplied)

Respondent was thus correctly suspended from the practice of law because she had been convicted of crimes involving moral turpitude. Sections 27 and 28 of Rule 138 of the Revised Rules of Court provide as follows:

Sec. 27. Attorneys renewed or suspended by Supreme Court on what grounds. A member of the bar may be removed or suspended from his office as attorney by the Supreme Court of 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. (Italics supplied)

Sec. 28. Suspension of attorney by the Court of Appeals or a Court of First Instance. — The Court of Appeals or a Court of First Instance may suspend an attorney from practice for any of the causes named in the last preceding section, and after such suspension such attorney shall not practice his profession until further action of the Supreme Court in the premises. (Italics supplied)Cases in Legal Ethics Bachelor of Laws 3A 2

We should add that the crimes of which respondent was convicted also import deceit and violation of her attorney's oath and the Code of Professional Responsibility under both of which she was bound to "obey the laws of the land." Conviction of a crime involving moral turpitude might not (as in the instant case, violation of B.P. Blg. 22 does not) relate to the exercise of the profession of a lawyer; however, it certainly relates to and affects the good moral character of a person convicted of such offense. In Melendrez v. Decena, 4 this Court stressed that:

the nature of the office of an attorney at law requires that she shall be a person of good moral character. This qualification is not only a condition precedent to an admission to the practice of law; its continued possession is also essential for remaining in the practice of law. 5

ACCORDINGLY, the Court Resolved to DENY the Motion to Lift Order of Suspension. Respondent shall remain suspended from the practice of law until further orders from this Court. A copy of this Resolution shall be forwarded to the Bar Confidant and to the Integrated Bar of the Philippines and spread on the record of respondent.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes and Griño-Aquino, JJ., concur.




Manila

EN BANC

A.C. No. 104 January 28, 1954

BENITA S. BALINON, petitioner, vs.CELESTINO M. DE LEON, ET AL., respondents.

Office of the Solicitor General Juan R. Liwag, First Assistant Solicitor General Ruperto Kapunan, Jr. and Solicitor Juan T. Alano for petitioner.Celestino M. de Leon in his own behalf.Justo T. Velayo in his own behalf.

PARAS, C.J.:

The Solicitor General has filed a complaint against the respondent Celestino M. de Leon and Justo T. Velayo, duly qualified members of the bar in active practice, alleging that, since December, 1948, respondent de Leon, still legally married to Vertudes Marquez, lived as husband and wife with Regina S. Balinon; the said respondent prepared and subscribed on February 4, 1948, before respondent Velayo, a notary public, an affidavit which reads as follows:

KNOW ALL MEN BY THESE PRESENTS:

I, Celestino de Leon, of legal age, married, Filipino citizen, after having been duly sworn to according to law depose and say:

That there exists a contract of separation executed and perfected between my wife, Vertudes Marquez and myself;

That said contract states among other things that each of us is at liberty and free to take for himself and herself a lifetime partner with the full consent and authorization of each other;

That by the same contract our conjugal partnership was dissolved and our existing property, rights and interests were divided and apportioned;

That in the said contract my wife shall have full control, care and custody of the children, and as such all of our conjugal property rights and interests were apportioned to her with the exception of my private personal belongings and things pertaining to my law profession;

That, besides the dissolution and the apportionment, said contract further states about my wife's and also my children's share to my current income by way of alimony and support;

Now, therefore, by virtue of the said contract of separation, I now by these presents take my new found life-partner Regina S. Balinon, as my true and lawful wife;

That in order to protect her rights and interests with regards to her personality and future property rights, I, hereby voluntarily and of my own free will solemnly swear under oath;

That I will uphold and defend her honor and dignity and prestige as a woman of the weaker sex as well as any and all members of her family arising by reasons of said relationship;

That I will remain loyal and faithful to her as a lawful and devoted loving husband for the rest of my life at all costs;


That I will maintain and preserve the new existing companionship, the love, respect and goodwill prevailing among the members of her family of which I am now a member as well as equally mine;

That I will not do any act that may tend to degrade or dishonor her or any member of her family unbecoming the dignity of said relationship but would rather take and respect her as my true and lawful wife;

That in case of intentional desertion on my part thereby frustrating the true and honest intent of my affirmations, the same may be sufficient ground for my perpetual disbarment upon her instance or any third party in interest;

That except for such minor dues and allowances by way of alimony and support mentioned above, any and all such future properties, rights and interests that we shall acquire during such relationship shall exclusively appertain and belong to her as her due share and shall bear her name in all such titles and documents thereto, subject to her legal share as such;

That any offspring that we shall bear by reason of said companionship and relationship shall be acknowledged by me as my true and legal child with all the rights and privileges accorded by law pertaining to that of a legitimate child;

That this contract of companionship is done of my own accord, freely and voluntarily without any mental reservation or purpose of evasion, So help me God.

In witness whereof, I have hereunto set my signature this 4th day of February 1949.

(Sgd.) CELESTINO M. DE LEON

Signed in the Presence of :

................................................................................................... .................................................................................

..................

REPUBLIC OF THE PHILIPPINES s.s.City of Bacolod

Personally appeared before me this 4th day of February 1949, Celestino de Leon with Residence Certificate No. ............ issued at ................ on ............... 1949 who executed the foregoing affidavit with contract of companionship consisting of two pages, and acknowledged by me that the same is his own free and voluntary act and deed.

IN WITNESS WHEREOF, I have hereunto set my hand and seal on the place and date first written above.

(Sgd.) CELESTINO M. DE LEONNotary PublicUntil December 31, 1948

Doc. No. 484Page No. 97Book No. XVISeries of 1949.

The complaint also alleges that, notwithstanding the unlawful and immoral purposes of the foregoing affidavit, respondent Velayo knowingly signed the same in violation of his oath of office as attorney and notary public.

Respondent De Leon admits his continuous cohabitation with Regina S. Balinon during his subsisting marriage with Vertudes Marquez and the fact the he prepared and subscribed the affidavit above quoted, but contends that he has not been finally convicted of a crime involving moral turpitude; that while the affidavit may be illicit, it is not an agreement but a mere innocent unilateral declaration of facts; and that while the execution of said affidavit may be illegal and void ab initio, no specific law has been violated so as to give rise to an action. Respondent Velayo alleges, on the other hand, that his participation was limited to the task of


notarizing the affidavit, as a matter of courtesy to a brother lawyer and without knowing its contents, and this allegation is corroborated by respondent De Leon who further stated that no consideration whatsoever passed to the former.

This court had heretofore imposed the penalty of suspension upon an attorney who prepared a document stipulating, among others, that the contracting parties, who are husband and wife, authorized each other to marry again and that each renounced whatever right of action one might have against the party so marrying (In re Roque Santiago, 40 Off. Gaz. [7th Supp.] p. 208). In effect the affidavit prepared and signed by respondent De Leon has similar implication, in that although it did not bluntly authorize said respondent to marry another during his subsisting wedlock with Vertudes Marquez, he made it appear that he could take in another woman as a lifetime partner to whom he would remain loyal and faithful as a lawful and devoted loving husband and whom he could take and respect as his true and lawful wife; thereby virtually permitting himself to commit the crime of concubinage. It is true, as respondent De Leon argues, that the consent or pardon of either spouse constitutes a bar to a criminal prosecution for adultery and concubinage, but, as the Solicitor General observes, said crimes are not thereby legalized, the result being merely that prosecution in such cases would not lie. The contention that the affidavit is only a unilateral declaration of facts is of no moment, since it undoubtedly enabled respondent De Leon to attain his purpose of winning over Regina S. Balinon with some degree of permanence.

It is likewise insisted that the acts imputed to respondent De Leon had no relation with his professional duties and therefore cannot serve as a basis for suspension or disbarment under section 25 of Rule 127. It should be remembered, however, that a member of the bar may be removed or suspended from office as a lawyer on grounds other than those enumerated by said provision (In re Pelaez, 44 Phil., 567). Moreover, we can even state that respondent De Leon was able to prepare the affidavit in question because he is a lawyer, and has rendered professional service to himself as a client. He surely employed his knowledge of the law and skill as an attorney to his advantage. (Manalo vs. Gan, Adm. Case No. 72, May 13, 1953.)

With reference with respondent Velayo, there is no question that he did nothing except to affix his signature to the affidavit in question as a notary public. While, as contended by his counsel, the duty of a notary public is principally to ascertain the identity of the affiant and the voluntariness of the declaration, it is nevertheless incumbent upon him at least to guard against having anything to do with an illegal or immoral arrangement. In the present case respondent Velayo was somewhat negligent in just affixing his signature to the affidavit, although his fault is mitigated by the fact the he had relied on the good faith of his co-respondent.

Wherefore, we hereby decree the suspension from the practice of law of respondent Celestino M. de Leon for three years from the date of promulgation of this decision. Respondent Justo T. Velayo is hereby merely reprimanded. So ordered.

Case 3Cases in Legal Ethics Bachelor of Laws 3A 6

Topic: Canon 2

EN BANC

March 23, 1929

In re LUIS B. TAGORDA,

The respondent, Luis B. Tagorda, a practising attorney and a member of the provincial board of Isabela, admits that previous to the last general elections he made use of a card written in Spanish and Ilocano, which, in translation, reads as follows:

LUIS B. TAGORDAAttorneyNotary PublicCANDIDATE FOR THIRD MEMBERProvince of Isabela

(NOTE. — As notary public, he can execute for you a deed of sale for the purchase of land as required by the cadastral office; can renew lost documents of your animals; can make your application and final requisites for your homestead; and can execute any kind of affidavit. As a lawyer, he can help you collect your loans although long overdue, as well as any complaint for or against you. Come or write to him in his town, Echague, Isabela. He offers free consultation, and is willing to help and serve the poor.)

The respondent further admits that he is the author of a letter addressed to a lieutenant of barrio in his home municipality written in Ilocano, which letter, in translation, reads as follows:

ECHAGUE, ISABELA, September 18, 1928

MY DEAR LIEUTENANT: I would like to inform you of the approaching date for our induction into office as member of the Provincial Board, that is on the 16th of next month. Before my induction into office I should be very glad to hear your suggestions or recommendations for the good of the province in general and for your barrio in particular. You can come to my house at any time here in Echague, to submit to me any kind of suggestion or recommendation as you may desire.

I also inform you that despite my membership in the Board I will have my residence here in Echague. I will attend the session of the Board of Ilagan, but will come back home on the following day here in Echague to live and serve with you as a lawyer and notary public. Despite my election as member of the Provincial Board, I will exercise my legal profession as a lawyer and notary public. In case you cannot see me at home on any week day, I assure you that you can always find me there on every Sunday. I also inform you that I will receive any work regarding preparations of documents of contract of sales and affidavits to be sworn to before me as notary public even on Sundays.

I would like you all to be informed of this matter for the reason that some people are in the belief that my residence as member of the Board will be in Ilagan and that I would then be disqualified to exercise my profession as lawyer and as notary public. Such is not the case and I would make it clear that I am free to exercise my profession as formerly and that I will have my residence here in Echague.

I would request you kind favor to transmit this information to your barrio people in any of your meetings or social gatherings so that they may be informed of my desire to live and to serve with you in my capacity as lawyer and notary public. If the people in your locality have not as yet contracted the services of other lawyers in connection with the registration of their land titles, I would be willing to handle the work in court and would charge only three pesos for every registration.

Yours respectfully,

(Sgd.) LUIS TAGORDAAttorney Notary Public.

The facts being conceded, it is next in order to write down the applicable legal provisions. Section 21 of the Code of Civil Procedure as originally conceived related to disbarments of members of the bar. In 1919 at the instigation of the Philippine Bar Association,


said codal section was amended by Act No. 2828 by adding at the end thereof the following: "The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice."

The statute as amended conforms in principle to the Canons of Professionals Ethics adopted by the American Bar Association in 1908 and by the Philippine Bar Association in 1917. Canons 27 and 28 of the Code of Ethics provide:

27. ADVERTISING, DIRECT OR INDIRECT. — The most worthy and effective advertisement possible, even for a young lawyer, and especially with his brother lawyers, is the establishment of a well-merited reputation for professional capacity and fidelity to trust. This cannot be forced, but must be the outcome of character and conduct. The publication or circulation of ordinary simple business cards, being a matter of personal taste or local custom, and sometimes of convenience, is not per se improper. But solicitation of business by circulars or advertisements, or by personal communications or interview not warranted by personal relations, is unprofessional. It is equally unprofessional to procure business by indirection through touters of any kind, whether allied real estate firms or trust companies advertising to secure the drawing of deeds or wills or offering retainers in exchange for executorships or trusteeships to be influenced by the lawyer. Indirect advertisement for business by furnishing or inspiring newspaper comments concerning the manner of their conduct, the magnitude of the interest involved, the importance of the lawyer's position, and all other like self-laudation, defy the traditions and lower the tone of our high calling, and are intolerable.

28. STIRRING UP LITIGATION, DIRECTLY OR THROUGH AGENTS. — It is unprofessional for a lawyer to volunteer advice to bring a lawsuit, except in rare cases where ties of blood, relationship or trust make it his duty to do so. Stirring up strife and litigation is not only unprofessional, but it is indictable at common law. It is disreputable to hunt up defects in titles or other causes of action and inform thereof in order to the employed to bring suit, or to breed litigation by seeking out those with claims for personal injuries or those having any other grounds of action in order to secure them as clients, or to employ agents or runners for like purposes, or to pay or reward directly or indirectly, those who bring or influence the bringing of such cases to his office, or to remunerate policemen, court or prison officials, physicians, hospital attaches or others who may succeed, under the guise of giving disinterested friendly advice, in influencing the criminal, the sick and the injured, the ignorant or others, to seek his professional services. A duty to the public and to the profession devolves upon every member of the bar having knowledge of such practices upon the part of any practitioner immediately to inform thereof to the end that the offender may be disbarred.

Common barratry consisting of frequently stirring up suits and quarrels between individuals was a crime at the common law, and one of the penalties for this offense when committed by an attorney was disbarment. Statutes intended to reach the same evil have been provided in a number of jurisdictions usually at the instance of the bar itself, and have been upheld as constitutional. The reason behind statutes of this type is not difficult to discover. The law is a profession and not a business. The lawyer may not seek or obtain employment by himself or through others for to do so would be unprofessional. (State vs. Rossman [1909], 53 Wash., 1; 17 Ann. Cas., 625; People vs. Mac Cabe [1893], 19 L. R. A., 231; 2 R. C. L., 1097.)

It becomes our duty to condemn in no uncertain terms the ugly practice of solicitation of cases by lawyers. It is destructive of the honor of a great profession. It lowers the standards of that profession. It works against the confidence of the community in the integrity of the members of the bar. It results in needless litigation and in incenting to strife otherwise peacefully inclined citizens.

The solicitation of employment by an attorney is a ground for disbarment or suspension. That should be distinctly understood.

Giving application of the law and the Canons of Ethics to the admitted facts, the respondent stands convicted of having solicited cases in defiance of the law and those canons. Accordingly, the only remaining duty of the court is to fix upon the action which should here be taken. The provincial fiscal of Isabela, with whom joined the representative of the Attorney-General in the oral presentation of the case, suggests that the respondent be only reprimanded. We think that our action should go further than this if only to reflect our attitude toward cases of this character of which unfortunately the respondent's is only one. The commission of offenses of this nature would amply justify permanent elimination from the bar. But as mitigating, circumstances working in favor of the respondent there are, first, his intimation that he was unaware of the impropriety of his acts, second, his youth and inexperience at the bar, and, third, his promise not to commit a similar mistake in the future. A modest period of suspension would seem to fit the case of the erring attorney. But it should be distinctly understood that this result is reached in view of the considerations which have influenced the court to the relatively lenient in this particular instance and should, therefore, not be taken as indicating that future convictions of practice of this kind will not be dealt with by disbarment.

In view of all the circumstances of this case, the judgment of the court is that the respondent Luis B. Tagorda be and is hereby suspended from the practice as an attorney-at-law for the period of one month from April 1, 1929,



FIRST DIVISION[A.C. No. 5299. August 19, 2003]

ATTY. ISMAEL G. KHAN, JR., Assistant Court Administrator and Chief, Public Information Office, complainant, vs. ATTY. RIZALINO T. SIMBILLO, respondent.[G.R. No. 157053. August 19, 2003]

ATTY. RIZALINO T. SIMBILLO, petitioner, vs. IBP COMMISSION ON BAR DISCIPLINE and ATTY. ISMAEL G. KHAN, JR., in his capacity as Assistant Court Administrator and Chief, Public Information Office, respondents.R E S O L U T I O NYNARES-SANTIAGO, J.:

This administrative complaint arose from a paid advertisement that appeared in the July 5, 2000 issue of the newspaper, Philippine Daily Inquirer, which reads: “ANNULMENT OF MARRIAGE Specialist 532-4333/521-2667.”[1]

Ms. Ma. Theresa B. Espeleta, a staff member of the Public Information Office of the Supreme Court, called up the published telephone number and pretended to be an interested party. She spoke to Mrs. Simbillo, who claimed that her husband, Atty. Rizalino Simbillo, was an expert in handling annulment cases and can guarantee a court decree within four to six months, provided the case will not involve separation of property or custody of children. Mrs. Simbillo also said that her husband charges a fee of P48,000.00, half of which is payable at the time of filing of the case and the other half after a decision thereon has been rendered.

Further research by the Office of the Court Administrator and the Public Information Office revealed that similar advertisements were published in the August 2 and 6, 2000 issues of the Manila Bulletin and August 5, 2000 issue of The Philippine Star.[2]

On September 1, 2000, Atty. Ismael G. Khan, Jr., in his capacity as Assistant Court Administrator and Chief of the Public Information Office, filed an administrative complaint against Atty. Rizalino T. Simbillo for improper advertising and solicitation of his legal services, in violation of Rule 2.03 and Rule 3.01 of the Code of Professional Responsibility and Rule 138, Section 27 of the Rules of Court.[3]

In his answer, respondent admitted the acts imputed to him, but argued that advertising and solicitation per se are not prohibited acts; that the time has come to change our views about the prohibition on advertising and solicitation; that the interest of the public is not served by the absolute prohibition on lawyer advertising; that the Court can lift the ban on lawyer advertising; and that the rationale behind the decades-old prohibition should be abandoned. Thus, he prayed that he be exonerated from all the charges against him and that the Court promulgate a ruling that advertisement of legal services offered by a lawyer is not contrary to law, public policy and public order as long as it is dignified.[4]

The case was referred to the Integrated Bar of the Philippines for investigation, report and recommendation.[5] On June 29, 2002, the IBP Commission on Bar Discipline passed Resolution No. XV-2002-306,[6] finding respondent guilty of violation of Rules 2.03 and 3.01 of the Code of Professional Responsibility and Rule 138, Section 27 of the Rules of Court, and suspended him from the practice of law for one (1) year with the warning that a repetition of similar acts would be dealt with more severely. The IBP Resolution was noted by this Court on November 11, 2002.[7]

In the meantime, respondent filed an Urgent Motion for Reconsideration,[8] which was denied by the IBP in Resolution No. XV-2002-606 dated October 19, 2002[9]

Hence, the instant petition for certiorari, which was docketed as G.R. No. 157053 entitled, “Atty. Rizalino T. Simbillo, Petitioner versus IBP Commission on Bar Discipline, Atty. Ismael G. Khan, Jr., Asst. Court Administrator and Chief, Public Information Office, Respondents.” This petition was consolidated with A.C. No. 5299 per the Court’s Resolution dated March 4, 2003.

In a Resolution dated March 26, 2003, the parties were required to manifest whether or not they were willing to submit the case for resolution on the basis of the pleadings.[10] Complainant filed his Manifestation on April 25, 2003, stating that he is not submitting any additional pleading or evidence and is submitting the case for its early resolution on the basis of pleadings and records thereof. [11] Respondent, on the other hand, filed a Supplemental Memorandum on June 20, 2003.


We agree with the IBP’s Resolutions Nos. XV-2002-306 and XV-2002-606.

Rules 2.03 and 3.01 of the Code of Professional Responsibility read:

Rule 2.03. – A lawyer shall not do or permit to be done any act designed primarily to solicit legal business.

Rule 3.01. – A lawyer shall not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services.

Rule 138, Section 27 of the Rules of Court states:

SEC. 27. Disbarment and 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.

It has been repeatedly stressed that the practice of law is not a business.[12] It is a profession in which duty to public service, not money, is the primary consideration. Lawyering is not primarily meant to be a money-making venture, and law advocacy is not a capital that necessarily yields profits.[13] The gaining of a livelihood should be a secondary consideration.[14] The duty to public service and to the administration of justice should be the primary consideration of lawyers, who must subordinate their personal interests or what they owe to themselves.[15] The following elements distinguish the legal profession from a business:

1. A duty of public service, of which the emolument is a by-product, and in which one may attain the highest eminence without making much money;

2. A relation as an “officer of the court” to the administration of justice involving thorough sincerity, integrity and reliability;

3. A relation to clients in the highest degree of fiduciary;

4. A relation to colleagues at the bar characterized by candor, fairness, and unwillingness to resort to current business methods of advertising and encroachment on their practice, or dealing directly with their clients.[16]

There is no question that respondent committed the acts complained of. He himself admits that he caused the publication of the advertisements. While he professes repentance and begs for the Court’s indulgence, his contrition rings hollow considering the fact that he advertised his legal services again after he pleaded for compassion and after claiming that he had no intention to violate the rules. Eight months after filing his answer, he again advertised his legal services in the August 14, 2001 issue of the Buy & Sell Free Ads Newspaper.[17] Ten months later, he caused the same advertisement to be published in the October 5, 2001 issue of Buy & Sell.[18] Such acts of respondent are a deliberate and contemptuous affront on the Court’s authority.

What adds to the gravity of respondent’s acts is that in advertising himself as a self-styled “Annulment of Marriage Specialist,” he wittingly or unwittingly erodes and undermines not only the stability but also the sanctity of an institution still considered sacrosanct despite the contemporary climate of permissiveness in our society. Indeed, in assuring prospective clients that an annulment may be obtained in four to six months from the time of the filing of the case,[19] he in fact encourages people, who might have otherwise been disinclined and would have refrained from dissolving their marriage bonds, to do so.

Nonetheless, the solicitation of legal business is not altogether proscribed. However, for solicitation to be proper, it must be compatible with the dignity of the legal profession. If it is made in a modest and decorous manner, it would bring no injury to the lawyer and to the bar.[20] Thus, the use of simple signs stating the name or names of the lawyers, the office and residence address and fields of practice, as well as advertisement in legal periodicals bearing the same brief data, are permissible. Even the use of calling cards is now acceptable.[21] Publication in reputable law lists, in a manner consistent with the standards of conduct imposed by the canon, of brief biographical and informative data is likewise allowable. As explicitly stated in Ulep v. Legal Clinic, Inc.:[22]

Such data must not be misleading and may include only a statement of the lawyer’s name and the names of his professional associates; addresses, telephone numbers, cable addresses; branches of law practiced; date and place of birth and admission to the bar; schools attended with dates of graduation, degrees and other educational distinctions; public or quasi-public offices; posts of honor; legal authorships; legal teaching positions; membership and offices in bar associations and committees thereof, in legal and


scientific societies and legal fraternities; the fact of listings in other reputable law lists; the names and addresses of references; and, with their written consent, the names of clients regularly represented.

The law list must be a reputable law list published primarily for that purpose; it cannot be a mere supplemental feature of a paper, magazine, trade journal or periodical which is published principally for other purposes. For that reason, a lawyer may not properly publish his brief biographical and informative data in a daily paper, magazine, trade journal or society program. Nor may a lawyer permit his name to be published in a law list the conduct, management, or contents of which are calculated or likely to deceive or injure the public or the bar, or to lower dignity or standing of the profession.

The use of an ordinary simple professional card is also permitted. The card may contain only a statement of his name, the name of the law firm which he is connected with, address, telephone number and special branch of law practiced. The publication of a simple announcement of the opening of a law firm or of changes in the partnership, associates, firm name or office address, being for the convenience of the profession, is not objectionable. He may likewise have his name listed in a telephone directory but not under a designation of special branch of law. (emphasis and italics supplied)

WHEREFORE, in view of the foregoing, respondent RIZALINO T. SIMBILLO is found GUILTY of violation of Rules 2.03 and 3.01 of the Code of Professional Responsibility and Rule 138, Section 27 of the Rules of Court. He is SUSPENDED from the practice of law for ONE (1) YEAR effective upon receipt of this Resolution. He is likewise STERNLY WARNED that a repetition of the same or similar offense will be dealt with more severely.

Let copies of this Resolution be entered in his record as attorney and be furnished the Integrated Bar of the Philippines and all courts in the country for their information and guidance.

SO ORDERED.



Republic of the PhilippinesSUPREME COURTManila

EN BANC

Adm. Case No. 2131 May 10, 1985

ADRIANO E. DACANAY, complainant vs.BAKER & MCKENZIE and JUAN G. COLLAS JR., LUIS MA. GUERRERO, VICENTE A. TORRES, RAFAEL E. EVANGELISTA, JR., ROMEO L. SALONGA, JOSE R. SANDEJAS, LUCAS M. NUNAG, J. CLARO TESORO, NATIVIDAD B. KWAN and JOSE A. CURAMMENG, JR., respondents.

Adriano E. Dacanay for and his own behalf.

Madrid, Cacho, Angeles, Dominguez & Pecson Law Office for respondents.

AQUINO, J.:

Lawyer Adriano E. Dacanay, admitted to the bar in 1954, in his 1980 verified complaint, sought to enjoin Juan G. Collas, Jr. and nine other lawyers from practising law under the name of Baker & McKenzie, a law firm organized in Illinois.

In a letter dated November 16, 1979 respondent Vicente A. Torres, using the letterhead of Baker & McKenzie, which contains the names of the ten lawyers, asked Rosie Clurman for the release of 87 shares of Cathay Products International, Inc. to H.E. Gabriel, a client.

Attorney Dacanay, in his reply dated December 7, 1979, denied any liability of Clurman to Gabriel. He requested that he be informed whether the lawyer of Gabriel is Baker & McKenzie "and if not, what is your purpose in using the letterhead of another law office." Not having received any reply, he filed the instant complaint.

We hold that Baker & McKenzie, being an alien law firm, cannot practice law in the Philippines (Sec. 1, Rule 138, Rules of Court). As admitted by the respondents in their memorandum, Baker & McKenzie is a professional partnership organized in 1949 in Chicago, Illinois with members and associates in 30 cities around the world. Respondents, aside from being members of the Philippine bar, practising under the firm name of Guerrero & Torres, are members or associates of Baker & Mckenzie.

As pointed out by the Solicitor General, respondents' use of the firm name Baker & McKenzie constitutes a representation that being associated with the firm they could "render legal services of the highest quality to multinational business enterprises and others engaged in foreign trade and investment" (p. 3, respondents' memo). This is unethical because Baker & McKenzie is not authorized to practise law here. (See Ruben E. Agpalo, Legal Ethics, 1983 Ed., p. 115.)

WHEREFORE, the respondents are enjoined from practising law under the firm name Baker & McKenzie.

SO ORDERED.

Teehankee, Acting CJ., Makasiar, Abad Santos, Melencio-Herrera, Escolin, Relova, Gutierrez, Jr., De la Fuente, Cuevas and Alampay, JJ., concur.

Plana, J., took no part.

Fernando, C.J., and Concepcion, Jr., J., are on leave.



PEDRO L. LINSANGAN, A.C. No. 6672 Complainant, Present: PUNO, C.J., Chairperson, CARPIO,- v e r s u s - CORONA, LEONARDO-DE CASTRO and BERSAMIN, JJ. ATTY. NICOMEDES TOLENTINO, Respondent. Promulgated: September 4, 2009

CORONA, J.: This is a complaint for disbarment[1] filed by Pedro Linsangan of the Linsangan Linsangan & Linsangan Law Office against Atty. Nicomedes Tolentino for solicitation of clients and encroachment of professional services. Complainant alleged that respondent, with the help of paralegal Fe Marie Labiano, convinced his clients[2] to transfer legal representation. Respondent promised them financial assistance[3] and expeditious collection on their claims.[4] To induce them to hire his services, he persistently called them and sent them text messages. To support his allegations, complainant presented the sworn affidavit[5] of James Gregorio attesting that Labiano tried to prevail upon him to sever his lawyer-client relations with complainant and utilize respondent’s services instead, in exchange for a loan of P50,000. Complainant also attached “respondent’s” calling card:[6] Front NICOMEDES TOLENTINOLAW OFFFICECONSULTANCY & MARITIME SERVICESW/ FINANCIAL ASSISTANCE Fe Marie L. LabianoParalegal 1st MIJI Mansion, 2nd Flr. Rm. M-01 Tel: 362-78206th Ave., cor M.H. Del Pilar Fax: (632) 362-7821Grace Park, Caloocan City Cel.: (0926) 2701719 BackSERVICES OFFERED:CONSULTATION AND ASSISTANCETO OVERSEAS SEAMENREPATRIATED DUE TO ACCIDENT,INJURY, ILLNESS, SICKNESS, DEATHAND INSURANCE BENEFIT CLAIMSABROAD.


(emphasis supplied) Hence, this complaint. Respondent, in his defense, denied knowing Labiano and authorizing the printing and circulation of the said calling card.[7] The complaint was referred to the Commission on Bar Discipline (CBD) of the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.[8] Based on testimonial and documentary evidence, the CBD, in its report and recommendation,[9] found that respondent had encroached on the professional practice of complainant, violating Rule 8.02[10] and other canons[11] of the Code of Professional Responsibility (CPR). Moreover, he contravened the rule against soliciting cases for gain, personally or through paid agents or brokers as stated in Section 27, Rule 138[12] of the Rules of Court. Hence, the CBD recommended that respondent be reprimanded with a stern warning that any repetition would merit a heavier penalty. We adopt the findings of the IBP on the unethical conduct of respondent but we modify the recommended penalty. The complaint before us is rooted on the alleged intrusion by respondent into complainant’s professional practice in violation of Rule 8.02 of the CPR. And the means employed by respondent in furtherance of the said misconduct themselves constituted distinct violations of ethical rules. Canons of the CPR are rules of conduct all lawyers must adhere to, including the manner by which a lawyer’s services are to be made known. Thus, Canon 3 of the CPR provides: CANON 3 - A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES SHALL USE ONLY TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE INFORMATION OR STATEMENT OF FACTS. Time and time again, lawyers are reminded that the practice of law is a profession and not a business; lawyers should not advertise their talents as merchants advertise their wares.[13] To allow a lawyer to advertise his talent or skill is to commercialize the practice of law, degrade the profession in the public’s estimation and impair its ability to efficiently render that high character of service to which every member of the bar is called.[14] Rule 2.03 of the CPR provides: RULE 2.03. A LAWYER SHALL NOT DO OR PERMIT TO BE DONE ANY ACT DESIGNED PRIMARILY TO SOLICIT LEGAL BUSINESS. Hence, lawyers are prohibited from soliciting cases for the purpose of gain, either personally or through paid agents or brokers.[15] Such actuation constitutes malpractice, a ground for disbarment.[16] Rule 2.03 should be read in connection with Rule 1.03 of the CPR which provides: RULE 1.03. A LAWYER SHALL NOT, FOR ANY CORRUPT MOTIVE OR INTEREST, ENCOURAGE ANY SUIT OR PROCEEDING OR DELAY ANY MAN’S CAUSE. This rule proscribes “ambulance chasing” (the solicitation of almost any kind of legal business by an attorney, personally or through an agent in order to gain employment)[17] as a measure to protect the community from barratry and champerty.[18] Complainant presented substantial evidence[19] (consisting of the sworn statements of the very same persons coaxed by Labiano and referred to respondent’s office) to prove that respondent indeed solicited legal business as well as profited from referrals’ suits. Although respondent initially denied knowing Labiano in his answer, he later admitted it during the mandatory hearing. Through Labiano’s actions, respondent’s law practice was benefited. Hapless seamen were enticed to transfer representation on the strength of Labiano’s word that respondent could produce a more favorable result. Based on the foregoing, respondent clearly solicited employment violating Rule 2.03, and Rule 1.03 and Canon 3 of the CPR and Section 27, Rule 138 of the Rules of Court. Cases in Legal Ethics Bachelor of Laws 3A 14

With regard to respondent’s violation of Rule 8.02 of the CPR, settled is the rule that a lawyer should not steal another lawyer’s client nor induce the latter to retain him by a promise of better service, good result or reduced fees for his services.[20] Again the Court notes that respondent never denied having these seafarers in his client list nor receiving benefits from Labiano’s “referrals.” Furthermore, he never denied Labiano’s connection to his office.[21] Respondent committed an unethical, predatory overstep into another’s legal practice. He cannot escape liability under Rule 8.02 of the CPR. Moreover, by engaging in a money-lending venture with his clients as borrowers, respondent violated Rule 16.04: Rule 16.04 – A lawyer shall not borrow money from his client unless the client’s interests are fully protected by the nature of the case or by independent advice. Neither shall a lawyer lend money to a client except, when in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client. The rule is that a lawyer shall not lend money to his client. The only exception is, when in the interest of justice, he has to advance necessary expenses (such as filing fees, stenographer’s fees for transcript of stenographic notes, cash bond or premium for surety bond, etc.) for a matter that he is handling for the client. The rule is intended to safeguard the lawyer’s independence of mind so that the free exercise of his judgment may not be adversely affected.[22] It seeks to ensure his undivided attention to the case he is handling as well as his entire devotion and fidelity to the client’s cause. If the lawyer lends money to the client in connection with the client’s case, the lawyer in effect acquires an interest in the subject matter of the case or an additional stake in its outcome.[23] Either of these circumstances may lead the lawyer to consider his own recovery rather than that of his client, or to accept a settlement which may take care of his interest in the verdict to the prejudice of the client in violation of his duty of undivided fidelity to the client’s cause.[24] As previously mentioned, any act of solicitation constitutes malpractice[25] which calls for the exercise of the Court’s disciplinary powers. Violation of anti-solicitation statutes warrants serious sanctions for initiating contact with a prospective client for the purpose of obtaining employment.[26] Thus, in this jurisdiction, we adhere to the rule to protect the public from the Machiavellian machinations of unscrupulous lawyers and to uphold the nobility of the legal profession. Considering the myriad infractions of respondent (including violation of the prohibition on lending money to clients), the sanction recommended by the IBP, a mere reprimand, is a wimpy slap on the wrist. The proposed penalty is grossly incommensurate to its findings. A final word regarding the calling card presented in evidence by petitioner. A lawyer’s best advertisement is a well-merited reputation for professional capacity and fidelity to trust based on his character and conduct.[27] For this reason, lawyers are only allowed to announce their services by publication in reputable law lists or use of simple professional cards. Professional calling cards may only contain the following details: (a) lawyer’s name;(b) name of the law firm with which he is connected;(c) address;(d) telephone number and(e) special branch of law practiced.[28] Labiano’s calling card contained the phrase “with financial assistance.” The phrase was clearly used to entice clients (who already had representation) to change counsels with a promise of loans to finance their legal actions. Money was dangled to lure clients away from their original lawyers, thereby taking advantage of their financial distress and emotional vulnerability. This crass commercialism degraded the integrity of the bar and deserved no place in the legal profession. However, in the absence of substantial evidence to prove his culpability, the Court is not prepared to rule that respondent was personally and directly responsible for the printing and distribution of Labiano’s calling cards.WHEREFORE, respondent Atty. Nicomedes Tolentino for violating Rules 1.03, 2.03, 8.02 and 16.04 and Canon 3 of the Code of Professional Responsibility and Section 27, Rule 138 of the Rules of Court is hereby SUSPENDED from the practice of law for a period of one year effective immediately from receipt of this resolution. He is STERNLY WARNED that a repetition of the same or similar acts in the future shall be dealt with more severely. Let a copy of this Resolution be made part of his records in the Office of the Bar Confidant, Supreme Court of the Philippines, and be furnished to the Integrated Bar of the Philippines and the Office of the Court Administrator to be circulated to all courts. SO ORDERED.Cases in Legal Ethics Bachelor of Laws 3A 15



Manila

SECOND DIVISION

A.M. No. RTJ-93-1033 October 10, 1995

MARIBETH CORDOVA and CHRISTOPHER CORDOVA, complainants, vs.HON. EMMA C. LABAYEN, Presiding Judge, Branch 54, RTC, 6th Judicial Region, Bacolod City; HON. BETHEL KATALBAS-MOSCARDON, former Presiding Judge of Branch 54, RTC, 6th Judicial Region, Bacolod City; GIA L. ARINDAY, Branch Clerk of Court, and MARIO P. LAMERA, Court Sheriff, Branch 54, RTC, Bacolod City; ARMANDO N. ESO, Court Sheriff, and EDGAR DEPAMAYLO, Subpoena Server, Branch 50, RTC, Bacolod City, respondents.

REGALADO, J.:

For consideration by the Court is the matter of the order we issued on November 23, 1994, 1 requiring Atty. Salvador T. Sabio, counsel for herein complainants, to show cause and explain why he should not be administratively dealt with for violation of Canon I, Rules 1.02 and 1.03 of the Code of Professional Responsibility.

Acting on the Memorandum of the Office of the Court Administrator and the Compliance 2 filed by Atty. Sabio, the Court issued a Resolution on May 30, 1995, 3 further referring the matter to the Bar Confidant for evaluation, report and recommendation. On July 7, 1995, the latter submitted a Report and Recommendation 4 finding Atty. Sabio guilty of violating Rules 1.02 and 1.03 of Canon I, which the Court hereby approves with modifications.

The present incident is an offshoot of an administrative complaint 5 filed by complainants Maribeth and Christopher Cordova, through their aforesaid counsel, Atty. Sabio, against herein respondents for disbarment, dismissal from office and disqualification to hold public office with forfeiture of employment benefits for their involvement in Civil Case No. 7092 of the Regional Trial Court, Branch 54, Bacolod City. The administrative complaint, however, was dismissed by this Court on the basis of a Memorandum Report 6 dated October 17, 1994 submitted by Deputy Court Administrator Bernardo P. Abesamis, who likewise recommended that Atty. Sabio be required to explain why he should not be administratively dealt with for violation of Canon I, Rules 1.02 and 1103 on the ground that:

Their charge that Atty. Salvador T. Sabio "clearly instigated" the filing of this complaint is also not totally baseless.

In her comment, Judge Moscardon stated that ". . . the original counsel on record unquestionably accepted the Decision of the appellate RTC court (sic). On the other hand, the petitioners now, as well as their present counsel who are not fully conversant (with) the circumstances surrounding the matter, now attempt to mislead the High Court . . . ." Also worth mentioning were the allegations that (1) the respondent sheriffs were criminally charged for robbery, grave threats and malicious mischief; (2) that the plaintiffs re-occupied the premises after being ejected therefrom; (3) Atty. Sabio had been charged for crimes involving dishonesty.

The foregoing points to the possible violations of the Code of Professional Ethics, particularly Canon I, Rule 1.02 (A lawyer shall not counsel or abet activities aimed at defiance of the law . . .) and Rule 1.03 (A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or delay any man's cause).


The main bulk of Atty. Sabio's contentions were premised on the issue of whether the writs of execution were issued and implemented by herein respondents in gross violation of Sections 8 and 10, Rule 70 of the Rules of Court, with manifest partiality and breach of judicial trust, and with grave abuse of discretion in excess of jurisdiction. In his Compliance, Atty. Sabio asserts that the writ of execution was issued pending appeal despite the filing of a supersedeas bond and the payment of advance rentals. A review of the complaint, comment and answer filed in this case will readily show that the writs in question were issued strictly in accordance with Sections 8 and 10, Rule 70 of the Rules of Court which provide:

Sec. 8. Immediate Execution of judgment. How to stay same. — If judgment is rendered against the defendant, execution shall issue immediately, unless an appeal has been perfected and the defendant to stay execution files a sufficient bond, approved by the municipal or city court and executed to the plaintiff to enter the action in the Court of First Instance and to pay the rents, damages, and costs accruing down to the time of the judgment appealed from, and unless, during the pendency of the appeal, he deposits with the appellate court the amount of rent due from time to time under the contract, if any, as found by the judgment of the municipal or city court to exist. In the absence of a contract, he shall deposit with the court the reasonable value of the use and occupation of the premises for the preceding month or period at the rate determined by the judgment, on or before the tenth day of each succeeding month or period. The supersedeas bond shall be transmitted by the municipal or city court, with the other papers, to the clerk of the Court of First Instance to which the action is appealed.

xxx xxx xxx

Sec. 10. Stay of execution on appeal to Court of Appeals or Supreme Court. — Where defendant appeals from a judgment of the Court of First Instance, execution of said judgment, with respect to the restoration of possession, shall not be stayed unless the appellant deposits the same amounts and within the periods referred to in Section 8 of this rule to be disposed of in the same manner as therein provided.

The records of this administrative matter show that in an action for ejectment filed against the predecessor in interest of herein complainants, 7 judgment was rendered on April 14, 1992 by the Municipal Trial Court, Branch 6, Bacolod City, in Civil Case No. 18761, ordering defendants to vacate the premises and to pay plaintiffs therein the sum of P5,000.00 as attorney's fees plus P1,200.00 appearance fee, P18,000.00 for rentals from May, 1991 to April, 1992, and costs of suit. On August 20, 1992, the Regional Trial Court affirmed said judgment after finding that there was no cogent reason to reverse the lower court's decision.

A Motion for Writ of Execution Pending Appeal was filed by plaintiffs on September 4, 1995, to which an Opposition and Motion for Reconsideration was filed by defendants on September 10, 1992. The Regional Trial Court granted the motion on September 28, 1992 and the writ of execution was issued on September 30, 1992. However, in the afternoon of September 29, 1992, plaintiffs filed a Motion for Reconsideration of the order of September 28, 1992 granting the motion for execution, on the ground that they could not file the supersedeas bond because the court allegedly failed to apprise them of the amount thereof and, at the same time, attaching to said motion a bond in the amount of P18,000.00. The motion for reconsideration was denied by the Regional Trial Court on October 1, 1992, as a consequence of which the writ of execution previously issued was implemented on October 8, 1992 and plaintiffs were ordered restored to the possession of the subject premises.

Therein defendant Luz Cordova went to the Court of Appeals on a petition for certiorari with injunction but was rebuffed therein. In a decision promulgated on March 31, 1993 in CA-G.R. SP No. 29102, said appellate court affirmed in toto the decision of the Regional Trial Court. As a result, the lower court granted on April 21, 1993 the Motion for Alias Writ of Execution filed by plaintiffs and ordered the release of the amounts of P12,000.00 and P18,000.00 deposited by therein defendants. An alias writ of execution was subsequently issued on April 26, 1993.

The administrative complaint now filed before us by herein complainants, as heirs and successors in interest of the late Luz Cordova, revolves around the validity of the writ of execution issued by Judge Moscardon and the aliaswrit of execution issued by Judge Labayen.

1. The writ of execution issued on September 30, 1992 by Judge Moscardon is being controverted on the ground that a supersedeas bond had been validly filed in this case and periodic rentals had been paid, hence said supposed compliance with the Rules of Court should have legally stayed execution pending appeal.


Sections 8 and 10 of Rule 70 clearly provide that to stay the immediate execution of judgment in ejectment proceedings, it is necessary that the defendant-appellant must (a) perfect his appeal, (b) file a supersedeas bond, and (c) periodically deposit the rentals falling due during the pendency of the appeal.

The purpose of the supersedeas bond is to answer for the rents, damages and costs accruing down to the judgment of the inferior court appealed from, the amount of which is to be determined from the judgment of said court. The postulation of complainants and their counsel that the execution sought was effectively stayed by the filing of a supersedeas bond was sufficiently refuted and justifiably rejected when we consider the circumstances then obtaining.

First. The amount of the supersedeas bond to be posted is easily discernible from the dispositive portion of the judgment of the municipal trial court. Hence, it was erroneous, if not altogether a deliberate falsity, for Atty. Sabio to claim that they could not file a supersedeas bond because that court failed to determine the same.

Second. The bond should have been filed forthwith after the municipal trial court had rendered judgment against complainants, which judgment was immediately executory, without prejudice to the right of appeal. As the records readily reveal, the purported bond was belatedly filed on September 29, 1992, more than five months later, and only after the aforementioned Regional Trial Court had already issued an order granting the motion for execution pending appeal. We cannot, therefore, elude the impression thus created that the filing thereof came only as a dilatory afterthought on the part of defendants and their counsel. In a vain attempt to remedy the situation, Atty. Sabio filed a motion for reconsideration of the order granting execution, but the same necessarily had to fail for being frivolous.

Third. It will be observed that no supersedeas bond was filed after the rendition of the decision either in the court of origin or in the appellate court. The requirement for the filing of a supersedeas bond is mandatory. 8Defendants in the ejectment case appealed to the latter court without filing a supersedeas bond. Such failure is a ground for outright execution of the judgment of the municipal trial court, the duty of the appellate court to order the execution of the appealed decision being thereby ministerial and imperative. 9

Fourth. The Court of Appeals stated that the amount of P18,000.00 deposited by defendants therein represented rental payments for the period from May, 1991 to April, 1992, and that a writ of execution had by then already been issued by the Regional Trial Court. Evidently, therefore, the amount thus deposited could not qualify as or subserve the purpose of a supersedeas bond. Thus:

Finally, anent the prayer for injunction, petitioner contends that she had deposited with the public respondent court the amount of P18,000.00 representing the money judgment, to stay execution pending appeal. The court noted that the said amount represented the rental payments only for the months from May 1991 to April 1992. It is for this reason that this Court, in its Resolution dated October 9, 1992 (p. 60, Rollo), ordered petitioner to present proof of subsequent payments made pursuant to Sections 8 and 10 of Rule 70. It appears, however, that a Writ of Execution was already issued and even implemented (par. 5. Urgent Motion for Issuance of Temporary Restraining Order, pp. 98-99, Rollo; Delivery of Possession, p. 118, Rollo) that a preliminary injunction is thereby rendered nugatory. . . . 10

While it is true, therefore, that defendants deposited an amount which approximates the monetary judgment for unpaid rentals, since the same was filed late, it could not qualify as a supersedeas bond. What is considered material for purposes of staying execution pending appeal under Rule 70 is not only the fact of payment but, more importantly, the timeliness of the filing of the supersedeas bond. Hence, the amount of P18,000.00 was correctly applied as mere rental payments from May, 1991 to April, 1992. On this ground alone, Judge Moscardon was perfectly justified in issuing the writ of execution and respondent sheriffs in implementing the same. Of these legal considerations, Atty. Sabio could not have been unaware.

The records, furthermore, do not sustain Atty. Sabio's representations with respect to the application of the P12,000.00 which complainants supposedly deposited with the court a quo. Atty. Sabio insists that said amount was intended to answer for monthly rentals falling due after the rendition of the decision of the Municipal Trial Court. This, however, runs contrary to the facts obtaining in this case. The decisions of the Municipal Trial Court and the Court of Appeals are silent on this point except for a statement found in the higher court's decision that "this Court, in its Resolution dated October 9, 1992, ordered petitioner to present proof of subsequent payments made." Also, in the order of Judge Moscardon dated October 1, 1992, she stated that "the record does not show that the defendants had likewise paid the periodical rentals." Also, in the complaint filed in this administrative matter, it is alleged that the defendant consigned the rentals from May, 1991 until April, 1992 in the amount of P12,000.00.


In view of these conflicting statements of complainants, plus the fact that there is not enough evidence on hand, we are prevented from making a specific determination thereon. Nevertheless, whether or not periodic rental payments were made during the pendency of the appeal no longer carries any weight in view of our earlier finding that execution could not be legally stayed by reason of the admittedly belated filing of the purported supersedeas bond.

Complainants further contend that the Regional Trial Court had no jurisdiction to issue the writ of execution allegedly because it should have forwarded the records of the case to the court of origin for proper implementation. The argument is specious. The Municipal Trial Court may issue execution immediately after judgment if no action was taken therefrom by defendants. But, after the perfection of the appeal, it is obvious that the jurisdiction over the controversy had passed to the Regional Trial Court, hence the properly filed in and granted by the latter court. 11

2. Anent the issue on the legality of the alias writ of execution issued by Judge Labayen, Atty. Sabio avers that the same is void for the reason that he was not furnished a copy of the order, dated April 21, 1993, which granted the motion for alias writ of execution. He further insists that the same was issued despite the fact that the decision of the Court of Appeals had not yet become final and executory since it was still pending review before the Supreme Court.

Under Section 10 of Rule 70, an appeal to the Court of Appeals or the Supreme Court shall likewise not be stayed unless the appellants deposit the amount of rent due from time to time. In the case at bar, no proof has been presented to show that the monthly rentals which fell due after the rendition of the trial court's decision had been duly paid. Assuming arguendo, as claimed by Atty. Sabio, that the P12,000.00 deposited with the Regional Trial Court should answer for said rentals, the same was not sufficient to cover rentals due during the entire pendency of the case before the Court of Appeals and the Supreme Court. At most, such amount could apply only to rental payments from May, 1992 to December, 1992. Of these facts, again, Atty. Sabio could not have been completely oblivious.

The Court of Appeals rendered its decision on March 31, 1993 and there is absolutely nothing in the records to show that herein complainants made further payments aside from the P12,000.00 and P18,000.00 deposited with the Municipal Trial Court and the Regional Trial Court, respectively. In addition, Atty. Sabio does not refute, and in fact it is admitted in paragraph 6 of the complaint filed in this administrative matter, that complainants reentered and remained in possession of the premises, and it appears that they continued to do so despite the prior implementation of the original writ of execution. Verily, this time for failure of complainants to make periodic deposits during the pendency of the appeal and their continued occupancy of the premises, the issuance of thealias writ of execution was a ministerial and mandatory duty of respondent judges.

Atty. Sabio likewise claims that execution could not issue because he was not served a copy of the order dated April 21, 1993 12 which granted the motion for alias writ of execution. He rationalizes that:

. . . The fact is that, a copy of the Order dated April 21, 1993 was not furnished the defendant's counsel.

Truth to tell, this is exactly the ground why undersigned counsel filed his Urgent Motion to Lift AliasWrit of Execution, . . . .

It is therefore clear that the Alias Writ of Execution dated April 26, 1993 issued by the defendant Clerk of Court, Gia L. Aranday, was improperly issued, considering that the Order of the court granting the Motion for Issuance of Writ of Execution dated April 21, 1993 was not furnished the undersigned counsel, and, it is only through the resourcefulness of the undersigned of following-up this case that he came to know of the said Order dated April 21, 1993.

Undersigned counsel found himself in an embarrassing situation, when he was confronted by his clients that the Alias Writ of Execution dated April 26, 1993 was issued without his knowledge of the prior Court Order dated April 21, 1993.

It is in this respect, that undersigned honestly believed that he has a well grounded complaint against respondents Clerk of Court and process server for their negligent act. (Emphasis in the original text.) 13

That bad faith attended the filing of this administrative charge was unwittingly disclosed by the aforequoted allegations of Atty. Sabio in his compliance. No ratiocination was proffered by him nor did he invoke any authority of law or jurisprudence, since decidedly there is none, to support his theory that execution should not issue where the adverse party is not served a copy of the


order even where the grant thereof had become a matter of right. The inescapable conclusion, therefore, is that the filing of the present complaint was, at the very least, ill-conceived and malicious, and was resorted to as a last-ditch effort and a face-saving recourse of counsel.

It is worth noting that the administrative complaint was filed against herein respondents only after the Court of Appeals had rendered a decision in favor of plaintiffs. This in itself is already a clear indication that the acts of respondents are valid and legal. Yet, Atty. Sabio persisted in instituting these baseless charges against respondents to their proven prejudice. 14 As correctly observed by the Bar Confidant, under the given circumstances, it is apparent that complainants decided to institute the present case only on the advice and/or upon the urging of Atty. Sabio. It also bears stressing that respondent Judge Labayen even waited for the Court of Appeals' decision before acting on the motion for an alias writ of execution of plaintiffs, if only to obviate any imputation of bias or partiality.

We are fully convinced that, despite the misleading assertions of Atty. Sabio, the issuance of the writ of execution was done in the valid and judicious exercise of the functions and duties of respondent judges. We have carefully examined and analyzed the procedure adopted by respondents in the issuance and enforcement of the questioned writs. It would be the height of injustice were we to impose any sanction on them for complying faithfully with the procedural mandate of the rules governing the matter.

The Court would like to call attention again to the reprehensible propensity of disgruntled litigants, most especially their counsel, of filing totally baseless and unfounded charges against judges and court personnel in a vain attempt to escape the dire consequences of their own negligence or in an effort to transgress the lawful orders of the court. Judges and court personnel should be protected from unjust accusations of dissatisfied litigants, abetted by counsel who seek thereby to camouflage their shortcomings. Besides, it goes without saying that mere suspicion that a judge is partial to one of the parties to the case is not enough. There should be evidence to prove the charge, 15 which is obviously absent in the case at bar.

As an officer of the court, a lawyer has the sworn duty to assist in, not to impede or pervert, the administration of justice. The present administrative charge seeks to cast doubt on the integrity of respondent judges, the judicial personnel and the court which they represent, in flagrant abdication of the bounden responsibility of a lawyer to observe and maintain the respect due to courts of justice. Atty. Sabio thus deserves to be punished for instigating the filing of an administrative complaint by his clients, in the guise of upholding their rights but actually to frustrate the enforcement of lawful court orders and consequently obstruct the desirable norms and course of justice.

WHEREFORE, Atty. Salvador T. Sabio is hereby SUSPENDED from the practice of law for a period of SIX (6) MONTHS, effective upon his receipt of a copy of this decision. He is warned that a more severe sanction shall be imposed should he commit another administrative offense. Let copies hereof be attached to his record and served on the Bar Confidant, the Integrated Bar of the Philippines, and on all courts of the land.

SO ORDERED.




Manila

SECOND DIVISION

A.C. No, 6854 April 25, 2007[Formerly CBD Case No. 04-1380]

JUAN DULALIA, JR., Complainant, vs.ATTY. PABLO C. CRUZ, Respondent.

D E C I S I O N

CARPIO MORALES, J.:

Atty. Pablo C. Cruz, Municipal Legal Officer of Meycauayan, Bulacan (respondent), is charged by Juan Dulalia, Jr. (complainant) of violation Rules 1.01,1 6.02,2 and 7.033 of the Code of Professional Responsibility.

The facts which gave rise to the filing of the present complaint are as follows:

Complainant’s wife Susan Soriano Dulalia filed an application for building permit for the construction of a warehouse. Despite compliance with all the requirements for the purpose, she failed to secure a permit, she attributing the same to the opposition of respondents who wrote a September 13, 2004 letter to Carlos J. Abacan, Municipal Engineer and concurrent Building Official of Meycauayan, reading as follows, quoted verbatim:

x x x x

This is in behalf of the undersigned himself and his family, Gregoria F. Soriano, Spouses David Perez and Minerva Soriano-Perez and Family and Mr. and Mrs. Jessie de Leon and family, his relatives and neighbors.

It has been more than a month ago already that the construction of the building of the abovenamed person has started and that the undersigned and his family, and those other families mentioned above are respective owners of the residential houses adjoining that of the high-rise building under construction of the said Mrs. Soriano-Dulalia. There is no need to mention the unbearable nuisances that it creates and its adverse effects to the undersigned and his above referred to clients particularly the imminent danger and damage to their properties, health and safety.

It was represented that the intended construction of the building would only be a regular and with standard height building and not a high rise one but an inspection of the same would show otherwise. Note that its accessory foundation already occupies portion of the vacant airspace of the undersigned’s residential house in particular, which readily poses danger to their residential house and life.

To avert the occurrence of the above danger and damage to property, loss of life and for the protection of the safety of all the people concerned, they are immediately requesting for your appropriate action on the matter please at your earliest opportune time.

Being your co-municipal official in the Municipal Government of Meycauayan who is the Chief Legal Counsel of its Legal Department, and by virtue of Sub par. (4), Paragraph (b), Section 481 of the Local Government Code of 1991, he is inquiring if there was already full compliance on the part of the owner of the Building under construction with the requirements provided for in Sections 301, 302 and 308 of the National Building Code and on the part of your good office, your compliance with the provisions of Sections 303 and 304 of the same foregoing cited Building Code.Cases in Legal Ethics Bachelor of Laws 3A 21

http://www.lawphil.net/judjuris/juri2007/apr2007/ac_6854_2007.html#fnt3



Please be reminded of the adverse and unfavorable legal effect of the non-compliance with said Sections 301, 302, 303 and 304 of the National Building Code by all the parties concerned. (Which are not confined only to penalties provided in Sections 211 and 212 thereof.)

x x x x4 (Emphasis and underscoring partly in the original, partly supplied)

By complainant’s claim, respondent opposed the application for building permit because of a personal grudge against his wife Susan who objected to respondent’s marrying her first cousin Imelda Soriano, respondent’s marriage with Carolina Agaton being still subsisting.5

To the complaint, complainant attached a copy of his Complaint Affidavit6 he filed against respondent before the Office of the Ombudsman for violation of Section 3 (e)7 of Republic Act No. 3019, as amended (The Anti-Graft and Corrupt Practices Act) and Section 4 (a) and (c)8 of Republic Act No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees).9

By Report and Recommendation dated May 6, 2005,10 the IBP Commission on Bar Discipline, through Commissioner Rebecca Villanueva-Maala, recommended the dismissal of the complaint in light of the following findings:

The complaint dealt with mainly on the issue that respondent allegedly opposes the application of his wife for a building permit for the construction of their commercial building. One of the reason[s] stated by the complainant was that his wife was not in favor of Imelda’s relationship with respondent who is a married man. And the other reason is that respondent was not authorized to represent his neighbors in opposing the construction of his building.

From the facts and evidence presented, we find respondent to have satisfactorily answered all the charges and accusations of complainant. We find no clear, convincing and strong evidence to warrant the disbarment or suspension of respondent. An attorney enjoys the legal presumption that he is innocent of the charges preferred against him until the contrary is proved. The burden of proof rests upon the complainant to overcome the presumption and establish his charges by a clear preponderance of evidence. In the absence of the required evidence, the presumption of innocence on the part of the lawyer continues and the complaint against him should be dismissed (In re De Guzman, 55 SCRA 1239; Balduman vs. Luspo, 64 SCRA 74; Agbayani vs. Agtang, 73 SCRA 283).

x x x x.11 (Underscoring supplied)

By Resolution of June 25, 2005,12 the Board of Governors of the IBP adopted and approved the Report and Recommendation of Commissioner Villanueva-Maala.

Hence, the present Petition for Review13 filed by complainant.

Complainant maintains that respondent violated Rule 1.01 when he contracted a second marriage with Imelda Soriano on September 17, 1989 while his marriage with Carolina Agaton, which was solemnized on December 17, 1967, is still subsisting.

Complainant further maintains that respondent used his influence as the Municipal Legal Officer of Meycauayan to oppose his wife’s application for building permit, in violation of Rule 6.02 of the Code of Professional Responsibility.

And for engaging in the practice of law while serving as the Municipal Legal Officer of Meycauayan, complainant maintains that respondent violated Rule 7.03.

To his Comment,14 respondent attached the July 29, 200515 Joint Resolution of the Office of the Deputy Ombudsman for Luzon dismissing complainant’s complaint for violation of Sec. 3 (e) of RA 3019 and Section 4 (a) and (c) of RA 6713, the pertinent portion of which joint resolution reads:

x x x A perusal of the questioned letter dated September 13, 2004 of herein respondent Atty. Pablo Cruz addressed to the Building official appears to be not an opposition for the issuance of complainant’s building permit, but rather to redress a wrong and an inquiry as to whether compliance with the requirements for the construction of an edifice has been met. In fact, the Office of the Building Official after conducting an investigation found out that there was [a] violation of the Building Code for constructing without a building permit committed by herein complainant’s wife Susan Dulalia. Hence, a Work Stoppage Order was issued. Records disclose fu[r]ther [that] it was only after the said violation had been committed that Susan Dulalia applied for a building permit. As correctly pointed out by respondent, the same is being processed pending approval by the Building Official and not of the Municipal Cases in Legal Ethics Bachelor of Laws 3A 22













Zoning Administrator as alleged by complainant. Anent the allegation that respondent was engaged in the private practice of his law profession despite being employed in the government as Municipal Legal Officer of Meycauayan, Bulacan, the undersigned has taken into consideration the explanation and clarification made by the respondent to be justifiable and meritorious. Aside from the bare allegations of herein complainant, there is no sufficient evidence to substantiate the complaints against the respondent. 16 (Underscoring supplied)

After a review of the record of the case, this Court finds the dismissal of the charges of violating Rules 6.02 and 7.03 in order.

Indeed, complaint failed to prove that respondent used his position as Municipal Legal Officer to advance his own personal interest against complainant and his wife.

As for respondent’s September 13, 2004 letter, there is nothing to show that he opposed the application for building permit. He just inquired whether complainant’s wife fully complied with the requirements provided for by the National Building Code, on top of expressing his concerns about "the danger and damages to their properties, health and safety" occasioned by the construction of the building.

Besides, as reflected above, the application for building permit was filed on September 28, 2004,17 whereas the questioned letter of respondent was priorly written and received on September 13, 2004 by the Municipal Engineer/ Building Official, who on the same day, ordered an inspection and issued a Cease and Desist Order/Notice stating that "[f]ailure to comply with th[e] notice shall cause this office to instate proper legal action against you."18

Furthermore, as the Certification dated April 4, 200519 from the Office of the Municipal Engineer showed, complainant’s wife eventually withdrew the application as she had not yet secured clearances from the Municipal Zoning Administrator and from the barangay where the building was to be constructed.

Respecting complainant’s charge that respondent engaged in an unauthorized private practice of law while he was the Municipal Legal Officer of Meycauayan, a position coterminous to that of the appointing authority, suffice it to state that respondent proffered proof that his private practice is not prohibited.20

It is, however, with respect to respondent’s admitted contracting of a second marriage while his first marriage is still subsisting that this Court finds respondent liable, for violation of Rule 1.01 of the Code of Professional Responsibility.

Respondent married Imelda Soriano on September 17, 1989 at the Clark County, Nevada, USA, 21 when the Family Code of the Philippines had already taken effect.22 He invokes good faith, however, he claiming to have had the impression that the applicable provision at the time was Article 83 of the Civil Code.23 For while Article 256 of the Family Code provides that the Code shall have retroactive application, there is a qualification thereunder that it should not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws.

Immoral conduct which is proscribed under Rule 1.01 of the Code of Professional Responsibility, as opposed to grossly immoral conduct, connotes "conduct that shows indifference to the moral norms of society and the opinion of good and respectable members of the community."24 Gross immoral conduct on the other hand must be so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree.25

In St. Louis University Laboratory High School v. De la Cruz,26 this Court declared that the therein respondent’s act of contracting a second marriage while the first marriage was still subsisting constituted immoral conduct, for which he was suspended for two years after the mitigating following circumstances were considered:

a. After his first failed marriage and prior to his second marriage or for a period of almost seven (7) years, he has not been romantically involved with any woman;

b. His second marriage was a show of his noble intentions and total love for his wife, whom he described to be very intelligent person;

c. He never absconded from his obligations to support his wife and child;

d. He never disclaimed paternity over the child and husbandry (sic) with relation to his wife;Cases in Legal Ethics Bachelor of Laws 3A 23












e. After the annulment of his second marriage, they have parted ways when the mother and child went to Australia;

f. Since then up to now, respondent remained celibate.27

In respondent’s case, he being out of the country since 1986, he can be given the benefit of the doubt on his claim that Article 83 of the Civil Code was the applicable provision when he contracted the second marriage abroad. From 1985 when allegedly his first wife abandoned him, an allegation which was not refuted, until his marriage in 1989 with Imelda Soriano, there is no showing that he was romantically involved with any woman. And, it is undisputed that his first wife has remained an absentee even during the pendency of this case.

As noted above, respondent did not deny he contracted marriage with Imelda Soriano. The community in which they have been living in fact elected him and served as President of the IBP-Bulacan Chapter from 1997-1999 and has been handling free legal aid cases.

Respondent’s misimpression that it was the Civil Code provisions which applied at the time he contracted his second marriage and the seemingly unmindful attitude of his residential community towards his second marriage notwithstanding, respondent may not go scotfree.

As early as 1957, this Court has frowned on the act of contracting a second marriage while the first marriage was still in place as being contrary to honesty, justice, decency and morality.28

In another vein, respondent violated Canon 5 of the Code of Professional Responsibility which provides:

CANON 5 – A lawyer shall keep abreast of legal developments, participate in continuing legal education programs, support efforts to achieve high standards in law schools as well as in the practical training of law students and assist in disseminating information regarding the law and jurisprudence.

Respondent’s claim that he was not aware that the Family Code already took effect on August 3, 1988 as he was in the United States from 1986 and stayed there until he came back to the Philippines together with his second wife on October 9, 1990 does not lie, as "ignorance of the law excuses no one from compliance therewith."

Apropos is this Court’s pronouncement in Santiago v. Rafanan:29

It must be emphasized that the primary duty of lawyers is to obey the laws of the land and promote respect for the law and legal processes. They are expected to be in the forefront in the observance and maintenance of the rule of law. This duty carries with it the obligation to be well-informed of the existing laws and to keep abreast with legal developments, recent enactments and jurisprudence. It is imperative that they be conversant with basic legal principles. Unless they faithfully comply with such duty, they may not be able to discharge competently and diligently their obligations as members of the bar. Worse, they may become susceptible to committing mistakes.30 (Emphasis and underscoring supplied)

WHEREFORE, respondent Atty. Pablo C. Cruz is guilty of violating Rule 1.01 and Canon 5 of the Code of Professional Responsibility and is SUSPENDED from the practice of law for one year. He is WARNED that a similar infraction will be dealt with more severely.

Let a copy of this Decision be furnished the Office of the Bar Confidant, the Integrated Bar of the Philippines, and all courts throughout the country.

SO ORDERED.







FIRST DIVISION SPOUSES DAVID and A.C. No. 6353 MARISA WILLIAMS,

Complainants, Present: PANGANIBAN, C.J., Chairperson, YNARES-SANTIAGO, - versus - AUSTRIA-MARTINEZ,

CALLEJO, SR., and CHICO-NAZARIO, JJ. ATTY. RUDY T. ENRIQUEZ, Promulgated:

Respondent. February 27, 2006

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x R E S O L U T I O N CALLEJO, SR., J.:

Atty. Rudy T. Enriquez stands charged with “unlawful, dishonest, immoral and deceitful acts in violation of the Code of

Professional Responsibility and the Canons of Professional Ethics, and with conduct unbecoming an attorney.” The charges are contained in the Joint Complaint-Affidavit for Disbarment[1] filed by the spouses David W. Williams and Marisa B. Williams.

It appears that respondent is the counsel of record of the plaintiffs in Civil Case No. 13443 [2] pending before the Regional

Trial Court, Branch 33, Dumaguete City where complainants are the defendants. According to the complainant-spouses, Marisa Williams bought the lot subject of the controversy. A Transfer Certificate of Title (TCT) was then issued in her favor, stating that she is “Filipino, married to David W. Williams, an American citizen.”[3] On January 8, 2004, respondent charged her with falsification of public documents before the Office of the City Prosecutor of Dumaguete City. The complaint was docketed as I.S. No. 2004-34.[4]

The spouses Williams further alleged, thus:

21. That, in malicious violation of the rules governing the practice of law, Attorney Rudy T. Enriquez cited

outdated material in his complaint-affidavit (Annex A-1) and in his comments to counter-affidavit (Annex A-2). He then knowingly applied this stale law in a perverse fashion to argue that Marisa Batacan Williams automatically lost her Filipino citizenship when she married an American, and was thus prohibited to own land in the Philippines, thereby making her guilty of falsification in the Deed she executed to buy property in Negros Oriental.

2.2. That in paragraph #1 of her counter-affidavit (Annex A-2) Marisa cites Article IV, Section 4 of the

1987 Constitution, which provides that she would not lose her citizenship when she married an American unless she renounced it in a specific act.

2.3 That, in reply, Attorney Enriquez, quotes more outdated law, declaring that her “act of marrying” her

husband was equivalent to renouncing her citizenship. He also doggedly attempts to show that the 1987 Constitution supports his position, not Marisa’s (Annex A-4).[5]


Complainants pointed out that the respondent is a retired judge, who knows that the false charge (that Marisa Williams is

an American) “will not prevail in the end.”[6]

In his “Comments by Way of Motion to Dismiss,”[7] respondent enumerated matters which to his mind were evidence of the

acts of falsification of complainant Marisa Williams. He insisted that the complaint for disbarment was a mere tactic to divert attention from the criminal charges against the complainants, and that the charges against him were bereft of any factual basis.

On December 1, 2004, the case was referred to the Integrated Bar of the Philippines (IBP) for investigation, report and

recommendation.[8] Forthwith, the IBP Commission on Bar Discipline scheduled the case for mandatory conference/hearing. However, only the respondent appeared. The parties were then directed to submit their verified position papers.

In their Position Paper, complainants claimed that respondent had maliciously and knowingly filed fabricated cases against

them and that his acts were forms of attempted extortion. They also adopted their joint complaint-affidavit by way of incorporation, along with their other pleadings.

For his part, respondent maintained that complainant Marisa Williams was no longer a citizen of the Republic of

the Philippines as a result of her marriage to David Williams. In her Report and Recommendation dated June 10, 1995, Commissioner Rebecca Villanueva-Maala ruled that respondent

was guilty of gross ignorance of the law and should be suspended for six (6) months. The IBP Commission on Bar Discipline adopted the foregoing recommendation in its Resolution No. XVII-2005-114 dated October 22, 2005, with the modification that respondent be “reprimanded, with a warning and advice to study each and every opinion he may give to his clients.”

The Court agrees that respondent is administratively liable for his actuations. As found by the Investigating Commissioner:

There is no evidence shown by respondent that complainant Marisa Bacatan-Williams has renounced her Filipino citizenship except her Certificate of Marriage, which does not show that she has automatically acquired her husband’s citizenship upon her marriage to him. The cases cited by respondent are not applicable in this case as it is clear that they refer to aliens acquiring lands in the Philippines.

The Bar has been integrated for the attainment of the following objectives: (a) elevate the standards of

the legal profession, (b) improve the administration of justice, and (c) to enable the bar to discharge its public responsibility more effectively (In re: Integration of the Bar of the Philippines, 49 SCRA 22). In line with these objectives of the Integrated Bar, lawyers must keep themselves abreast of legal developments. To do this, the lawyer must walk with the dynamic movements of the law and jurisprudence. He must acquaint himself at least with the newly promulgated laws, the recent decisions of the Supreme Court and of the significant decisions of the Court of Appeals. There are other executive orders, administrative circulars, regulations and other rules promulgated by other competent authorities engaged in the administration of justice. The lawyer’s life is one of continuous and laborious study, otherwise, his skill and knowledge of the law and related disciplines will lag behind and become obscure due to obsoleteness (Canon 5, Code of Professional Responsibility.)[9]

As pointed out by the Investigating Commissioner, Canon 5 of the Code of Professional Responsibility requires that a lawyer

be updated in the latest laws and jurisprudence.[10] Indeed, when the law is so elementary, not to know it or to act as if one does not know it constitutes gross ignorance of the law.[11] As a retired judge, respondent should have known that it is his duty to keep himself well-informed of the latest rulings of the Court on the issues and legal problems confronting a client. [12] In this case, the law he apparently misconstrued is no less than the Constitution, [13] the most basic law of the land.[14] Implicit in a lawyer’s mandate to protect a client’s interest to the best of his/her ability and with utmost diligence is the duty to keep abreast of the law and legal developments, and participate in continuing legal education programs. [15] Thus, in championing the interest of clients and defending cases, a lawyer must not only be guided by the strict standards imposed by the lawyer’s oath, but should likewise espouse legally sound arguments for clients, lest the latter’s cause be dismissed on a technical ground.[16] Ignorance encompasses both substantive and procedural laws.[17]

We find too harsh the recommended penalty of the Investigating Commissioner. It must be stressed that the power to

disbar or suspend must be exercised with great caution. Only in a clear case of misconduct that seriously affects the standing and character of a lawyer as an officer of the Court and member of the bar will disbarment or suspension be imposed as a penalty.Cases in Legal Ethics Bachelor of Laws 3A 26

[18] Pursuant to the IBP Commission on Bar Discipline’s Guidelines for Imposing Lawyer Sanctions, [19] and considering further that this is respondent’s first infraction, we find that the penalty of reprimand as recommended by the IBP Commission on Bar Discipline, will suffice.

We likewise note that in their pleadings in this case, the parties repeatedly invoked their arguments in their pending cases

below. Thus, we find it unnecessary to rule over such arguments, which have yet to be determined on the merits in the courts a quo.

WHEREFORE, for gross ignorance of the law, Atty. Rudy T. Enriquez is REPRIMANDED and ADVISED to carefully study the opinions he may give to his clients. He is STERNLY WARNED that a repetition of a similar act shall be dealt with more severely.

SO ORDERED.




Manila

THIRD DIVISION

A.C. No. 6252 October 5, 2004

JONAR SANTIAGO, complainant, vs.Atty. EDISON V. RAFANAN, respondent.

D E C I S I O N

PANGANIBAN, J.:

Notaries public are expected to exert utmost care in the performance of their duties, which are impressed with public interest. They are enjoined to comply faithfully with the solemnities and requirements of the Notarial Law. This Court will not hesitate to mete out appropriate sanctions to those who violate it or neglect observance thereof.

The Case and the Facts

Before us is a verified Complaint1 filed by Jonar Santiago, an employee of the Bureau of Jail Management and Penology (BJMP), for the disbarment of Atty. Edison V. Rafanan. The Complaint was filed with the Commission on Bar Discipline (CBD) of the Integrated Bar of the Philippines (IBP) on January 16, 2001. It charged Atty. Rafanan with deceit; malpractice or other gross misconduct in office under Section 27 of Rule 1382 of the Rules of Court; and violation of Canons 1.01, 1.02 and 1.033, Canon 54, and Canons 12.075 and 12.08 of the Code of Professional Responsibility (CPR).

In his Report, IBP Investigating Commissioner Leland R. Villadolid Jr. summarized the allegations of the complainant in this wise:

"x x x. In his Letter-Complaint, Complainant alleged, among others, that Respondent in notarizing several documents on different dates failed and/or refused to: a)make the proper notation regarding the cedula or community tax certificate of the affiants; b) enter the details of the notarized documents in the notarial register; and c) make and execute the certification and enter his PTR and IBP numbers in the documents he had notarized, all in violation of the notarial provisions of the Revised Administrative Code.

"Complainant likewise alleged that Respondent executed an Affidavit in favor of his client and offered the same as evidence in the case wherein he was actively representing his client. Finally, Complainant alleges that on a certain date, Respondent accompanied by several persons waited for Complainant after the hearing and after confronting the latter disarmed him of his sidearm and thereafter uttered insulting words and veiled threats."6

On March 23, 2001, pursuant to the January 19, 2001 Order of the CBD,7 Atty. Rafanan filed his verified Answer.8He admitted having administered the oath to the affiants whose Affidavits were attached to the verified Complaint. He believed, however, that the non-notation of their Residence Certificates in the Affidavits and the Counter-affidavits was allowed.

He opined that the notation of residence certificates applied only to documents acknowledged by a notary public and was not mandatory for affidavits related to cases pending before courts and other government offices. He pointed out that in the latter, the affidavits, which were sworn to before government prosecutors, did not have to indicate the residence certificates of the affiants. Neither did other notaries public in Nueva Ecija -- some of whom were older practitioners -- indicate the affiants’ residence certificates on the documents they notarized, or have entries in their notarial register for these documents.


As to his alleged failure to comply with the certification required by Section 3 of Rule 112 9 of the Rules of Criminal Procedure, respondent explained that as counsel of the affiants, he had the option to comply or not with the certification. To nullify the Affidavits, it was complainant who was duty-bound to bring the said noncompliance to the attention of the prosecutor conducting the preliminary investigation.

As to his alleged violation of Rule 12.08 of the CPR, respondent argued that lawyers could testify on behalf of their clients "on substantial matters, in cases where [their] testimony is essential to the ends of justice." Complainant charged respondent’s clients with attempted murder. Respondent averred that since they were in his house when the alleged crime occurred, "his testimony is very essential to the ends of justice."

Respondent alleged that it was complainant who had threatened and harassed his clients after the hearing of their case by the provincial prosecutor on January 4, 2001. Respondent requested the assistance of the Cabanatuan City Police the following day, January 5, 2001, which was the next scheduled hearing, to avoid a repetition of the incident and to allay the fears of his clients. In support of his allegations, he submitted Certifications10 from the Cabanatuan City Police and the Joint Affidavit11 of the two police officers who had assisted them.

Lastly, he contended that the case had been initiated for no other purpose than to harass him, because he was the counsel of Barangay Captain Ernesto Ramos in the cases filed by the latter before the ombudsman and the BJMP against complainant.

After receipt of respondent’s Answer, the CBD, through Commissioner Tyrone R. Cimafranca, set the case for hearing on June 5, 2001, at two o’clock in the afternoon. Notices12 of the hearing were sent to the parties by registered mail. On the scheduled date and time of the hearing, only complainant appeared. Respondent was unable to do so, apparently because he had received the Notice only on June 8, 2001.13 The hearing was reset to July 3, 2001 at two o’clock in the afternoon.

On the same day, June 5, 2001, complainant filed his Reply14 to the verified Answer of respondent. The latter’s Rejoinder was received by the CBD on July 13, 2001.15 It also received complainant’s Letter-Request16 to dispense with the hearings. Accordingly, it granted that request in its Order17 dated July 24, 2001, issued through Commissioner Cimafranca. It thereby directed the parties to submit their respective memoranda within fifteen days from receipt of the Order, after which the case was to be deemed submitted for resolution.

The CBD received complainant’s Memorandum18 on September 26, 2001. Respondent did not file any.

The IBP’s Recommendation

On September 27, 2003, the IBP Board of Governors issued Resolution No. XVI-2003-172 19 approving and adopting the Investigating Commissioner’s Report that respondent had violated specific requirements of the Notarial Law on the execution of a certification, the entry of such certification in the notarial register, and the indication of the affiant’s residence certificate. The IBP Board of Governors found his excuse for the violations unacceptable. It modified, however, the recommendation 20 of the investigating commissioner by increasing the fine to "P3,000 with a warning that any repetition of the violation will be dealt with a heavier penalty."

The other charges -- violation of Section 27 of Rule 138 of the Rules of Court; and Canons 1.01 to 1.03, 12.07 and 12.08 of the CPR -- were dismissed for insufficiency of evidence.

The Court’s Ruling

We agree with the Resolution of the IBP Board of Governors.

Respondent’s Administrative Liability

Violation of the Notarial Law

The Notarial Law is explicit on the obligations and duties of notaries public. They are required to certify that the party to every document acknowledged before them has presented the proper residence certificate (or exemption from the residence tax); and to enter its number, place of issue and date as part of such certification.21 They are also required to maintain and keep a notarial register; to enter therein all instruments notarized by them; and to "give to each instrument executed, sworn to, or acknowledged Cases in Legal Ethics Bachelor of Laws 3A 29

before [them] a number corresponding to the one in [their] register [and to state therein] the page or pages of [their] register, on which the same is recorded."22Failure to perform these duties would result in the revocation of their commission as notaries public.23

These formalities are mandatory and cannot be simply neglected, considering the degree of importance and evidentiary weight attached to notarized documents. Notaries public entering into their commissions are presumed to be aware of these elementary requirements.

In Vda. de Rosales v. Ramos,24 the Court explained the value and meaning of notarization as follows:

"The importance attached to the act of notarization cannot be overemphasized. 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. Notarization converts a private document into a public document thus making that document admissible in evidence without further proof of its authenticity. A notarial document is by law entitled to full faith and credit upon its face. 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."

For this reason, notaries public should not take for granted the solemn duties pertaining to their office. Slipshod methods in their performance of the notarial act are never to be countenanced. They are expected to exert utmost care in the performance of their duties,25 which are dictated by public policy and are impressed with public interest.

It is clear from the pleadings before us -- and respondent has readily admitted -- that he violated the Notarial Law by failing to enter in the documents notations of the residence certificate, as well as the entry number and the pages of the notarial registry.

Respondent believes, however, that noncompliance with those requirements is not mandatory for affidavits relative to cases pending before the courts and government agencies. He points to similar practices of older notaries in Nueva Ecija.

We cannot give credence to, much less honor, his claim. His belief that the requirements do not apply to affidavits is patently irrelevant. No law dispenses with these formalities. Au contraire, the Notarial Law makes no qualification or exception. It is appalling and inexcusable that he did away with the basics of notarial procedure allegedly because others were doing so. Being swayed by the bad example of others is not an acceptable justification for breaking the law.

We note further that the documents attached to the verified Complaint are the Joint Counter-Affidavit of respondent’s clients Ernesto Ramos and Rey Geronimo, as well as their witnesses’ Affidavits relative to Criminal Case No. 69-2000 for attempted murder, filed by complainant’s brother against the aforementioned clients. These documents became the basis of the present Complaint.

As correctly pointed out by the investigating commissioner, Section 3 of Rule 112 of the Rules of Criminal Procedure expressly requires respondent as notary -- in the absence of any fiscal, state prosecutor or government official authorized to administer the oath -- to "certify that he has personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits." Respondent failed to do so with respect to the subject Affidavits and Counter-Affidavits in the belief that -- as counsel for the affiants -- he was not required to comply with the certification requirement.

It must be emphasized that the primary duty of lawyers is to obey the laws of the land and promote respect for the law and legal processes.26 They are expected to be in the forefront in the observance and maintenance of the rule of law. This duty carries with it the obligation to be well-informed of the existing laws and to keep abreast with legal developments, recent enactments and jurisprudence.27 It is imperative that they be conversant with basic legal principles. Unless they faithfully comply with such duty, they may not be able to discharge competently and diligently their obligations as members of the bar. Worse, they may become susceptible to committing mistakes.

Where notaries public are lawyers, a graver responsibility is placed upon them by reason of their solemn oath to obey the laws.28 No custom or age-old practice provides sufficient excuse or justification for their failure to adhere to the provisions of the law. In this case, the excuse given by respondent exhibited his clear ignorance of the Notarial Law, the Rules of Criminal Procedure, and the importance of his office as a notary public.

Nonetheless, 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.29 Disbarment will be imposed as a penalty only in a clear case of misconduct that seriously affects the standing and the character of the lawyer as an officer of the court and a member of the bar. Where any lesser penalty can


accomplish the end desired, disbarment should not be decreed.30 Considering the nature of the infraction and the absence of deceit on the part of respondent, we believe that the penalty recommended by the IBP Board of Governors is a sufficient disciplinary measure in this case.

Lawyer as Witness for Client

Complainant further faults respondent for executing before Prosecutor Leonardo Padolina an affidavit corroborating the defense of alibi proffered by respondent’s clients, allegedly in violation of Rule 12.08 of the CPR: "A lawyer shall avoid testifying in behalf of his client."

Rule 12.08 of Canon 12 of the CPR states:

"Rule 12.08 – A lawyer shall avoid testifying in behalf of his client, except:

a) on formal matters, such as the mailing, authentication or custody of an instrument and the like;

b) on substantial matters, in cases where his testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel."

Parenthetically, under the law, a lawyer is not disqualified from being a witness,31 except only in certain cases pertaining to privileged communication arising from an attorney-client relationship.32

The reason behind such rule is the difficulty posed upon lawyers by the task of dissociating their relation to their clients as witnesses from that as advocates. Witnesses are expected to tell the facts as they recall them. In contradistinction, advocates are partisans -- those who actively plead and defend the cause of others. It is difficult to distinguish the fairness and impartiality of a disinterested witness from the zeal of an advocate. The question is one of propriety rather than of competency of the lawyers who testify for their clients.

"Acting or appearing to act in the double capacity of lawyer and witness for the client will provoke unkind criticism and leave many people to suspect the truthfulness of the lawyer because they cannot believe the lawyer as disinterested. The people will have a plausible reason for thinking, and if their sympathies are against the lawyer’s client, they will have an opportunity, not likely to be neglected, for charging, that as a witness he fortified it with his own testimony. The testimony of the lawyer becomes doubted and is looked upon as partial and untruthful."33

Thus, although the law does not forbid lawyers from being witnesses and at the same time counsels for a cause, the preference is for them to refrain from testifying as witnesses, unless they absolutely have to; and should they do so, to withdraw from active management of the case.34

Notwithstanding this guideline and the existence of the Affidavit executed by Atty. Rafanan in favor of his clients, we cannot hastily make him administratively liable for the following reasons:

First, we consider it the duty of a lawyer to assert every remedy and defense that is authorized by law for the benefit of the client, especially in a criminal action in which the latter’s life and liberty are at stake.35 It is the fundamental right of the accused to be afforded full opportunity to rebut the charges against them. They are entitled to suggest all those reasonable doubts that may arise from the evidence as to their guilt; and to ensure that if they are convicted, such conviction is according to law.

Having undertaken the defense of the accused, respondent, as defense counsel, was thus expected to spare no effort to save his clients from a wrong conviction. He had the duty to present -- by all fair and honorable means -- every defense and mitigating circumstance that the law permitted, to the end that his clients would not be deprived of life, liberty or property, except by due process of law.36

The Affidavit executed by Atty. Rafanan was clearly necessary for the defense of his clients, since it pointed out the fact that on the alleged date and time of the incident, his clients were at his residence and could not have possibly committed the crime charged against them. Notably, in his Affidavit, complainant does not dispute the statements of respondent or suggest the falsity of its contents.Cases in Legal Ethics Bachelor of Laws 3A 31

Second, paragraph (b) of Rule 12.08 contemplates a situation in which lawyers give their testimonies during the trial. In this instance, the Affidavit was submitted during the preliminary investigation which, as such, was merely inquisitorial.37 Not being a trial of the case on the merits, a preliminary investigation has the oft-repeated purposes of securing innocent persons against hasty, malicious and oppressive prosecutions; protecting them from open and public accusations of crime and from the trouble as well as expense and anxiety of a public trial; and protecting the State from useless and expensive prosecutions.38 The investigation is advisedly called preliminary, as it is yet to be followed by the trial proper.

Nonetheless, we deem it important to stress and remind respondent to refrain from accepting employment in any matter in which he knows or has reason to believe that he may be an essential witness for the prospective client. Furthermore, in future cases in which his testimony may become essential to serve the "ends of justice," the canons of the profession require him to withdraw from the active prosecution of these cases.

No Proof of Harassment

The charge that respondent harassed complainant and uttered insulting words and veiled threats is not supported by evidence. Allegation is never equivalent to proof, and a bare charge cannot be equated with liability.39 It is not the self-serving claim of complainant but the version of respondent that is more credible, considering that the latter’s allegations are corroborated by the Affidavits of the police officers and the Certifications of the Cabanatuan City Police.

WHEREFORE, Atty. Edison V. Rafanan is found guilty of violating the Notarial Law and Canon 5 of the Code of Professional Responsibility and is hereby FINED P3,000 with a warning that similar infractions in the future will be dealt with more severely.

SO ORDERED.



EN BANC

RE: RESOLUTION OF THE COURT DATED 1 JUNE 2004 IN G.R. NO. 72954 AGAINST, ATTY. VICTOR C. AVECILLA, Respondent.

A.C. No. 6683 Present: CORONA, C.J., CARPIO, VELASCO, JR., LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, MENDOZA, and SERENO, JJ. Promulgated: June 21, 2011

x----------------------------------------------------------------------------------------------- x D E C I S I O N PEREZ, J.: The present administrative case is based on the following facts: Prelude Sometime in 1985, respondent Atty. Victor C. Avecilla (Atty. Avecilla) and a certain Mr. Louis C. Biraogo (Mr. Biraogo) filed a petition before this Court impugning the constitutionality of Batas Pambansa Blg. 883, i.e., the law that called for the holding of a presidential snap election on 7 February 1986. The petition was docketed as G.R. No. 72954 and was consolidated with nine (9) other petitions[1] voicing a similar concern. On 19 December 1985, the Court En banc issued a Resolution dismissing the consolidated petitions, effectively upholding the validity of Batas Pambansa Blg. 883.[2]

On 8 January 1986, after the aforesaid resolution became final, the rollo[3] of G.R. No. 72954 was entrusted to the Court’s Judicial Records Office (JRO) for safekeeping.[4]

The Present Case

On 14 July 2003, the respondent and Mr. Biraogo sent a letter [5] to the Honorable Hilario G. Davide, Jr., then Chief Justice of the Supreme Court (Chief Justice Davide), requesting that they be furnished several documents [6] relative to the expenditure of the Judiciary Development Fund (JDF). In order to show that they have interest in the JDF enough to be informed of how it was being


spent, the respondent and Mr. Biraogo claimed that they made contributions to the said fund by way of the docket and legal fees they paid as petitioners in G.R No. 72954.[7]

On 28 July 2003, Chief Justice Davide instructed[8] Atty. Teresita Dimaisip (Atty. Dimaisip), then Chief of the JRO, to forward

the rollo of G.R. No. 72954 for the purpose of verifying the claim of the respondent and Mr. Biraogo. On 30 July 2003, following a diligent search for the rollo of G.R. No. 72954, Atty. Dimaisip apprised[9] Chief Justice Davide

that the subject rollo could not be found in the archives. Resorting to the tracer card[10] of G.R. No. 72954, Atty. Dimaisip discovered that the subject rollo had been borrowed from the JRO on 13 September 1991 but, unfortunately, was never since returned. [11] The tracer card named the respondent, although acting through a certain Atty. Salvador Banzon (Atty. Banzon), as the borrower of the subject rollo.[12]

The next day, or on 31 July 2003, Chief Justice Davide took prompt action by directing [13] Atty. Dimaisip to supply

information about how the respondent was able to borrow the rollo of G.R. No. 72954 and also to take necessary measures to secure the return of the said rollo.

Reporting her compliance with the foregoing directives, Atty. Dimaisip sent to Chief Justice Davide a Memorandum [14] on 13

August 2003. In substance, the Memorandum relates that:

1. At the time the rollo of G.R. No. 72954 was borrowed from the JRO, the respondent was employed with the Supreme Court as a member of the legal staff of retired Justice Emilio A. Gancayco (Justice Gancayco). Ostensibly, it was by virtue of his confidential employment that the respondent was able to gain access to the rollo of G.R. No. 72954.[15]

2. Atty. Dimaisip had already contacted the respondent about the possible return of the subject rollo.[16] Atty. Dimaisip said

that the respondent acknowledged having borrowed the rollo of G.R. No. 72954 through Atty. Banzon, who is a colleague of his in the office of Justice Gancayco.[17]

On 18 August 2003, almost twelve (12) years after it was borrowed, the rollo of G.R. No. 72954 was finally turned over by

Atty. Avecilla to the JRO.[18]

On 22 September 2003, Chief Justice Davide directed [19] the Office of the Chief Attorney (OCAT) of this Court, to make a study, report and recommendation on the incident. On 20 November 2003, the OCAT submitted a Memorandum[20] to the Chief Justice opining that the respondent may be administratively charged, as a lawyer and member of the bar, for taking out the rollo of G.R. No. 72954. The OCAT made the following significant observations:

1. Justice Gancayco compulsorily retired from the Supreme Court on 20 August 1991. [21] However, as is customary, the coterminous employees of Justice Gancayco were given an extension of until 18 September 1991 to remain as employees of the court for the limited purpose of winding up their remaining affairs. Hence, the respondent was already nearing the expiration of his “extended tenure” when he borrowed the rollo of G.R. No. 72954 on 13 September 1991.[22]

2. The above circumstance indicates that the respondent borrowed the subject rollo not for any official business related to his

duties as a legal researcher for Justice Gancayco, but merely to fulfill a personal agenda. [23] By doing so, the respondent clearly abused his confidential position for which he may be administratively sanctioned.[24]

3. It must be clarified, however, that since the respondent is presently no longer in the employ of the Supreme Court, he can

no longer be sanctioned as such employee.[25] Nevertheless, an administrative action against the respondent as a lawyer and officer of the court remains feasible.[26]

Accepting the findings of the OCAT, the Court En banc issued a Resolution[27] on 9 December 2003 directing the respondent

to show cause why he should not be held administratively liable for borrowing the rollo of G.R. No. 72954 and for failing to return the same for a period of almost twelve (12) years.

The respondent conformed to this Court’s directive by submitting his Respectful Explanation (Explanation) [28] on 21 January

2004. In the said explanation, the respondent gave the following defenses:

1. The respondent maintained that he neither borrowed nor authorized anyone to borrow the rollo of G.R. No. 72954.[29] Instead, the respondent shifts the blame on the person whose signature actually appears on the tracer card of G.R. No.


72954 and who, without authority, took the subject rollo in his name.[30] Hesitant to pinpoint anyone in particular as the author of such signature, the respondent, however, intimated that the same might have belonged to Atty. Banzon.[31]

2. The respondent asserted that, for some unknown reason, the subject rollo just ended up in his box of personal papers and

effects, which he brought home following the retirement of Justice Gancayco. [32] The respondent can only speculate that the one who actually borrowed the rollo might have been a colleague in the office of Justice Gancayco and that through inadvertence, the same was misplaced in his personal box.[33]

3. The respondent also denounced any ill-motive for failing to return the rollo, professing that he had never exerted effort to

examine his box of personal papers and effects up until that time when he was contacted by Atty. Dimaisip inquiring about the missing rollo.[34] The respondent claimed that after finding out that the missing rollo was, indeed, in his personal box, he immediately extended his cooperation to the JRO and wasted no time in arranging for its return.[35]

On 24 February 2004, this Court referred the respondent’s Explanation to the OCAT for initial study. In its Report[36] dated

12 April 2004, the OCAT found the respondent’s Explanation to be unsatisfactory. On 1 June 2004, this Court tapped[37] the Office of the Bar Confidant (OBC) to conduct a formal investigation on the matter

and to prepare a final report and recommendation. A series of hearings were thus held by the OBC wherein the testimonies of the respondent,[38] Atty. Banzon,[39] Atty. Dimaisip[40] and one Atty. Pablo Gancayco[41] were taken. On 6 August 2007, the respondent submitted his Memorandum[42] to the OBC reiterating the defenses in his Explanation.

On 13 October 2009, the OBC submitted its Report and Recommendation[43] to this Court. Like the OCAT, the OBC dismissed

the defenses of the respondent and found the latter to be fully accountable for taking out the rollo of G.R. No. 72954 and failing to return it timely.[44] The OBC, thus, recommended that the respondent be suspended from the practice of law for one (1) year.[45]

Our Ruling

We agree with the findings of the OBC. However, owing to the peculiar circumstances in this case, we find it fitting to reduce the recommended penalty. The Respondent Borrowed The Rollo After reviewing the records of this case, particularly the circumstances surrounding the retrieval of the rollo of G.R. No. 72954, this Court is convinced that it was the respondent, and no one else, who is responsible for taking out the subject rollo. The tracer card of G.R. No. 72954 bears the following information:

1. The name of the respondent, who was identified as borrower of the rollo,[46] and

2. The signature of Atty. Banzon who, on behalf of the respondent, actually received the rollo from the JRO.[47]

The respondent sought to discredit the foregoing entries by insisting that he never authorized Atty. Banzon to borrow the

subject rollo on his behalf.[48] We are, however, not convinced. First. Despite the denial of the respondent, the undisputed fact remains that it was from his possession that the

missing rollo was retrieved about twelve (12) years after it was borrowed from the JRO. This fact, in the absence of any plausible explanation to the contrary, is sufficient affirmation that, true to what the tracer card states, it was the respondent who borrowed the rollo of G.R. No. 72954.

Second. The respondent offered no convincing explanation how the subject rollo found its way into his box of personal

papers and effects. The respondent can only surmise that the subject rollo may have been inadvertently placed in his personal box by another member of the staff of Justice Gancayco. [49] However, the respondent’s convenient surmise remained just that—a speculation incapable of being verified definitively.

Third. If anything, the respondent’s exceptional stature as a lawyer and former confidante of a Justice of this Court only

made his excuse unacceptable, if not totally unbelievable. As adequately rebuffed by the OCAT in its Report dated 12 April 2004:


x x x However, the excuse that the rollo “inadvertently or accidentally” found its way to his personal box through his officemates rings hollow in the face of the fact that he was no less than the confidential legal assistance of a Member of this Court. With this responsible position, Avecilla is expected to exercise extraordinary diligence with respect to all matters, including seeing to it that only his personal belongings were in that box for taking home after his term of office in this Court has expired.[50]

Verily, the tracer card of G.R. No. 72954 was never adequately controverted. We, therefore, sustain its entry and hold the respondent responsible for borrowing the rolloof G.R. No. 72954. Respondent’s Administrative Liability Having settled that the respondent was the one who borrowed the rollo of G.R. No. 72954, We next determine his administrative culpability. We begin by laying the premises:

1. The respondent is presently no longer in the employ of this Court and as such, can no longer be held administratively sanctioned as an employee.[51] However, the respondent, as a lawyer and a member of the bar, remains under the supervisory and disciplinary aegis of this Court.[52]

2. The respondent was already nearing the expiration of his “extended tenure” when he borrowed the rollo of G.R. No. 72954

on 13 September 1991.[53] We must recall that Justice Gancayco already retired as of 20 April 1991. Hence, it may be concluded that for whatever reason the respondent borrowed the subject rollo, it was not for any official reason related to the adjudication of pending cases.[54]

3. The respondent’s unjustified retention of the subject rollo for a considerable length of time all but confirms his illicit motive

in borrowing the same. It must be pointed out that the subject rollo had been in the clandestine possession of the respondent for almost twelve (12) years until it was finally discovered and recovered by the JRO.

Given the foregoing, We find that there are sufficient grounds to hold respondent administratively liable.

First. Taking judicial records, such as a rollo, outside court premises, without the court’s consent, is an administratively punishable act. In Fabiculana, Sr. v. Gadon,[55]this Court previously sanctioned a sheriff for the wrongful act of bringing court records home, thus:

Likewise Ciriaco Y. Forlales, although not a respondent in complainant's letter-complaint, should be meted

the proper penalty, having admitted taking the records of the case home and forgetting about them. Court employees are, in the first place, not allowed to take any court records, papers or documents outside the court premises. It is clear that Forlales was not only negligent in his duty of transmitting promptly the records of an appealed case to the appellate court but he also failed in his duty not to take the records of the case outside of the court and to subsequently forget about them.[56] (Emphasis supplied)

Second. The act of the respondent in borrowing a rollo for unofficial business entails the employment of deceit not

becoming a member of the bar. It presupposes the use of misrepresentation and, to a certain extent, even abuse of position on the part of the respondent because the lending of rollos are, as a matter of policy, only limited to official purposes.

As a lawyer then employed with the government, the respondent clearly violated Rule 6.02, Canon 6 of the Code of

Professional Responsibility, to wit: Rule 6.02 - A lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties. (Emphasis supplied).

Third. However, We find the recommended penalty of suspension from the practice of law for one (1) year as too harsh for the present case. We consider the following circumstances in favor of the respondent:

1. G.R. No. 72954 was already finally resolved when its rollo was borrowed on 13 September 1991. Thus, the act of respondent in keeping the subject rollo worked no prejudice insofar as deciding G.R. No. 72954 is concerned.


2. It was never established that the contents of the rollo, which remained confidential despite the finality of the resolution in G.R. No. 72954, were disclosed by the respondent.

3. After his possession of the subject rollo was discovered, the respondent cooperated with the JRO for the return of the rollo.

We, therefore, temper the period of suspension to only six (6) months.

WHEREFORE, in light of the foregoing premises, the respondent is hereby SUSPENDED from the practice of law for six (6) months. The respondent is alsoSTERNLY WARNED that a repetition of a similar offense in the future will be dealt with more severely.

SO ORDERED.



[A.C. CBD No. 167. March 9, 1999]ATTY. PRUDENCIO S. PENTICOSTES, complainant, vs. PROSECUTOR DIOSDADO S. IBAÑEZ, respondent.

Sometime in 1989, Encarnacion Pascual, the sister-in-law of Atty. Prudencio S. Penticostes (herein complainant) was sued for non-remittance of SSS payments. The complaint was docketed as I.S. 89-353 and assigned to Prosecutor Diosdado S. Ibañez (herein respondent) for preliminary investigation. In the course of the investigation, Encarnacion Pascual gave P1,804.00 to respondent as payment of her Social Security System (SSS) contribution in arrears. Respondent, however, did not remit the amount to the system. The fact of non-payment was certified to by the SSS on October 2, 1989.

On November 16, 1990 or over a year later, complainant filed with the Regional Trial Court of Tarlac a complaint for professional misconduct against Ibañez due to the latter’s failure to remit the SSS contributions of his sister-in-law. The complaint alleged that respondent’s misappropriation of Encarnacion Pascual’s SSS contributions amounted to a violation of his oath as a lawyer. Seven days later, or on November 23, 1990, respondent paid P1,804.00 to the SSS on behalf of Encarnacion Pascual.

In the meantime, the case was referred to the Integrated Bar of the Philippines-Tarlac Chapter, the court observing that it had no competence to receive evidence on the matter. Upon receipt of the case, the Tarlac Chapter forwarded the same to IBP’s Commission on Bar Discipline.

In his defense, respondent claimed that his act of accommodating Encarnacion Pascual’s request to make payment to the SSS did not amount to professional misconduct but was rather an act of Christian charity. Furthermore, he claimed that the action was moot and academic, the amount of P1,804.00 having already been paid by him to the SSS. Lastly, he disclaimed liability on the ground that the acts complained were not done by him in his capacity as a practicing lawyer but on account of his office as a prosecutor.

On September 3, 1998, the Commission recommended that the respondent be reprimanded, with a warning that the commission of the same or similar offense would be dealt with more severely in the future. On November 5, 1998, the Board of Governors of the Integrated Bar of the Philippines adopted and approved its Commission’s recommendation.

This Court adopts the recommendation of the IBP and finds respondent guilty of professional misconduct. While there is no doubt that payment of the contested amount had been effected to the SSS on November 23, 1990, it is clear however, that the same was made only after a complaint had been filed against respondent. Furthermore, the duties of a provincial prosecutor do not include receiving money from persons with official transactions with his office.

This Court has repeatedly admonished lawyers that a high sense of morality, honesty and fair dealing is expected and required of a member of the bar. Rule 1.01 of the Code of Professional Responsibility provides that “[a] lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.”

It is glaringly clear that respondent’s non-remittance for over one year of the funds coming from Encarnacion Pascual constitutes conduct in gross violation of the above canon. The belated payment of the same to the SSS does not excuse his misconduct. While Pascual may not strictly be considered a client of respondent, the rules relating to a lawyer’s handling of funds of a client is applicable. In Daroy v. Legaspi,[1] this court held that “(t)he relation between an attorney and his client is highly fiduciary in nature...[thus] lawyers are bound to promptly account for money or property received by them on behalf of their clients and failure to do so constitutes professional misconduct.” The failure of respondent to immediately remit the amount to the SSS gives rise to the presumption that he has misappropriated it for his own use. This is a gross violation of general morality as well as professional ethics; it impairs public confidence in the legal profession and deserves punishment.[2]

Respondent’s claim that he may not be held liable because he committed such acts, not in his capacity as a private lawyer, but as a prosecutor is unavailing. Canon 6 of the Code of Professional Responsibility provides:

“These canons shall apply to lawyers in government service in the discharge of their official tasks.”

As stated by the IBP Committee that drafted the Code, “a lawyer does not shed his professional obligations upon assuming public office. In fact, his public office should make him more sensitive to his professional obligations because a lawyer’s disreputable conduct is more likely to be magnified in the public’s eye.[3] Want of moral integrity is to be more severely condemned in a lawyer who holds a responsible public office.[4]

ACCORDINGLY, this Court REPRIMANDS respondent with a STERN WARNING that a commission of the similar offense will be dealt with more severely in the future. LET copies of this decision be spread in his records and copies be furnished the Department of Justice and the Office of the Bar Confidant. SO ORDERED.



http://sc.judiciary.gov.ph/jurisprudence/1999/mar99/ac_cbd_167.htm#_edn4




SUPREME COURTManila

A.C. No. 244 March 29, 1963

IN THE MATTER OF THE PETITION FOR DISBARMENT OF TELESFORO A. DIAO, vs.SEVERINO G. MARTINEZ, petitioner.

After successfully passing the corresponding examinations held in 1953, Telesforo A. Diao was admitted to the Bar.

About two years later, Severino Martinez charged him with having falsely represented in his application for such Bar examination, that he had the requisite academic qualifications. The matter was in due course referred to the Solicitor General who caused the charge to be investigated; and later he submitted a report recommending that Diao's name be erased from the roll of attorneys, because contrary to the allegations in his petition for examination in this Court, he (Diao) had not completed, before taking up law subjects, the required pre-legal education prescribed by the Department of Private Education, specially, in the following particulars:

(a) Diao did not complete his high school training; and

(b) Diao never attended Quisumbing College, and never obtained his A.A. diploma therefrom — which contradicts the credentials he had submitted in support of his application for examination, and of his allegation therein of successful completion of the "required pre-legal education".

Answering this official report and complaint, Telesforo A. Diao, practically admits the first charge: but he claims that although he had left high school in his third year, he entered the service of the U.S. Army, passed the General Classification Test given therein, which (according to him) is equivalent to a high school diploma, and upon his return to civilian life, the educational authorities considered his army service as the equivalent of 3rd and 4th year high school.

We have serious doubts, about the validity of this claim, what with respondent's failure to exhibit any certification to that effect (the equivalence) by the proper school officials. However, it is unnecessary to dwell on this, since the second charge is clearly meritorious. Diao never obtained his A.A. from Quisumbing College; and yet his application for examination represented him as an A.A. graduate (1940-1941) of such college. Now, asserting he had obtained his A.A. title from the Arellano University in April, 1949, he says he was erroneously certified, due to confusion, as a graduate of Quisumbing College, in his school records.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts. 1äwphï1.ñët

This explanation is not acceptable, for the reason that the "error" or "confusion" was obviously of his own making. Had his application disclosed his having obtained A.A. from Arellano University, it would also have disclosed that he got it in April, 1949, thereby showing that he began his law studies (2nd semester of 1948-1949) six months before obtaining his Associate in Arts degree. And then he would not have been permitted to take the bar tests, because our Rules provide, and the applicant for the Bar examination must affirm under oath, "That previous to the study of law, he had successfully and satisfactorily completed the required pre-legal education(A.A.) as prescribed by the Department of Private Education," (emphasis on "previous").

Plainly, therefore, Telesforo A. Diao was not qualified to take the bar examinations; but due to his false representations, he was allowed to take it, luckily passed it, and was thereafter admitted to the Bar. Such admission having been obtained under false pretenses must be, and is hereby revoked. The fact that he hurdled the Bar examinations is immaterial. Passing such examinations is not the only qualification to become an attorney-at-law; taking the prescribed courses of legal study in the regular manner is equally essential..

The Clerk is, therefore, ordered to strike from the roll of attorneys, the name of Telesforo A. Diao. And the latter is required to return his lawyer's diploma within thirty days. So ordered.




Manila

EN BANC

A.C. No. 389 February 28, 1967

IN RE: DISBARMENT OF ARMANDO PUNO. FLORA QUINGWA complainant, vs.ARMANDO PUNO, respondent.

Domingo T. Zavalla for complainant.Armando Puno for and in his own behalf as respondent.

REGALA, J.:

On April 16, 1959, Flora Quingwa filed before this Court a verified complaint charging Armando Puno, a member of the Bar, with gross immorality and misconduct. In his answer, the respondent denied all the material allegations of the complaint, and as a special defense averred that the allegations therein do not constitute grounds for disbarment or suspension under section 25, Rule 127 of the former Rules of Court.

The case was referred to the Solicitor General on June 3, 1958, for investigation, report and recommendation. Hearings were held by the then Solicitor Roman Cancino, Jr., during which the complainant, assisted by her counsel, presented evidence both oral and documentary. The respondent, as well as his counsel, cross-examined the complainant's witnesses. The respondent likewise testified. He denied having sexual intercourse with complainant at the Silver Moon Hotel on June 1, 1958, disclaimed the handwriting "Mr. & Mrs. A. Puno" appearing in the hotel register, and disowned Armando Quingwa Puno, Jr. to be his child.

After the hearing, the Solicitor General filed a complaint, formally charging respondent with immorality. The complaint recites:

That on June 1, 1958, at a time when complainant Flora Quingwa and respondent Armando Puno were engaged to be married, the said respondent invited the complainant to attend a movie but on their way the respondent told the complainant that they take refreshment before going to the Lyric Theater; that they proceeded to the Silver Moon Hotel at R. Hidalgo, Manila; that while at the restaurant on the first floor of the said Silver Moon Hotel, respondent proposed to complainant that they go to one of the rooms upstairs assuring her that 'anyway we are getting married; that with reluctance and a feeling of doubt engendered by love of respondent and the respondent's promise of marriage, complainant acquiesced, and before they entered the hotel room respondent registered and signed the registry book as 'Mr. and Mrs. A. Puno; that after registering at the hotel, respondent shoved complainant inside the room; that as soon as they were inside the room, someone locked the door from outside and respondent proceeded to the bed and undressed himself; that complainant begged respondent not to molest her but respondent insisted, telling her: 'anyway I have promised to marry you'; and respondent, still noticing the reluctance of complainant to his overtures of love, again assured complainant that 'you better give up. Anyway I promised that I will marry you'; that thereupon respondent pulled complainant to the bed, removed her panty, and then placed himself on top of her and held her hands to keep her flat on the bed; that when respondent was already on top of complainant the latter had no other recourse but to submit to respondent's demand and two (2) sexual intercourse took place from 3:00 o'clock until 7:00 o'clock that same evening when they left the hotel and proceeded to a birthday party together; that after the sexual act with complainant on June 1, 1958, respondent repeatedly proposed to have some more but complainant refused telling that they had better wait until they were married; that after their said sexual intimacy on June 1, 1958 and feeling that she was already on the family way, complainant repeatedly implored respondent to comply with his promise of marriage but respondent refused to comply; that on February 20, 1959, complainant gave birth to a child.

That the acts of the respondent in having carnal knowledge with the complainant through a promise of marriage which he did not fulfill and has refused to fulfill up to the present constitute a conduct which shows that respondent is devoid of the highest degree of morality and integrity which at all times is expected of and must be possessed by members of the Philippine Bar.


The Solicitor General asked for the disbarment of the respondent.

A copy of this complaint was served on respondent on May 3, 1962. Thereupon, he answered the complaint on June 9, 1962, again denying that he took complainant to the Silver Moon Hotel and that on the promise of marriage, succeeded twice in having sexual intercourse with her. He, however, admitted that sometime in June, 1955, he and the complainant became sweethearts until November, 1955, when they broke off, following a quarrel. He left for Zamboanga City in July, 1958, to practice law. Without stating in his answer that he had the intention of introducing additional evidence, respondent prayed that the complaint be dismissed.

This case was set for hearing in this Court on July 20, 1962. On the day of the hearing Solicitor Ceferino E. Gaddi who appeared for the complainant submitted the case for decision without oral argument. There was no appearance for the respondents.

Since the failure of respondent to make known in his answer his intention to present additional evidence in his behalf is deemed a waiver of the right to present such evidence (Toledo vs. Toledo, Adm. Case No. 266, April 27, 1963), the evidence produced before the Solicitor General in his investigation, where respondent had an opportunity to object to the evidence and cross-examine the witnesses, may now be considered by this Court, pursuant to Section 6, Rule 139 of the Rules of Court.

After reviewing the evidence, we are convinced that the facts are as stated in the complaint.

Complainant is an educated woman, having been a public school teacher for a number of years. She testified that respondent took her to the Silver Moon Hotel on June 1, 1958, signing the hotel register as "Mr. and Mrs. A. Puno," and succeeded in having sexual intercourse with her on the promise of marriage. The hotel register of the Silver Moon Hotel (Exh. B-1 and Exh. B-2) shows that "Mr. and Mrs. A. Puno" arrived at that hotel on June 1, 1958 at 3:00 P.M. and departed at 7:00 P.M.

Complainant also testified that she last saw respondent on July 5, 1958, when the latter went to Zamboanga City. When she learned that respondent had left for Zamboanga City, she sent him a telegram sometime in August of that year telling him that she was in trouble. Again she wrote him a letter in September and another one in October of the same year, telling him that she was pregnant and she requested him to come. Receiving no replies from respondent, she went to Zamboanga City in November, 1958, where she met the respondent and asked him to comply with his promise to marry her.1äwphï1.ñët

Respondent admitted that he left for Zamboanga City in July, 1958, and that he and complainant met in Zamboanga City in November, 1958. The fact that complainant sent him a telegram and letters was likewise admitted in respondent's letter to the complainant dated November 3, 1958 (Exh. E), which was duly identified by the respondent to be his.

Complainant gave birth to a baby boy on February 20, 1959, at the Maternity and Children's Hospital. This is supported by a certified true copy of a birth certificate issued by the Deputy Local Civil Registrar of Manila, and a certificate of admission of complainant to the Maternity and Children's Hospital issued by the medical records clerk of the hospital.

To show how intimate the relationship between the respondent and the complainant was, the latter testified that she gave money to the respondent whenever he asked from her. This was corroborated by the testimony of Maria Jaca a witness for the complainant. Even respondent's letter dated November 3, 1958 (Exh. E) shows that he used to ask for money from the complainant.

The lengthy cross-examination to which complainant was subjected by the respondent himself failed to discredit complainant's testimony.

In his answer to the complaint of the Solicitor General, the respondent averred that he and complainant were sweethearts up to November, 1955 only. The fact that they reconciled and were sweethearts in 1958 is established by the testimony of Fara Santos, a witness of the complainant (pp. 12 & 17, t.s.n.); respondent's letter to the complainant dated November 3, 1958 (Exh. E); and respondent's own testimony (pp. 249 & 255, t.s.n.)

Complainant submitted to respondent's plea for sexual intercourse because of respondent's promise of marriage and not because of a desire for sexual gratification or of voluntariness and mutual passion. (Cf. Tanjanco vs. Court of Appeals, G.R. No. L-18630, December 17, 1966) .

One of the requirements for all applicants for admission to the Bar is that the applicant must produce before the Supreme Court satisfactory evidence of good moral character (Section 2, Rule 127 of the old Rules of Court, now section 2, Rule 138). If that qualification is a condition precedent to a license or privilege to enter upon the practice of law, it is essential during the continuance Cases in Legal Ethics Bachelor of Laws 3A 41

of the practice and the exercise of the privilege. (Royong vs. Oblena, Adm. Case No. 376, April 30, 1963, citing In re Pelaez, 44 Phil. 567). When his integrity is challenged by evidence, it is not enough that he denies the charges against him; he must meet the issue and overcome the evidence for the relator (Legal and Judicial Ethics, by Malcolm, p. 93) and show proofs that he still maintains the highest degree of morality and integrity, which at all times is expected of him. Respondent denied that he took complainant to the Silver Moon Hotel and had sexual intercourse with her on June 1, 1958, but he did not present evidence to show where he was on that date. In the case of United States vs. Tria, 17 Phil. 303, Justice Moreland, speaking for the Court, said:

An accused person sometimes owes a duty to himself if not to the State. If he does not perform that duty he may not always expect the State to perform it for him. If he fails to meet the obligation which he owes to himself, when to meet it is the easiest of easy things, he is hardly indeed if he demand and expect that same full and wide consideration which the State voluntarily gives to those who by reasonable effort seek to help themselves. This is particularly so when he not only declines to help himself but actively conceals from the State the very means by which it may assist him.

With respect to the special defense raised by the respondent in his answer to the charges of the complainant that the allegations in the complaint do not fall under any of the grounds for disbarment or suspension of a member of the Bar as enumerated in section 25 of Rule 127 of the (old) Rules of Court, it is already a settled rule that the statutory enumeration of the grounds for disbarment or suspension is not to be taken as a limitation on the general power of courts to suspend or disbar a lawyer. The inherent powers of the court over its officers can not be restricted. Times without number, our Supreme Court held that an attorney will be removed not only for malpractice and dishonesty in his profession, but also for gross misconduct, which shows him to be unfit for the office and unworthy of the privileges which his license and the law confer upon him. ( In re Pelaez, 44 Phil. 567, citing In re Smith [1906] 73 Kan 743; Balinon vs. de Leon Adm. Case No. 104, January 28, 1954; 50 O.G. 583; Mortel vs. Aspiras, Adm. Case No. 145, December 28, 1956, 53 O.G. 627). As a matter of fact, "grossly immoral conduct" is now one of the grounds for suspension or disbarment. (Section 27, Rule 138, Rules of Court).

Under the circumstances, we are convinced that the respondent has committed a grossly immoral act and has, thus disregarded and violated the fundamental ethics of his profession. Indeed, it is important that members of this ancient and learned profession of law must conform themselves in accordance with the highest standards of morality. As stated in paragraph 29 of the Canons of Judicial Ethics:

... The lawyer should aid in guarding the bar against the admission to the profession of candidates unfit or unqualified because deficient in either moral character or education. He should strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice.

Wherefore, respondent Armando Puno is hereby disbarred and, as a consequence, his name is ordered stricken off from the Roll of Attorneys.


EN BANC ATTY. ILUMINADA M. VAFLOR-FABROA, A.C. No. 6273


Complainant, - versus - ATTY. OSCAR PAGUINTO, Respondent.

Present: PUNO, C.J.,CARPIO,CORONA,CARPIO MORALES,VELASCO, JR.,NACHURA,LEONARDO-DE CASTRO,BRION,PERALTA,BERSAMIN,DEL CASTILLO,ABAD, VILLARAMA, JR.,PEREZ, andMENDOZA, JJ. Promulgated: March 15, 2010

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x D E C I S I O N CARPIO MORALES, J.:

An Information for Estafa[1] 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 denied[3]

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 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 jurisdiction[9] of CDA.

In her present complainant[10] 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 SAME[11]

X X X DISOBEYED LAWS OF THE LAND, PROMOTE[D] DISRESPECT FOR LAW AND THE LEGAL PROFESSION[12]

X X X DID NOT CONDUCT HIMSELF WITH COURTESY, FAIRNESS AND CANDOR TOWARD HIS PROFESSIONAL COLLEAGUE AND ENGAGED IN HARASSING TACTICS AGAINST OPPOSING COUNSEL[13]

X X X VIOLATED CANON 19 – A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL WITHIN THE BOUNDS OF THE LAW[14]

X X X RUINED AND DAMAGED NOT ONLY THE GEN. MARIANO ALVAREZ SERVICES COOPERATIVE, INC. (GEMASCO, INC.) BUT THE ENTIRE WATER-CONSUMING COMMUNITY AS WELL[15]

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 therein

2.2 will do no falsehood, nor consent to the doing of any in court 2.3 will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid

nor consent to the same 2.4 will delay no man for money or malice

3. 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.[26] On 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. Bajar[28] 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.Case 16

Topic: Canon 8



Manila

EN BANC

G.R. No. L-27654 February 18, 1970

IN THE MATTER OF PROCEEDINGS FOR DISCIPLINARY ACTION AGAINST ATTY. VICENTE RAUL ALMACEN In L-27654, ANTONIO H. CALERO,

vs.

VIRGINIA Y. YAPTINCHAY.

R E S O L U T I O N

CASTRO, J.:

Before us is Atty. Vicente Raul Almacen's "Petition to Surrender Lawyer's Certificate of Title," filed on September 25, 1967, in protest against what he therein asserts is "a great injustice committed against his client by this Supreme Court." He indicts this Court, in his own phrase, as a tribunal "peopled by men who are calloused to our pleas for justice, who ignore without reasons their own applicable decisions and commit culpable violations of the Constitution with impunity." His client's he continues, who was deeply aggrieved by this Court's "unjust judgment," has become "one of the sacrificial victims before the altar of hypocrisy." In the same breath that he alludes to the classic symbol of justice, he ridicules the members of this Court, saying "that justice as administered by the present members of the Supreme Court is not only blind, but also deaf and dumb." He then vows to argue the cause of his client "in the people's forum," so that "the people may know of the silent injustice's committed by this Court," and that "whatever mistakes, wrongs and injustices that were committed must never be repeated." He ends his petition with a prayer that

... a resolution issue ordering the Clerk of Court to receive the certificate of the undersigned attorney and counsellor-at-law IN TRUST with reservation that at any time in the future and in the event we regain our faith and confidence, we may retrieve our title to assume the practice of the noblest profession.

He reiterated and disclosed to the press the contents of the aforementioned petition. Thus, on September 26, 1967, the Manila Times published statements attributed to him, as follows:

Vicente Raul Almacen, in an unprecedented petition, said he did it to expose the tribunal's"unconstitutional and obnoxious" practice of arbitrarily denying petitions or appeals without any reason.

Because of the tribunal's "short-cut justice," Almacen deplored, his client was condemned to pay P120,000, without knowing why he lost the case.

xxx xxx xxx

There is no use continuing his law practice, Almacen said in this petition, "where our Supreme Court is composed of men who are calloused to our pleas for justice, who ignore without reason their own applicable decisions and commit culpable violations of the Constitution with impunity.

xxx xxx xxx


He expressed the hope that by divesting himself of his title by which he earns his living, the present members of the Supreme Court "will become responsive to all cases brought to its attention without discrimination, and will purge itself of those unconstitutional and obnoxious "lack of merit" or "denied resolutions. (Emphasis supplied)

Atty. Almacen's statement that

... our own Supreme Court is composed of men who are calloused to our pleas of [sic] justice, who ignore their own applicable decisions and commit culpable violations of the Constitution with impunity

was quoted by columnist Vicente Albano Pacis in the issue of the Manila Chronicle of September 28, 1967. In connection therewith, Pacis commented that Atty. Almacen had "accused the high tribunal of offenses so serious that the Court must clear itself," and that "his charge is one of the constitutional bases for impeachment."

The genesis of this unfortunate incident was a civil case entitled Virginia Y. Yaptinchay vs. Antonio H. Calero,1 in which Atty. Almacen was counsel for the defendant. The trial court, after due hearing, rendered judgment against his client. On June 15, 1966 Atty. Almacen received a copy of the decision. Twenty days later, or on July 5, 1966, he moved for its reconsideration. He served on the adverse counsel a copy of the motion, but did not notify the latter of the time and place of hearing on said motion. Meanwhile, on July 18, 1966, the plaintiff moved for execution of the judgment. For "lack of proof of service," the trial court denied both motions. To prove that he did serve on the adverse party a copy of his first motion for reconsideration, Atty. Almacen filed on August 17, 1966 a second motion for reconsideration to which he attached the required registry return card. This second motion for reconsideration, however, was ordered withdrawn by the trial court on August 30, 1966, upon verbal motion of Atty. Almacen himself, who, earlier, that is, on August 22, 1966, had already perfected the appeal. Because the plaintiff interposed no objection to the record on appeal and appeal bond, the trial court elevated the case to the Court of Appeals.

But the Court of Appeals, on the authority of this Court's decision in Manila Surety & Fidelity Co., Inc. vs. Batu Construction & Co., L-16636, June 24, 1965, dismissed the appeal, in the following words:

Upon consideration of the motion dated March 27, 1967, filed by plaintiff-appellee praying that the appeal be dismissed, and of the opposition thereto filed by defendant-appellant; the Court RESOLVED TO DISMISS, as it hereby dismisses, the appeal, for the reason that the motion for reconsideration dated July 5, 1966 (pp. 90-113, printed record on appeal) does not contain a notice of time and place of hearing thereof and is, therefore, a useless piece of paper (Manila Surety & Fidelity Co., Inc. vs. Batu Construction & Co., G.R. No. L-16636, June 24, 1965), which did not interrupt the running of the period to appeal, and, consequently, the appeal was perfected out of time.

Atty. Almacen moved to reconsider this resolution, urging that Manila Surety & Fidelity Co. is not decisive. At the same time he filed a pleading entitled "Latest decision of the Supreme Court in Support of Motion for Reconsideration," citing Republic of the Philippines vs. Gregorio A. Venturanza, L-20417, decided by this Court on May 30, 1966, as the applicable case. Again, the Court of Appeals denied the motion for reconsideration, thus:

Before this Court for resolution are the motion dated May 9, 1967 and the supplement thereto of the same date filed by defendant- appellant, praying for reconsideration of the resolution of May 8, 1967, dismissing the appeal.

Appellant contends that there are some important distinctions between this case and that of Manila Surety and Fidelity Co., Inc. vs. Batu Construction & Co., G.R. No. L- 16636, June 24, 1965, relied upon by this Court in its resolution of May 8, 1967. Appellant further states that in the latest case,Republic vs. Venturanza, L-20417, May 30, 1966, decided by the Supreme Court concerning the question raised by appellant's motion, the ruling is contrary to the doctrine laid down in the Manila Surety & Fidelity Co., Inc. case.

There is no substantial distinction between this case and that of Manila Surety & Fidelity Co.

In the case of Republic vs. Venturanza, the resolution denying the motion to dismiss the appeal, based on grounds similar to those raised herein was issued on November 26, 1962, which was much earlier than the date of promulgation of the decision in the Manila Surety Case, which was June 24, 1965. Further, the resolution in the Venturanza case was interlocutory and the Supreme Court issued it "without prejudice to appellee's restoring the point in the brief." In the main decision in said case (Rep. vs. Venturanza the Supreme Court passed upon the issue


sub silencio presumably because of its prior decisions contrary to the resolution of November 26, 1962, one of which is that in the Manila Surety and Fidelity case. Therefore Republic vs. Venturanza is no authority on the matter in issue.

Atty. Almacen then appealed to this Court by certiorari. We refused to take the case, and by minute resolution denied the appeal. Denied shortly thereafter was his motion for reconsideration as well as his petition for leave to file a second motion for reconsideration and for extension of time. Entry of judgment was made on September 8, 1967. Hence, the second motion for reconsideration filed by him after the Said date was ordered expunged from the records.

It was at this juncture that Atty. Almacen gave vent to his disappointment by filing his "Petition to Surrender Lawyer's Certificate of Title," already adverted to — a pleading that is interspersed from beginning to end with the insolent contemptuous, grossly disrespectful and derogatory remarks hereinbefore reproduced, against this Court as well as its individual members, a behavior that is as unprecedented as it is unprofessional.

Nonetheless we decided by resolution dated September 28, 1967 to withhold action on his petition until he shall have actually surrendered his certificate. Patiently, we waited for him to make good his proffer. No word came from him. So he was reminded to turn over his certificate, which he had earlier vociferously offered to surrender, so that this Court could act on his petition. To said reminder he manifested "that he has no pending petition in connection with Case G.R. No. L-27654, Calero vs. Yaptinchay, said case is now final and executory;" that this Court's September 28, 1967 resolution did not require him to do either a positive or negative act; and that since his offer was not accepted, he "chose to pursue the negative act."

In the exercise of its inherent power to discipline a member of the bar for contumely and gross misconduct, this Court on November 17, 1967 resolved to require Atty. Almacen to show cause "why no disciplinary action should be taken against him." Denying the charges contained in the November 17 resolution, he asked for permission "to give reasons and cause why no disciplinary action should be taken against him ... in an open and public hearing." This Court resolved (on December 7) "to require Atty. Almacen to state, within five days from notice hereof, his reasons for such request, otherwise, oral argument shall be deemed waived and incident submitted for decision." To this resolution he manifested that since this Court is "the complainant, prosecutor and Judge," he preferred to be heard and to answer questions "in person and in an open and public hearing" so that this Court could observe his sincerity and candor. He also asked for leave to file a written explanation "in the event this Court has no time to hear him in person." To give him the ampliest latitude for his defense, he was allowed to file a written explanation and thereafter was heard in oral argument.

His written answer, as undignified and cynical as it is unchastened, offers -no apology. Far from being contrite Atty. Almacen unremittingly repeats his jeremiad of lamentations, this time embellishing it with abundant sarcasm and innuendo. Thus:

At the start, let me quote passages from the Holy Bible, Chapter 7, St. Matthew: —

"Do not judge, that you may not be judged. For with what judgment you judge, you shall be judged, and with what measure you measure, it shall be measured to you. But why dost thou see the speck in thy brother's eye, and yet dost not consider the beam in thy own eye? Or how can thou say to thy brother, "Let me cast out the speck from thy eye"; and behold, there is a beam in thy own eye? Thou hypocrite, first cast out the beam from thy own eye, and then thou wilt see clearly to cast out the speck from thy brother's eyes."

"Therefore all that you wish men to do to you, even to do you also to them: for this is the Law and the Prophets."

xxx xxx xxx

Your respondent has no intention of disavowing the statements mentioned in his petition. On the contrary, he refirms the truth of what he stated, compatible with his lawyer's oath that he will do no falsehood, nor consent to the doing of any in court. But he vigorously DENY under oath that the underscored statements contained in the CHARGE are insolent, contemptuous, grossly disrespectful and derogatory to the individual members of the Court; that they tend to bring the entire Court, without justification, into disrepute; and constitute conduct unbecoming of a member of the noble profession of law.


xxx xxx xxx

Respondent stands four-square that his statement is borne by TRUTH and has been asserted with NO MALICE BEFORE AND AFTER THOUGHT but mainly motivated with the highest interest of justice that in the particular case of our client, the members have shown callousness to our various pleas for JUSTICE, our pleadings will bear us on this matter, ...

xxx xxx xxx

To all these beggings, supplications, words of humility, appeals for charity, generosity, fairness, understanding, sympathy and above all in the highest interest of JUSTICE, — what did we get from this COURT? One word, DENIED, with all its hardiness and insensibility. That was the unfeeling of the Court towards our pleas and prayers, in simple word, it is plain callousness towards our particular case.

xxx xxx xxx

Now that your respondent has the guts to tell the members of the Court that notwithstanding the violation of the Constitution, you remained unpunished, this Court in the reverse order of natural things, is now in the attempt to inflict punishment on your respondent for acts he said in good faith.

Did His Honors care to listen to our pleadings and supplications for JUSTICE, CHARITY, GENEROSITY and FAIRNESS? Did His Honors attempt to justify their stubborn denial with any semblance of reason, NEVER. Now that your respondent is given the opportunity to face you, he reiterates the same statement with emphasis, DID YOU? Sir. Is this. the way of life in the Philippines today, that even our own President, said: — "the story is current, though nebulous ,is to its truth, it is still being circulated that justice in the Philippines today is not what it is used to be before the war. There are those who have told me frankly and brutally that justice is a commodity, a marketable commodity in the Philippines."

xxx xxx xxx

We condemn the SIN, not the SINNER. We detest the ACTS, not the ACTOR. We attack the decision of this Court, not the members. ... We were provoked. We were compelled by force of necessity. We were angry but we waited for the finality of the decision. We waited until this Court has performed its duties. We never interfered nor obstruct in the performance of their duties. But in the end, after seeing that the Constitution has placed finality on your judgment against our client and sensing that you have not performed your duties with "circumspection, carefulness, confidence and wisdom", your Respondent rise to claim his God given right to speak the truth and his Constitutional right of free speech.

xxx xxx xxx

The INJUSTICES which we have attributed to this Court and the further violations we sought to be prevented is impliedly shared by our President. ... .

xxx xxx xxx

What has been abhored and condemned, are the very things that were applied to us. Recalling Madam Roland's famous apostrophe during the French revolution, "O Liberty, what crimes are committed in thy name", we may dare say, "O JUSTICE, what technicalities are committed in thy name' or more appropriately, 'O JUSTICE, what injustices are committed in thy name."

xxx xxx xxx

We must admit that this Court is not free from commission of any abuses, but who would correct such abuses considering that yours is a court of last resort. A strong public opinion must be generated so as to curtail these abuses.

xxx xxx xxxCases in Legal Ethics Bachelor of Laws 3A 49

The phrase, Justice is blind is symbolize in paintings that can be found in all courts and government offices. We have added only two more symbols, that it is also deaf and dumb. Deaf in the sense that no members of this Court has ever heard our cries for charity, generosity, fairness, understanding sympathy and for justice; dumb in the sense, that inspite of our beggings, supplications, and pleadings to give us reasons why our appeal has been DENIED, not one word was spoken or given ... We refer to no human defect or ailment in the above statement. We only describe the. impersonal state of things and nothing more.

xxx xxx xxx

As we have stated, we have lost our faith and confidence in the members of this Court and for which reason we offered to surrender our lawyer's certificate, IN TRUST ONLY. Because what has been lost today may be regained tomorrow. As the offer was intended as our self-imposed sacrifice, then we alone may decide as to when we must end our self-sacrifice. If we have to choose between forcing ourselves to have faith and confidence in the members of the Court but disregard our Constitution and to uphold the Constitution and be condemned by the members of this Court, there is no choice, we must uphold the latter.

But overlooking, for the nonce, the vituperative chaff which he claims is not intended as a studied disrespect to this Court, let us examine the grain of his grievances.

He chafes at the minute resolution denial of his petition for review. We are quite aware of the criticisms 2 expressed against this Court's practice of rejecting petitions by minute resolutions. We have been asked to do away with it, to state the facts and the law, and to spell out the reasons for denial. We have given this suggestion very careful thought. For we know the abject frustration of a lawyer who tediously collates the facts and for many weary hours meticulously marshalls his arguments, only to have his efforts rebuffed with a terse unadorned denial. Truth to tell, however, most petitions rejected by this Court are utterly frivolous and ought never to have been lodged at all.3The rest do exhibit a first-impression cogency, but fail to, withstand critical scrutiny. By and large, this Court has been generous in giving due course to petitions for certiorari.

Be this as it may, were we to accept every case or write a full opinion for every petition we reject, we would be unable to carry out effectively the burden placed upon us by the Constitution. The proper role of the Supreme Court, as Mr. Chief Justice Vinson of the U.S. Supreme Court has defined it, is to decide "only those cases which present questions whose resolutions will have immediate importance beyond the particular facts and parties involved." Pertinent here is the observation of Mr. Justice Frankfurter in Maryland vs. Baltimore Radio Show, 94 L. ed 562, 566:

A variety of considerations underlie denials of the writ, and as to the same petition different reasons may read different justices to the same result ... .

Since there are these conflicting, and, to the uninformed, even confusing reasons for denying petitions for certiorari, it has been suggested from time to time that the Court indicate its reasons for denial. Practical considerations preclude. In order that the Court may be enabled to discharge its indispensable duties, Congress has placed the control of the Court's business, in effect, within the Court's discretion. During the last three terms the Court disposed of 260, 217, 224 cases, respectively, on their merits. For the same three terms the Court denied, respectively, 1,260, 1,105,1,189 petitions calling for discretionary review. If the Court is to do its work it would not be feasible to give reasons, however brief, for refusing to take these cases. The tune that would be required is prohibitive. Apart from the fact that as already indicated different reasons not infrequently move different members of the Court in concluding that a particular case at a particular time makes review undesirable.

Six years ago, in Novino, et al., vs. Court of Appeals, et al., 1,21098, May 31, 1963 (60 O.G. 8099), this Court, through the then Chief Justice Cesar Bengzon, articulated its considered view on this matter. There, the petitioners counsel urged that a "lack of merit" resolution violates Section 12 of Article VIII of the Constitution. Said Chief Justice Bengzon:

In connection with identical short resolutions, the same question has been raised before; and we held that these "resolutions" are not "decisions" within the above constitutional requirement. They merely hold that the petition for review should not be entertained in view of the provisions of Rule 46 of the Rules of Court; and even ordinary lawyers have all this time so understood it. It should be remembered that a petition to review the decision of the Court of Appeals is not a matter of right, but of sound judicial discretion; and so there is no need to fully explain the court's denial. For one thing, the facts and the law are already mentioned in the Court of Appeals' opinion.


By the way, this mode of disposal has — as intended — helped the Court in alleviating its heavy docket; it was patterned after the practice of the U.S. Supreme Court, wherein petitions for review are often merely ordered "dismissed".

We underscore the fact that cases taken to this Court on petitions for certiorari from the Court of Appeals have had the benefit of appellate review. Hence, the need for compelling reasons to buttress such petitions if this Court is to be moved into accepting them. For it is axiomatic that the supervisory jurisdiction vested upon this Court over the Court of Appeals is not intended to give every losing party another hearing. This axiom is implied in sec. 4 of Rule 45 of the Rules of Court which recites:

Review of Court of Appeals' decision discretionary.—A review is not a matter of right but of sound judicial discretion, and will be granted only when there are special and important reasons therefor. The following, while neither controlling nor fully measuring the court's discretion, indicate the character of reasons which will be considered:

(a) When the Court of Appeals has decided a question of substance, not theretofore determined by the Supreme Court, nor has decided it in a way probably not in accord with law or with the applicable decisions of the Supreme Court;

(b) When the Court of Appeals has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by the lower court, as to call for the exercise of the power of supervision.

Recalling Atty. Almacen's petition for review, we found, upon a thoroughgoing examination of the pleadings. and records, that the Court of Appeals had fully and correctly considered the dismissal of his appeal in the light of the law and applicable decisions of this Court. Far from straying away from the "accepted and usual course of judicial proceedings," it traced the procedural lines etched by this Court in a number of decisions. There was, therefore, no need for this Court to exercise its supervisory power.

As a law practitioner who was admitted to the Bar as far back as 1941, Atty. Almacen knew — or ought to have known — that for a motion for reconsideration to stay the running of the period of appeal, the movant must not only serve a copy of the motion upon the adverse party (which he did), but also notify the adverse party of the time and place of hearing (which admittedly he did not). This rule was unequivocally articulated in Manila Surety & Fidelity vs. Batu Construction & Co., supra:

The written notice referred to evidently is prescribed for motions in general by Rule 15, Sections 4 and 5 (formerly Rule 26), which provides that such notice shall state the time, and place of hearing and shall be served upon all the Parties concerned at least three days in advance. And according to Section 6 of the same Rule no motion shall be acted upon by the court without proof of such notice. Indeed it has been held that in such a case the motion is nothing but a useless piece of paper (Philippine National Bank v. Damasco, I,18638, Feb. 28, 1963; citing Manakil v. Revilla, 42 Phil. 81; Roman Catholic Bishop of Lipa v. Municipality of Unisan, 41 Phil. 866; and Director of Lands vs. Sanz, 45 Phil. 117). The reason is obvious: Unless the movant sets the time and place of hearing the Court would have no way to determine whether that party agrees to or objects to the motion, and if he objects, to hear him on his objection, since the Rules themselves do not fix any period within which he may file his reply or opposition.

If Atty. Almacen failed to move the appellate court to review the lower court's judgment, he has only himself to blame. His own negligence caused the forfeiture of the remedy of appeal, which, incidentally, is not a matter of right. To shift away from himself the consequences of his carelessness, he looked for a "whipping boy." But he made sure that he assumed the posture of a martyr, and, in offering to surrender his professional certificate, he took the liberty of vilifying this Court and inflicting his exacerbating rancor on the members thereof. It would thus appear that there is no justification for his scurrilous and scandalous outbursts.

Nonetheless we gave this unprecedented act of Atty. Almacen the most circumspect consideration. We know that it is natural for a lawyer to express his dissatisfaction each time he loses what he sanguinely believes to be a meritorious case. That is why lawyers are given 'wide latitude to differ with, and voice their disapproval of, not only the courts' rulings but, also the manner in which they are handed down.

Moreover, every citizen has the right to comment upon and criticize the actuations of public officers. This right is not diminished by the fact that the criticism is aimed at a judicial authority,4 or that it is articulated by a lawyer.5Such right is especially recognized where the criticism concerns a concluded litigation,6 because then the court's actuations are thrown open to public consumption.7 "Our decisions and all our official actions," said the Supreme Court of Nebraska,8 "are public property, and the press


and the people have the undoubted right to comment on them, criticize and censure them as they see fit. Judicial officers, like other public servants, must answer for their official actions before the chancery of public opinion."

The likely danger of confusing the fury of human reaction to an attack on one's integrity, competence and honesty, with "imminent danger to the administration of justice," is the reason why courts have been loath to inflict punishment on those who assail their actuations.9 This danger lurks especially in such a case as this where those who Sit as members of an entire Court are themselves collectively the aggrieved parties.

Courts thus treat with forbearance and restraint a lawyer who vigorously assails their actuations. 10 For courageous and fearless advocates are the strands that weave durability into the tapestry of justice. Hence, as citizen and officer of the court, every lawyer is expected not only to exercise the right, but also to consider it his duty to expose the shortcomings and indiscretions of courts and judges. 11

Courts and judges are not sacrosanct. 12 They should and expect critical evaluation of their performance. 13 For like the executive and the legislative branches, the judiciary is rooted in the soil of democratic society, nourished by the periodic appraisal of the citizens whom it is expected to serve.

Well-recognized therefore is the right of a lawyer, both as an officer of the court and as a citizen, to criticize in properly respectful terms and through legitimate channels the acts of courts and judges. The reason is that

An attorney does not surrender, in assuming the important place accorded to him in the administration of justice, his right as a citizen to criticize the decisions of the courts in a fair and respectful manner, and the independence of the bar, as well as of the judiciary, has always been encouraged by the courts. (In re Ades, 6 F Supp. 487) .

Criticism of the courts has, indeed, been an important part of the traditional work of the bar. In the prosecution of appeals, he points out the errors of lower courts. In written for law journals he dissects with detachment the doctrinal pronouncements of courts and fearlessly lays bare for -all to see that flaws and inconsistence" of the doctrines (Hill v. Lyman, 126 NYS 2d 286). As aptly stated by Chief Justice Sharswood in Ex Parte Steinman, 40 Am. Rep. 641:

No class of the community ought to be allowed freer scope in the expansion or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities for observing and forming a correct judgment. They are in constant attendance on the courts. ... To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood, by the judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained. ... .

Hence, as a citizen and as Officer of the court a lawyer is expected not only to exercise the right, but also to consider it his duty to avail of such right. No law may abridge this right. Nor is he "professionally answerable for a scrutiny into the official conduct of the judges, which would not expose him to legal animadversion as a citizen." (Case of Austin, 28 Am. Dee. 657, 665).

Above all others, the members of the bar have the beat Opportunity to become conversant with the character and efficiency of our judges. No class is less likely to abuse the privilege, as no other class has as great an interest in the preservation of an able and upright bench. (State Board of Examiners in Law v. Hart, 116 N.W. 212, 216)

To curtail the right of a lawyer to be critical of the foibles of courts and judges is to seal the lips of those in the best position to give advice and who might consider it their duty to speak disparagingly. "Under such a rule," so far as the bar is concerned, "the merits of a sitting judge may be rehearsed, but as to his demerits there must be profound silence." (State v. Circuit Court, 72 N.W. 196)

But it is the cardinal condition of all such criticism that it shall be bona fide, and shall not spill over the walls of decency and propriety. A wide chasm exists between fair criticism, on the One hand, and abuse and slander of courts and the judges thereof, on the other. Intemperate and unfair criticism is a gross violation of the duty of respect to courts. It is Such a misconduct that subjects a lawyer to disciplinary action.

For, membership in the Bar imposes upon a person obligations and duties which are not mere flux and ferment. His investiture into the legal profession places upon his shoulders no burden more basic, more exacting and more imperative than that of respectful


behavior toward the courts. He vows solemnly to conduct himself "with all good fidelity ... to the courts; 14 and the Rules of Court constantly remind him "to observe and maintain the respect due to courts of justice and judicial officers." 15 The first canon of legal ethics enjoins him "to maintain towards the courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance."

As Mr. Justice Field puts it:

... the obligation which attorneys impliedly assume, if they do not by express declaration take upon themselves, when they are admitted to the Bar, is not merely to be obedient to the Constitution and laws, but to maintain at all times the respect due to courts of justice and judicial officers. This obligation is not discharged by merely observing the rules of courteous demeanor in open court, but includes abstaining out of court from all insulting language and offensive conduct toward judges personally for their judicial acts. (Bradley, v. Fisher, 20 Law. 4d. 647, 652)

The lawyer's duty to render respectful subordination to the courts is essential to the orderly administration of justice. Hence, in the — assertion of their clients' rights, lawyers — even those gifted with superior intellect are enjoined to rein up their tempers.

The counsel in any case may or may not be an abler or more learned lawyer than the judge, and it may tax his patience and temper to submit to rulings which he regards as incorrect, but discipline and self-respect are as necessary to the orderly administration of justice as they are to the effectiveness of an army. The decisions of the judge must be obeyed, because he is the tribunal appointed to decide, and the bar should at all times be the foremost in rendering respectful submission. (In Re Scouten, 40 Atl. 481)

We concede that a lawyer may think highly of his intellectual endowment That is his privilege. And he may suffer frustration at what he feels is others' lack of it. That is his misfortune. Some such frame of mind, however, should not be allowed to harden into a belief that he may attack a court's decision in words calculated to jettison the time-honored aphorism that courts are the temples of right. (Per Justice Sanchez in Rheem of the Philippines vs. Ferrer, L-22979. June 26, 1967)

In his relations with the courts, a lawyer may not divide his personality so as to be an attorney at one time and a mere citizen at another. Thus, statements made by an attorney in private conversations or communications 16 or in the course of a political, campaign, 17 if couched in insulting language as to bring into scorn and disrepute the administration of justice, may subject the attorney to disciplinary action.

Of fundamental pertinence at this juncture is an examination of relevant parallel precedents.

1. Admitting that a "judge as a public official is neither sacrosanct nor immune to public criticism of his conduct in office," the Supreme Court of Florida in State v. Calhoon, 102 So. 2d 604, 608, nevertheless declared that "any conduct of a lawyer which brings into scorn and disrepute the administration of justice demands condemnation and the application of appropriate penalties," adding that:

It would be contrary to, every democratic theory to hold that a judge or a court is beyond bona fide comments and criticisms which do not exceed the bounds of decency and truth or which are not aimed at. the destruction of public confidence in the judicial system as such. However, when the likely impairment of the administration of justice the direct product of false and scandalous accusations then the rule is otherwise.

2. In In Re Glenn, 130 N.W. 2d 672, an attorney was suspended for putting out and circulating a leaflet entitled "JUSTICE??? IN OTUMWA," which accused a municipal judge of having committed judicial error, of being so prejudiced as to deny his clients a fair trial on appeal and of being subject to the control of a group of city officials. As a prefatory statement he wrote: "They say that Justice is BLIND, but it took Municipal Judge Willard to prove that it is also DEAF and DUMB!" The court did not hesitate to find that the leaflet went much further than the accused, as a lawyer, had a right to do.

The entire publication evidences a desire on the part Of the accused to belittle and besmirch the court and to bring it into disrepute with the general public.

3. In In Re Humphrey, 163 Pac. 60, the Supreme Court of California affirmed the two-year suspension of an attorney who published a circular assailing a judge who at that time was a candidate for re-election to a judicial office. The circular which referred to two


decisions of the judge concluded with a statement that the judge "used his judicial office to enable -said bank to keep that money." Said the court:

We are aware that there is a line of authorities which place no limit to the criticism members of the bar may make regarding the capacity, impartiality, or integrity of the courts, even though it extends to the deliberate publication by the attorney capable of correct reasoning of baseless insinuations against the intelligence and integrity of the highest courts. See State Board, etc. v. Hart. 116 N.W. 212, 17 LRA (N.S.) 585, 15 Ann Cas 197 and note: Ex parte Steinman 95 Pac. 220, 40 Am. Rep. 637. In the first case mentioned it was observed, for instance:

"It may be (although we do not so decide) that a libelous publication by an attorney, directed against a judicial officer, could be so vile and of such a nature as to justify the disbarment of its author."

Yet the false charges made by an attorney in that case were of graver character than those made by the respondent here. But, in our view, the better rule is that which requires of those who are permitted to enjoy the privilege of practicing law the strictest observance at all times of the principles of truth, honesty and fairness, especially in their criticism of the courts, to the end that the public confidence in the due administration of justice be upheld, and the dignity and usefulness of the courts be maintained. In re Collins, 81 Pac. 220.

4. In People ex rel Chicago Bar Asso. v. Metzen, 123 N.E. 734, an attorney, representing a woman who had been granted a divorce, attacked the judge who set aside the decree on bill of review. He wrote the judge a threatening letter and gave the press the story of a proposed libel suit against the judge and others. The letter began:

Unless the record in In re Petersen v. Petersen is cleared up so that my name is protected from the libel, lies, and perjury committed in the cases involved, I shall be compelled to resort to such drastic action as the law allows and the case warrants.

Further, he said: "However let me assure you I do not intend to allow such dastardly work to go unchallenged," and said that he was engaged in dealing with men and not irresponsible political manikins or appearances of men. Ordering the attorney's disbarment, the Supreme Court of Illinois declared:

... Judges are not exempt from just criticism, and whenever there is proper ground for serious complaint against a judge, it is the right and duty of a lawyer to submit his grievances to the proper authorities, but the public interest and the administration of the law demand that the courts should have the confidence and respect of the people. Unjust criticism, insulting language, and offensive conduct toward the judges personally by attorneys, who are officers of the court, which tend to bring the courts and the law into disrepute and to destroy public confidence in their integrity, cannot be permitted. The letter written to the judge was plainly an attempt to intimidate and influence him in the discharge of judicial functions, and the bringing of the unauthorized suit, together with the write-up in the Sunday papers, was intended and calculated to bring the court into disrepute with the public.

5. In a public speech, a Rhode Island lawyer accused the courts of the state of being influenced by corruption and greed, saying that the seats of the Supreme Court were bartered. It does not appear that the attorney had criticized any of the opinions or decisions of the Court. The lawyer was charged with unprofessional conduct, and was ordered suspended for a period of two years. The Court said:

A calumny of that character, if believed, would tend to weaken the authority of the court against whose members it was made, bring its judgments into contempt, undermine its influence as an unbiased arbiter of the people's right, and interfere with the administration of justice. ...

Because a man is a member of the bar the court will not, under the guise of disciplinary proceedings, deprive him of any part of that freedom of speech which he possesses as a citizen. The acts and decisions of the courts of this state, in cases that have reached final determination, are not exempt from fair and honest comment and criticism. It is only when an attorney transcends the limits of legitimate criticism that he will be held responsible for an abuse of his liberty of speech. We well understand that an independent bar, as well as independent court, is always a vigilant defender of civil rights. In Re Troy, 111 Atl. 723. 725.


6. In In Re Rockmore, 111 NYS 879, an attorney was suspended for six months for submitting to an appellate court an affidavit reflecting upon the judicial integrity of the court from which the appeal was taken. Such action, the Court said, constitutes unprofessional conduct justifying suspension from practice, notwithstanding that he fully retracted and withdrew the statements, and asserted that the affidavit was the result of an impulse caused by what he considered grave injustice. The Court said:

We cannot shut our eyes to the fact that there is a growing habit in the profession of criticising the motives and integrity of judicial officers in the discharge of their duties, and thereby reflecting on the administration of justice and creating the impression that judicial action is influenced by corrupt or improper motives. Every attorney of this court, as well as every other citizen, has the right and it is his duty, to submit charges to the authorities in whom is vested the power to remove judicial officers for any conduct or act of a judicial officer that tends to show a violation of his duties, or would justify an inference that he is false to his trust, or has improperly administered the duties devolved upon him; and such charges to the tribunal, if based upon reasonable inferences, will be encouraged, and the person making them protected. ... While we recognize the inherent right of an attorney in a case decided against him, or the right of the Public generally, to criticise the decisions of the courts, or the reasons announced for them, the habit of criticising the motives of judicial officers in the performance of their official duties, when the proceeding is not against the officers whose acts or motives are criticised, tends to subvert the confidence of the community in the courts of justice and in the administration of justice; and when such charges are made by officers of the courts, who are bound by their duty to protect the administration of justice, the attorney making such charges is guilty of professional misconduct.

7. In In Re Mitchell, 71 So. 467, a lawyer published this statement:

I accepted the decision in this case, however, with patience, barring possible temporary observations more or less vituperative and finally concluded, that, as my clients were foreigners, it might have been expecting too much to look for a decision in their favor against a widow residing here.

The Supreme Court of Alabama declared that:

... the expressions above set out, not only transcend the bounds of propriety and privileged criticism, but are an unwarranted attack, direct, or by insinuation and innuendo, upon the motives and integrity of this court, and make out a prima facie case of improper conduct upon the part of a lawyer who holds a license from this court and who is under oath to demean himself with all good fidelity to the court as well as to his client.

The charges, however, were dismissed after the attorney apologized to the Court.

8. In State ex rel. Dabney v. Breckenridge, 258 Pac. 747, an attorney published in a newspaper an article in which he impugned the motives of the court and its members to try a case, charging the court of having arbitrarily and for a sinister purpose undertaken to suspend the writ of habeas corpus. The Court suspended the respondent for 30 days, saying that:

The privileges which the law gives to members of the bar is one most subversive of the public good, if the conduct of such members does not measure up to the requirements of the law itself, as well as to the ethics of the profession. ...

The right of free speech and free discussion as to judicial determination is of prime importance under our system and ideals of government. No right thinking man would concede for a moment that the best interest to private citizens, as well as to public officials, whether he labors in a judicial capacity or otherwise, would be served by denying this right of free speech to any individual. But such right does not have as its corollary that members of the bar who are sworn to act honestly and honorably both with their client and with the courts where justice is administered, if administered at all, could ever properly serve their client or the public good by designedly misstating facts or carelessly asserting the law. Truth and honesty of purpose by members of the bar in such discussion is necessary. The health of a municipality is none the less impaired by a polluted water supply than is the health of the thought of a community toward the judiciary by the filthy wanton, and malignant misuse of members of the bar of the confidence the public, through its duly established courts, has reposed in them to deal with the affairs of the private individual, the protection of whose rights he lends his strength and money to


maintain the judiciary. For such conduct on the part of the members of the bar the law itself demands retribution — not the court.

9. In Bar Ass'n of San Francisco v. Philbrook, 170 Pac. 440, the filing of an affidavit by an attorney in a pending action using in respect to the several judges the terms criminal corrupt, and wicked conspiracies,," "criminal confederates," "colossal and confident insolence," "criminal prosecution," "calculated brutality," "a corrupt deadfall," and similar phrases, was considered conduct unbecoming of a member of the bar, and the name of the erring lawyer was ordered stricken from the roll of attorneys.

10. In State Board of Examiners v. Hart, 116 N.W. 215, the erring attorney claimed that greater latitude should be allowed in case of criticism of cases finally adjudicated than in those pending. This lawyer wrote a personal letter to the Chief Justice of the Supreme Court of Minnesota impugning both the intelligence and the integrity of the said Chief Justice and his associates in the decisions of certain appeals in which he had been attorney for the defeated litigants. The letters were published in a newspaper. One of the letters contained this paragraph:

You assigned it (the property involved) to one who has no better right to it than the burglar to his plunder. It seems like robbing a widow to reward a fraud, with the court acting as a fence, or umpire, watchful and vigilant that the widow got no undue advantage. ... The point is this: Is a proper motive for the decisions discoverable, short of assigning to the court emasculated intelligence, or a constipation of morals and faithlessness to duty? If the state bar association, or a committee chosen from its rank, or the faculty of the University Law School, aided by the researches of its hundreds of bright, active students, or if any member of the court, or any other person, can formulate a statement of a correct motive for the decision, which shall not require fumigation before it is stated, and quarantine after it is made, it will gratify every right-minded citizen of the state to read it.

The Supreme Court of Minnesota, in ordering the suspension of the attorney for six months, delivered its opinion as follows:

The question remains whether the accused was guilty of professional misconduct in sending to the Chief Justice the letter addressed to him. This was done, as we have found, for the very purpose of insulting him and the other justices of this court; and the insult was so directed to the Chief Justice personally because of acts done by him and his associates in their official capacity. Such a communication, so made, could never subserve any good purpose. Its only effect in any case would be to gratify the spite of an angry attorney and humiliate the officers so assailed. It would not and could not ever enlighten the public in regard to their judicial capacity or integrity. Nor was it an exercise by the accused of any constitutional right, or of any privilege which any reputable attorney, uninfluenced by passion, could ever have any occasion or desire to assert. No judicial officer, with due regard to his position, can resent such an insult otherwise than by methods sanctioned by law; and for any words, oral or written, however abusive, vile, or indecent, addressed secretly to the judge alone, he can have no redress in any action triable by a jury. "The sending of a libelous communication or libelous matter to the person defamed does not constitute an actionable publication." 18 Am. & Eng. Enc. Law (2d Ed.) p. 1017. In these respects the sending by the accused of this letter to the Chief Justice was wholly different from his other acts charged in the accusation, and, as we have said, wholly different principles are applicable thereto.

The conduct of the accused was in every way discreditable; but so far as he exercised the rights of a citizen, guaranteed by the Constitution and sanctioned by considerations of public policy, to which reference has been made, he was immune, as we hold, from the penalty here sought to be enforced. To that extent his rights as a citizen were paramount to the obligation which he had assumed as an officer of this court. When, however he proceeded and thus assailed the Chief Justice personally, he exercised no right which the court can recognize, but, on the contrary, willfully violated his obligation to maintain the respect due to courts and judicial officers. "This obligation is not discharged by merely observing the rules of courteous demeanor in open court, but it includes abstaining out of court from all insulting language and offensive conduct toward the judges personally for their official acts."Bradley v. Fisher, 13 Wall. (U.S.) 355, 20 L. Ed. 646. And there appears to be no distinction, as regards the principle involved, between the indignity of an assault by an attorney upon a judge, induced by his official act, and a personal insult for like cause by written or spoken words addressed to the judge in his chambers or at his home or elsewhere. Either act constitutes misconduct wholly different from criticism of judicial acts addressed or spoken to others. The distinction made is, we think entirely logical and well sustained by authority. It was recognized in Ex parte McLeod supra. While the court in that case, as has been shown, fully sustained the right of a citizen to criticise rulings of the court in actions which are ended, it held that one might be summarily punished for assaulting a judicial officer, in that case a commissioner of the court, for his rulings in a cause wholly concluded. "Is


it in the power of any person," said the court, "by insulting or assaulting the judge because of official acts, if only the assailant restrains his passion until the judge leaves the building, to compel the judge to forfeit either his own self-respect to the regard of the people by tame submission to the indignity, or else set in his own person the evil example of punishing the insult by taking the law in his own hands? ... No high-minded, manly man would hold judicial office under such conditions."

That a communication such as this, addressed to the Judge personally, constitutes professional delinquency for which a professional punishment may be imposed, has been directly decided. "An attorney who, after being defeated in a case, wrote a personal letter to the trial justice, complaining of his conduct and reflecting upon his integrity as a justice, is guilty of misconduct and will be disciplined by the court." Matter of Manheim 133 App. Div. 136, 99 N.Y. Supp. 87 The same is held in Re Griffin (City Ct.) 1 N.Y. 7 and in Re Wilkes (City Ct.) 3 N.Y. In the latter case it appeared that the accused attorney had addressed a sealed letter to a justice of the City Court of New York, in which it was stated, in reference to his decision: "It is not law; neither is it common sense. The result is I have been robbed of 80." And it was decided that, while such conduct was not a contempt under the state, the matter should be "called to the attention of the Supreme Court, which has power to discipline the attorney." "If," says the court, "counsel learned in the law are permitted by writings leveled at the heads of judges, to charge them with ignorance, with unjust rulings, and with robbery, either as principals or accessories, it will not be long before the general public may feel that they may redress their fancied grievances in like manner, and thus the lot of a judge will be anything but a happy one, and the administration of justice will fall into bad repute."

The recent case of Johnson v. State (Ala.) 44 South. 671, was in this respect much the same as the case at bar. The accused, an attorney at law, wrote and mailed a letter to the circuit judge, which the latter received by due course of mail, at his home, while not holding court, and which referred in insulting terms to the conduct of the judge in a cause wherein the accused had been one of the attorneys. For this it was held that the attorney was rightly disbarred in having "willfully failed to maintain respect due to him [the judge] as a judicial officer, and thereby breached his oath as an attorney." As recognizing the same principle, and in support of its application to the facts of this case, we cite the following: Ex parte Bradley, 7 Wall (U.S.) 364, 19 L. Ed. 214; Beene v. State, 22 Ark. 149;Commonwealth v. Dandridge, 2 Va. Cas. 408; People v. Green, 7 Colo 237, 244, 3 Pac. 65, 374, 49 Am. Rep. 351; Smith's Appeal, 179 Pa. 14, 36 Atl. 134; Scouten's Appeal, 186 Pa. 270, Atl. 481.

Our conclusion is that the charges against the accused have been so far sustained as to make it our duty to impose such a penalty as may be sufficient lesson to him and a suitable warning to others. ...

11. In Cobb v. United States, 172 F. 641, the court affirmed a lawyer's suspension for 18 months for publishing a letter in a newspaper in which he accused a judge of being under the sinister influence of a gang that had paralyzed him for two years.

12. In In Re Graves, 221 Pac. 411, the court held that an attorney's unjustifiable attack against the official acts and decisions of a judge constitutes "moral turpitude." There, the attorney was disbarred for criticising not only the judge, but his decisions in general claiming that the judge was dishonest in reaching his decisions and unfair in his general conduct of a case.

13. In In Re Doss, 12 N.E. 2d 659, an attorney published newspaper articles after the trial of cases, criticising the court in intemperate language. The invariable effect of this sort of propaganda, said the court, is to breed disrespect for courts and bring the legal profession into disrepute with the public, for which reason the lawyer was disbarred.

14. In State v. Grimes, 354 Pac. 2d 108, an attorney, dissatisfied with the loss of a case, prepared over a period of years vicious attacks on jurists. The Oklahoma Supreme Court declared that his acts involved such gross moral turpitude as to make him unfit as a member of the bar. His disbarment was ordered, even though he expressed an intention to resign from the bar.

The teaching derived from the above disquisition and impressive affluence of judicial pronouncements is indubitable: Post-litigation utterances or publications, made by lawyers, critical of the courts and their judicial actuations, whether amounting to a crime or not, which transcend the permissible bounds of fair comment and legitimate criticism and thereby tend to bring them into disrepute or to subvert public confidence in their integrity and in the orderly administration of justice, constitute grave professional misconduct which may be visited with disbarment or other lesser appropriate disciplinary sanctions by the Supreme Court in the exercise of the prerogatives inherent in it as the duly constituted guardian of the morals and ethics of the legal fraternity.


Of course, rarely have we wielded our disciplinary powers in the face of unwarranted outbursts of counsel such as those catalogued in the above-cited jurisprudence. Cases of comparable nature have generally been disposed of under the power of courts to punish for contempt which, although resting on different bases and calculated to attain a different end, nevertheless illustrates that universal abhorrence of such condemnable practices.

A perusal of the more representative of these instances may afford enlightenment.

1. In Salcedo vs. Hernandez, 61 Phil. 724, where counsel branded the denial of his motion for reconsideration as "absolutely erroneous and constituting an outrage to the rigths of the petitioner Felipe Salcedo and a mockery of the popular will expressed at the polls," this Court, although conceding that

It is right and plausible that an attorney, in defending the cause and rights of his client, should do so with all the fervor and energy of which he is capable, but it is not, and never will be so for him to exercise said right by resorting to intimidation or proceeding without the propriety and respect which the dignity of the courts requires. The reason for this is that respect for the courts guarantees the stability of their institution. Without such guaranty, said institution would be resting on a very shaky foundation,

found counsel guilty of contempt inasmuch as, in its opinion, the statements made disclosed

... an inexcusable disrespect of the authority of the court and an intentional contempt of its dignity, because the court is thereby charged with no less than having proceeded in utter disregard of the laws, the rights to the parties, and 'of the untoward consequences, or with having abused its power and mocked and flouted the rights of Attorney Vicente J. Francisco's client ... .

2. In In re Sotto, 82 Phil. 595, counsel, a senator and the author of the Press Freedom Law, reaching to, the imprisonment for contempt of one Angel Parazo, who, invoking said law, refused to divulge the source of a news item carried in his paper, caused to be published in i local newspaper a statement expressing his regret "that our High Tribunal has not only erroneously interpreted said law, but it is once more putting in evidence the incompetency or narrow mindedness of the majority of its members," and his belief that "In the wake of so many blunders and injustices deliberately committed during these last years, ... the only remedy to put an end to go much evil, is to change the members of the Supreme Court," which tribunal he denounced as "a constant peril to liberty and democracy" and "a far cry from the impregnable bulwark of justice of those memorable times of Cayetano Arellano, Victorino Mapa, Manuel Araullo and other learned jurists who were the honor and glory of the Philippine Judiciary." He there also announced that one of the first measures he would introduce in then forthcoming session of Congress would have for its object the complete reorganization of the Supreme Court. Finding him in contempt, despite his avowals of good faith and his invocation of the guarantee of free speech, this Court declared:

But in the above-quoted written statement which he caused to be published in the press, the respondent does not merely criticize or comment on the decision of the Parazo case, which was then and still is pending consideration by this Court upon petition of Angel Parazo. He not only intends to intimidate the members of this Court with the presentation of a bill in the next Congress, of which he is one of the members, reorganizing the Supreme Court and reducing the number of Justices from eleven, so as to change the members of this Court which decided the Parazo case, who according to his statement, are incompetent and narrow minded, in order to influence the final decision of said case by this Court, and thus embarrass or obstruct the administration of justice. But the respondent also attacks the honesty and integrity of this Court for the apparent purpose of bringing the Justices of this Court into disrepute and degrading the administration. of justice ... .

To hurl the false charge that this Court has been for the last years committing deliberately so many blunders and injustices, that is to say, that it has been deciding in favor of Que party knowing that the law and justice is on the part of the adverse party and not on the one in whose favor the decision was rendered, in many cases decided during the last years, would tend necessarily to undermine the confidence of the people in the honesty and integrity of the members of this Court, and consequently to lower ,or degrade the administration of justice by this Court. The Supreme Court of the Philippines is, under the Constitution, the last bulwark to which the Filipino people may repair to obtain relief for their grievances or protection of their rights when these are trampled upon, and if the people lose their confidence in the honesty and integrity of the members of this Court and believe that they cannot expect justice therefrom, they might be driven to take the law into their own hands, and disorder and perhaps chaos might be the result. As a member of the bar and an officer of the courts, Atty. Vicente Sotto, like any other, is in duty bound to uphold the dignity and authority of this Court, to which he owes fidelity according to the


oath he has taken as such attorney, and not to promote distrust in the administration of justice. Respect to the courts guarantees the stability of other institutions, which without such guaranty would be resting on a very shaky foundation.

Significantly, too, the Court therein hastened to emphasize that

... an attorney as an officer of the court is under special obligation to be respectful in his conduct and communication to the courts; he may be removed from office or stricken from the roll of attorneys as being guilty of flagrant misconduct (17 L.R.A. [N.S.], 586, 594.)

3. In Rheem of the Philippines vs. Ferrer: In re Proceedings against Alfonso Ponce Enrile, et al., supra , where counsel charged this Court with having "repeatedly fallen" into ,the pitfall of blindly adhering to its previous "erroneous" pronouncements, "in disregard of the law on jurisdiction" of the Court of Industrial Relations, our condemnation of counsel's misconduct was unequivocal. Articulating the sentiments of the Court, Mr. Justice Sanchez stressed:

As we look back at the language (heretofore quoted) employed in the motion for reconsideration, implications there are which inescapably arrest attention. It speaks of one pitfall into which this Court has repeatedly fallen whenever the jurisdiction of the Court of Industrial Relations comes into question. That pitfall is the tendency of this Court to rely on its own pronouncements in disregard of the law on jurisdiction. It makes a sweeping charge that the decisions of this Court, blindly adhere to earlier rulings without as much as making any reference to and analysis of the pertinent statute governing the jurisdiction of the industrial court. The plain import of all these is that this Court is so patently inept that in determining the jurisdiction of the industrial court, it has committed error and continuously repeated that error to the point of perpetuation. It pictures this Court as one which refuses to hew to the line drawn by the law on jurisdictional boundaries. Implicit in the quoted statements is that the pronouncements of this Court on the jurisdiction of the industrial court are not entitled to respect. Those statements detract much from the dignity of and respect due this Court. They bring into question the capability of the members — and some former members of this Court to render justice. The second paragraph quoted yields a tone of sarcasm which counsel labelled as "so called" the "rule against splitting of jurisdiction."

Similar thoughts and sentiments have been expressed in other cases 18 which, in the interest of brevity, need not now be reviewed in detail.

Of course, a common denominator underlies the aforecited cases — all of them involved contumacious statements made in pleadings filed pending litigation. So that, in line with the doctrinal rule that the protective mantle of contempt may ordinarily be invoked only against scurrilous remarks or malicious innuendoes while a court mulls over a pending case and not after the conclusion thereof, 19 Atty. Almacen would now seek to sidestep the thrust of a contempt charge by his studied emphasis that the remarks for which he is now called upon to account were made only after this Court had written finis to his appeal. This is of no moment.

The rule that bars contempt after a judicial proceeding has terminated, has lost much of its vitality. For sometime, this was the prevailing view in this jurisdiction. The first stir for a modification thereof, however, came when, inPeople vs. Alarcon, 20 the then Chief Justice Manuel V. Moran dissented with the holding of the majority, speaking thru Justice Jose P. Laurel, which upheld the rule above-adverted to. A complete disengagement from the settled rule was later to be made in In re Brillantes, 21 a contempt proceeding, where the editor of the Manila Guardianwas adjudged in contempt for publishing an editorial which asserted that the 1944 Bar Examinations were conducted in a farcical manner after the question of the validity of the said examinations had been resolved and the case closed. Virtually, this was an adoption of the view expressed by Chief Justice Moran in his dissent inAlarcon to the effect that them may still be contempt by publication even after a case has been terminated. Said Chief Justice Moran in Alarcon:

A publication which tends to impede, obstruct, embarrass or influence the courts in administering justice in a pending suit or proceeding, constitutes criminal contempt which is 'summarily punishable by courts. A publication which tends to degrade the courts and to destroy public confidence in them or that which tends to bring them in any way into disrepute, constitutes likewise criminal contempt, and is equally punishable by courts. What is sought, in the first kind of contempt, to be shielded against the influence of newspaper comments, is the all-important duty of the courts to administer justice in the decision of a pending case. In the second kind of contempt, the punitive hand of justice is extended to vindicate the courts from any act or conduct calculated to bring them into disfavor or to destroy public confidence in them. In the first there is no contempt where there is no action pending, as there is no decision which might in any way be influenced by the newspaper publication. In


the second, the contempt exists, with or without a pending case, as what is sought to be protected is the court itself and its dignity. Courts would lose their utility if public confidence in them is destroyed.

Accordingly, no comfort is afforded Atty. Almacen by the circumstance that his statements and actuations now under consideration were made only after the judgment in his client's appeal had attained finality. He could as much be liable for contempt therefor as if it had been perpetrated during the pendency of the said appeal.

More than this, however, consideration of whether or not he could be held liable for contempt for such post litigation utterances and actuations, is here immaterial. By the tenor of our Resolution of November 17, 1967, we have confronted the situation here presented solely in so far as it concerns Atty. Almacen's professional identity, his sworn duty as a lawyer and his fitness as an officer of this Court, in the exercise of the disciplinary power the morals inherent in our authority and duty to safeguard and ethics of the legal profession and to preserve its ranks from the intrusions of unprincipled and unworthy disciples of the noblest of callings. In this inquiry, the pendency or non-pendency of a case in court is altogether of no consequence. The sole objective of this proceeding is to preserve the purity of the legal profession, by removing or suspending a member whose misconduct has proved himself unfit to continue to be entrusted with the duties and responsibilities belonging to the office of an attorney.

Undoubtedly, this is well within our authority to do. By constitutional mandate, 22 our is the solemn duty, amongst others, to determine the rules for admission to the practice of law. Inherent in this prerogative is the corresponding authority to discipline and exclude from the practice of law those who have proved themselves unworthy of continued membership in the Bar. Thus —

The power to discipline attorneys, who are officers of the court, is an inherent and incidental power in courts of record, and one which is essential to an orderly discharge of judicial functions. To deny its existence is equivalent to a declaration that the conduct of attorneys towards courts and clients is not subject to restraint. Such a view is without support in any respectable authority, and cannot be tolerated. Any court having the right to admit attorneys to practice and in this state that power is vested in this court-has the inherent right, in the exercise of a sound judicial discretion to exclude them from practice. 23

This, because the admission of a lawyer to the practice of law is a representation to all that he is worthy of their confidence and respect. So much so that —

... whenever it is made to appear to the court that an attorney is no longer worthy of the trust and confidence of the public and of the courts, it becomes, not only the right, but the duty, of the court which made him one of its officers, and gave him the privilege of ministering within its bar, to withdraw the privilege. Therefore it is almost universally held that both the admission and disbarment of attorneys are judicial acts, and that one is admitted to the bar and exercises his functions as an attorney, not as a matter of right, but as a privilege conditioned on his own behavior and the exercise of a just and sound judicial discretion. 24

Indeed, in this jurisdiction, that power to remove or suspend has risen above being a mere inherent or incidental power. It has been elevated to an express mandate by the Rules of Court. 25

Our authority and duty in the premises being unmistakable, we now proceed to make an assessment of whether or not the utterances and actuations of Atty. Almacen here in question are properly the object of disciplinary sanctions.

The proffered surrender of his lawyer's certificate is, of course, purely potestative on Atty. Almacen's part. Unorthodox though it may seem, no statute, no law stands in its way. Beyond making the mere offer, however, he went farther. In haughty and coarse language, he actually availed of the said move as a vehicle for his vicious tirade against this Court. The integrated entirety of his petition bristles with vile insults all calculated to drive home his contempt for and disrespect to the Court and its members. Picturing his client as "a sacrificial victim at the altar of hypocrisy," he categorically denounces the justice administered by this Court to be not only blind "but also deaf and dumb." With unmitigated acerbity, he virtually makes this Court and its members with verbal talons, imputing to the Court the perpetration of "silent injustices" and "short-cut justice" while at the same time branding its members as "calloused to pleas of justice." And, true to his announced threat to argue the cause of his client "in the people's forum," he caused the publication in the papers of an account of his actuations, in a calculated effort ;to startle the public, stir up public indignation and disrespect toward the Court. Called upon to make an explanation, he expressed no regret, offered no apology. Instead, with characteristic arrogance, he rehashed and reiterated his vituperative attacks and, alluding to the Scriptures, virtually tarred and feathered the Court and its members as inveterate hypocrites incapable of administering justice and unworthy to impose disciplinary sanctions upon him.


The virulence so blatantly evident in Atty. Almacen's petition, answer and oral argumentation speaks for itself. The vicious language used and the scurrilous innuendoes they carried far transcend the permissible bounds of legitimate criticism. They could never serve any purpose but to gratify the spite of an irate attorney, attract public attention to himself and, more important of all, bring ;this Court and its members into disrepute and destroy public confidence in them to the detriment of the orderly administration of justice. Odium of this character and texture presents no redeeming feature, and completely negates any pretense of passionate commitment to the truth. It is not a whit less than a classic example of gross misconduct, gross violation of the lawyer's oath and gross transgression of the Canons of Legal Ethics. As such, it cannot be allowed to go unrebuked. The way for the exertion of our disciplinary powers is thus laid clear, and the need therefor is unavoidable.

We must once more stress our explicit disclaimer of immunity from criticism. Like any other Government entity in a viable democracy, the Court is not, and should not be, above criticism. But a critique of the Court must be intelligent and discriminating, fitting to its high function as the court of last resort. And more than this, valid and healthy criticism is by no means synonymous to obloquy, and requires detachment and disinterestedness, real qualities approached only through constant striving to attain them. Any criticism of the Court must, possess the quality of judiciousness and must be informed -by perspective and infused by philosophy. 26

It is not accurate to say, nor is it an obstacle to the exercise of our authority in ;the premises, that, as Atty. Almacen would have appear, the members of the Court are the "complainants, prosecutors and judges" all rolled up into one in this instance. This is an utter misapprehension, if not a total distortion, not only of the nature of the proceeding at hand but also of our role therein.

Accent should be laid on the fact that disciplinary proceedings like the present are sui generis. Neither purely civil nor purely criminal, this proceeding is not — and does not involve — a trial of an action or a suit, but is rather an investigation by the Court into the conduct of its officers. 27 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. 28 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. 29 In such posture, there can thus be no occasion to speak of a complainant or a prosecutor.

Undeniably, the members of the Court are, to a certain degree, aggrieved parties. Any tirade against the Court as a body is necessarily and inextricably as much so against the individual members thereof. But in the exercise of its disciplinary powers, the Court acts as an entity separate and distinct from the individual personalities of its members. Consistently with the intrinsic nature of a collegiate court, the individual members act not as such individuals but. only as a duly constituted court. Their distinct individualities are lost in the majesty of their office.30 So that, in a very real sense, if there be any complainant in the case at bar, it can only be the Court itself, not the individual members thereof — as well as the people themselves whose rights, fortunes and properties, nay, even lives, would be placed at grave hazard should the administration of justice be threatened by the retention in the Bar of men unfit to discharge the solemn responsibilities of membership in the legal fraternity.

Finally, the power to exclude persons from the practice of law is but a necessary incident of the power to admit persons to said practice. By constitutional precept, this power is vested exclusively in this Court. This duty it cannot abdicate just as much as it cannot unilaterally renounce jurisdiction legally invested upon it. 31 So that even if it be conceded that the members collectively are in a sense the aggrieved parties, that fact alone does not and cannot disqualify them from the exercise of that power because public policy demands that they., acting as a Court, exercise the power in all cases which call for disciplinary action. The present is such a case. In the end, the imagined anomaly of the merger in one entity of the personalities of complainant, prosecutor and judge is absolutely inexistent.

Last to engage our attention is the nature and extent of the sanctions that may be visited upon Atty. Almacen for his transgressions. As marked out by the Rules of Court, these may range from mere suspension to total removal or disbarment. 32 The discretion to assess under the circumstances the imposable sanction is, of course, primarily addressed to the sound discretion of the Court which, being neither arbitrary and despotic nor motivated by personal animosity or prejudice, should ever be controlled by the imperative need that the purity and independence of the Bar be scrupulously guarded and the dignity of and respect due to the Court be zealously maintained.

That the misconduct committed by Atty. Almacen is of considerable gravity cannot be overemphasized. However, heeding the stern injunction that disbarment should never be decreed where a lesser sanction would accomplish the end desired, and believing that it Cases in Legal Ethics Bachelor of Laws 3A 61

may not perhaps be futile to hope that in the sober light of some future day, Atty. Almacen will realize that abrasive language never fails to do disservice to an advocate and that in every effervescence of candor there is ample room for the added glow of respect, it is our view that suspension will suffice under the circumstances. His demonstrated persistence in his misconduct by neither manifesting repentance nor offering apology therefor leave us no way of determining how long that suspension should last and, accordingly, we are impelled to decree that the same should be indefinite. This, we are empowered to do not alone because jurisprudence grants us discretion on the matter 33 but also because, even without the comforting support of precedent, it is obvious that if we have authority to completely exclude a person from the practice of law, there is no reason why indefinite suspension, which is lesser in degree and effect, can be regarded as falling outside of the compass of that authority. The merit of this choice is best shown by the fact that it will then be left to Atty. Almacen to determine for himself how long or how short that suspension shall last. For, at any time after the suspension becomes effective he may prove to this Court that he is once again fit to resume the practice of law.

ACCORDINGLY, IT IS THE SENSE of the Court that Atty. Vicente Raul Almacen be, as he is hereby, suspended from the practice of law until further orders, the suspension to take effect immediately.

Let copies of this resolution. be furnished the Secretary of Justice, the Solicitor General and the Court of Appeals for their information and guidance.



Manila


FIRST DIVISION

G.R. No. L-44388 January 30, 1985

VICTORIANO BULACAN, plaintiff-appellee, vs.FAUSTINO TORCINO and FELIPA TORCINO, defendants-appellants.

GUTIERREZ, JR., J.:

The issue before us is whether or not a complaint for forcible entry and detainer should be dismissed by a municipal court on the ground that the plaintiff knowingly asked a non-member of the bar to sign and file it for him.

A complaint for forcible entry and damages with preliminary mandatory injunction was filed with the Municipal Court of Baybay, Leyte by Victoriano Bulacan against Faustino Torcino and Felipa Torcino. The complaint was signed by Nicolas Nuñes, Jr., "Friend counsel for the Plaintiff" but was verified by the plaintiff-appellee himself. The verification reads:

I, VICTORIANO BULACAN, of legal age, Filipino, married and a resident of Baybay, Leyte after having been duly sworn to in accordance with law thereby depose and say:

That I am the plaintiff in the above-entitled case; that I have caused the above complaint to be prepared by Nicolas P. Nuñes, Jr. and that I have voluntarily asked, sought and requested his aid to file, claim, prosecute, and defend in court my civil case against the defendants Faustino Torcino et al or others in connection with this case at the Municipal Court of Baybay, Leyte; that I have read and known the contents thereon and the allegations therein are true and correct to my own knowledge.

IN WITNESS WHEREOF, I have hereunto set my hand this 4th day of August, 1972 at Baybay, Leyte.

s/VICTORIANO BULACANt/VICTORIANO BULACAN

PlaintiffSUBSCRIBED AND SWORN to before me this 4th day of August, 1972 at Baybay, Leyte by Victoriano Bulacan with his Res. Cert. No. A-930280 dated Aug. 4, 1972 issued at Baybay, Leyte.

s/NICOLAS P. NUÑES, JRt/NICOLAS P. NUÑES, JR.

Notary Public

Until December 31st, 1972

Doc. No. 344Page No. 56Book No. VIISeries of 1972

When the defendants-appellants filed their answer, they did not question the fact that the complaint was signed by Nicolas Nuñes, Jr.

On February 10, 1973, the municipal court issued the following order:

The contending parties are given one week time to submit the proposed compromise agreement in connection with his case.

Failure to do so will constrain this court to render judgment on the basis of the ocular inspection conducted sometime on December, 1972.


Due to the failure of the parties to settle their case amicably, the court rendered a decision ordering the Torcinos to demolish and remove the portion of their house which was illegally constructed on the land of the plaintiff The municipal court stated that there is no doubt that Victoriano Bulacan is the owner and has been in possession of Lot No. 5998 and that the lot of the defendants-appellants is on the eastern portion of said lot. The court found that the Torcinos constructed a residential house which unfortunately encroached on the lot of the plaintiff.

The Torcinos appealed the decision to the Court of First Instance of Leyte.

On September 18, 1973, the appellants Torcinos filed a motion to dismiss the complaint on the ground that the complaint was not signed by the plaintiff or by an admitted attorney, and therefore must be considered as sham and false.

Four days later, another motion to dismiss the complaint was filed with the additional discussion that the fact that the complaint is verified, does not in itself cure the defect obtaining in the complaint.

On September 24, 1973, appellee Bulacan opposed the motion and alleged that the motion to dismiss was not filed on time and the defenses therein were not pleaded in the answer in the municipal court and therefore, are deemed waived and may not be raised for the first time on appeal in the Court of First Instance. The opposition also stated that the complaint substantially conforms to the Rule.

On September 24, 1973, the Court of First Instance of Leyte denied the motion to dismiss. A motion for reconsideration was denied for lack of merit.

On December 7, 1973, when the case was called for continuance, the parties presented to the court a stipulation of facts which states and which we quote verbatim:

COME NOW, the plaintiff and the defendants duly assisted by their respective counsel and unto this Honorable Court most respectfully submits the following stipulation of facts, to wit:

1. That the plaintiff and the defendants hereby agree to relocate the defendants' land covered by Transfer Certificate of Title Number T-8133 which is hereto attached.

2. That should the findings of the Geodetic Engineer be that the present construction particularly the wallings is beyond the lot of the said defendants as defined and described in Transfer Certificate of Title No. T-8133 then the defendants win remove any portion of the wallings that maybe inside the land of the plaintiff and vacate from the premises encroached. However, should the findings of the Geodetic Engineer be that the walling constructed by the defendants does not encroach even an inch on the land of the plaintiff then the plaintiff hereby agrees to the dismissal of the present case.

3. That should the Geodetic Engineer finds out that the defendants has encroach the land of the plaintiff the defendants will be the one who will pay for the services of the Goedetic Engineer and should the findings be that no encroachment were made by the defendants, then the plaintiff should shoulder the expenses of the relocation survey.

4. That parties hereby agree that Geodetic Engineer Jaime Kudera be appointed by the Honorable Court to conduct and execute the relocation survey.

5. That plaintiff and defendants hereby agree to waive the claims and counterclaims for damages.

WHEREFORE, it is most respectfully prayed that the Honorable Court renders judgment on the basis of the above stipulation of facts.

The stipulation of facts was signed by plaintiff Victoriano Bulacan, his new counsel Atty. Diego A. Cala defendants Faustino and Felipa Torcino, and their counsel Gerardo A. Pabello

The court issued an order directing surveyor Jaime Kudera to conduct the relocation work on the basis of the stipulation.


On December 17, 1983, Kudera submitted his report and on the basis of his findings, the Court of First Instance of Leyte affirmed the decision of the municipal court.

The defendants appealed the case to the Court of Appeals and assigned two errors:

I

THAT THE TRIAL COURT ERRED IN DENYING THE MOTION TO DISMISS FILED BY THE DEFENDANTS APPELLANTS AND IN NOT DISMISSING THE COMPLAINT.

II

THAT THE TRIAL COURT ERRED IN DECIDING THE CASE AGAINST THE DEFENDANTS-APPELLANTS AND IN AFFIRMING THE DECISION OF THE MUNICIPAL COURT ON THE DECISION APPEALED FROM.

The Court of Appeals in a resolution dated August 7, 1976 certified the appeal to us on the ground that no testimonial or oral evidence was presented by the parties and, therefore, no factual matters are in issue in the appeal.

We affirm the decision of the lower court.

The Torcinos allege that the complaint is irregular as it was signed not by the plaintiff but by one who was not a member of the bar and who designated himself merely as "Friend counsel for the Plaintiff." The appellants argue that the municipal court did not acquire jurisdiction over the case. They invoke Section 5, Rule 7 which states:

SEC. 5. Signature and address.—Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated A party who is not represented by an attorney shall sign his pleading and state his address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. If a pleading is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken out as sham and false and the action may proceed as though the pleading had not been served. For a willful violation of this rule an attorney may be subjected to appropriate disciplinary action. Similar action may be taken if scandalous or indecent matter is inserted. (Emphasis supplied)

Under the facts of this case, however, the applicable provision is Section 34, Rule 138 of the Rules of Court which states:

SEC. 34. By whom litigation is conducted. — In the Court of a municipality a party may conduct his litigation in person with the aid of an agent or friend appointed by him for that purpose, or with the aid of an attorney. In any other court, a party may conduct his litigation personally or by aid of an attorney and his appearance must be either personal or by a duly authorized member of the bar. (Emphasis supplied)

The Rules are clear. In municipal courts, the litigant may be assisted by a friend, agent, or an attorney. However, in cases before the regional trial court, the litigant must be aided by a duly authorized member of the bar. The rule invoked by the Torcinos applies only to cases filed with the regional trial court and not to cases before a municipal court.

In the case of Cantimbuhan v. Cruz, Jr. (126 SCRA 190) we decided a similar issue and allowed the appearance of two senior law students as friends of the complainant-petitioner Cantimbuhan to prosecute the case before the sala of Judge Nicanor J. Cruz, Jr., of the Municipal Court of Parañaque.

Similarly, in the case of Laput v. Bernabe (55 Phil. 621) a law student was allowed to represent the accused in a case pending before the City Court of Manila.

Court procedures are often technical and may prove like shares to the ignorant or the unwary. In the past, our law has allowed non-lawyers to appear for party litigants in places where duly authorized members of the bar are not available. (U.S. v. Bacansas, 6 Phil. 539). For relatively simple litigation before municipal courts, the Rules still allow a more educated or capable person to appear in


behalf of a litigant who cannot get a lawyer. But for the protection of the parties and in the interest of justice, the requirement for appearances in regional trial courts and higher courts is more stringent.

In the case before us, the complaint was verified by the party litigant himself. In the verification, the plaintiff specifically stated that he had caused Mr. Nuñes to conduct the litigation and to sign the complaint in Ms behalf, indicating his awareness that Nuñes in not a registered lawyer. There is, therefore, added justification for the pleading to be admitted rather than dismissed. As the lower court has cited:

So it has been held that, where a pleading is not signed by the attorney as required, but is verified by the party, substantial rights have not been affected and the defect may be disregarded as against a motion to strike. (71 C.J.S. 954- 955)

Rules of pleading, practise, and procedure must be liberally construed so as to protect the rights and interests of the ties. As we stated in Paulino v. Court of Appeals (80 SCRA 257):

xxx xxx xxx

... pleadings, as well as remedial laws, should be construed liberally, in order that litigants may have ample opportunity to prove their respective claims, and that a possible denial of substantial justice, due to legal technicalities, may be avoided. ...

The Torcinos try to impugn the results of the relocation survey. We agree with the appellee that the appellants are now estopped on this issue because they themselves prayed in the stipulation of facts that the findings of the geodetic engineer would be bases for the decision of the court of first instance. We see no error, much less any grave abuse of discretion, in the lower courts' findings that the house of the Torcinos encroached on the lot of Victoriano Bulacan.

WHEREFORE, the decision of the court a quo is hereby AFFIRMED.

SO ORDERED.



Manila

EN BANC


G.R. No. L-23467 March 27, 1968

AMALGAMATED LABORERS' ASSOCIATION and/or FELISBERTO M. JAVIER for himself and as General President, ATTY. JOSEUR. CARBONELL, ET AL., petitioners, vs.HON. COURT OF INDUSTRIAL RELATIONS AND ATTY. LEONARDO C. FERNANDEZ, respondents.

Jose Ur. Carbonell for and in his own behalf as petitioner.Leonardo C. Fernandez for and in his own behalf as respondent.

SANCHEZ, J.:

Controversy over attorneys' fees for legal services rendered in CIR Case No. 70-ULP-Cebu.

The background facts are as follows:

On May 30, 1956, Florentino Arceo and 47 others together with their union, Amalgamated Laborers' Association, and/or Felisberto Javier, general president of said union, lodged a complaint 1 in the Court of Industrial Relations (CIR), for unfair labor practices specified in Sec. 4(a) 1, 2, 3 and 4 of the Industrial Peace Act. Made respondents were their former employer, Binalbagan Sugar Central Company, Inc. (Biscom), Rafael Jalandoni, its president and general manager; Gonzalo Guillen, its chief engineer and general factory superintendent; and Fraternal Labor Organization and/or Roberto Poli, its president.

Failing in their attempts to dismiss the complaint (motions to dismiss dated June 30, 1956 and July 6, 1956), 2 respondents Biscom, Jalandoni, and Guillen, on July 9, 1957, answered and counterclaimed. Respondents Fraternal Labor Union and Poli also filed their answer dated July 12, 1957.

With the issues joined, the case on the merits was heard before a trial commissioner.

At the hearings, only ten of the forty-eight complainant laborers appeared and testified. Two of these ten were permanent (regular) employees of respondent company; the remaining eight were seasonal workers. The regular employees were Arsenio Reyes and Fidel Magtubo. Seasonal workers were Catalino Bangoy, Juan Fernandez, Jose Garlitos, Dionisio Pido, Santiago Talagtag, Dominador Tangente, Felimon Villaluna and Brigido Casas.

On November 13, 1962, CIR, thru Associate Judge Arsenio I. Martinez, rendered judgment, which provides, inter alia, that the two regular employees (Reyes and Magtubo) be reinstated "to their former positions, without loss of seniority and other benefits which should have accrued to them had they not been illegally dismissed, with full back wages from the time of their said dismissals up to the time of their actual reinstatements, minus what they have earned elsewhere in the meantime" and that the eight seasonal workers "be readmitted to their positions as seasonal workers of respondent company (Biscom), with back wages as seasonal workers from the time they were not rehired at the start of the 1955-1956 milling season on October 1, 1955 up to the time they are actually reinstated, less the amount earned elsewhere during the period of their lay-off."

Respondents Biscom, Jalandoni and Guillen appealed direct to this Court. 3 On March 28, 1963, this Court dismissed the appeal, without costs. Ground: Petitioners therein did not seek reconsideration of CIR's decision of November 13, 1962. The judgment became final.

Upon the ten complainants' motion to name an official computer to determine the actual money due them, CIR, on June 4, 1963, directed the Chief Examiner of its Examining Division to go to the premises of Biscom and compute the back wages due the ten complainants.

On August 9, 1963, the Chief Examiner reported that the total net back wages due the ten complainants were P79,755.22. Biscom and the complainants moved for reconsideration: Biscom on August 17, 1963; complainants on September 24, 1963.

In the interim, Atty. Leonardo C. Fernandez (a respondent herein) filed on July 15, 1963 in the same case — CIR Case No. 70-ULP-Cebu — a "Notice of Attorney's Lien." He alleged therein that he had been the attorney of record for the laborers in CIR Case No. 70-ULP-Cebu "since the inception of the preliminary hearings of said case up to the Supreme Court on appeal, as chief counsel thereof"; that he "had actually rendered legal services to the laborers who are subject of this present litigation [CIR Case No. 70-ULP-Cases in Legal Ethics Bachelor of Laws 3A 67

Cebu] since the year 1956, more or less"; that the laborers "have voluntarily agreed to give [him], representing his attorney's fees on contingent basis such amounts equivalent to 25% thereof which agreement is evidenced by a Note"; and that the 25% attorney's fee so contracted is "reasonable and proper taking into consideration the length of services he rendered and the nature of the work actually performed by him."

On September 25, 1963, Atty. Fernandez filed an "Amended Notice of Attorney's Lien," which in part reads:

3. That the laborers, subject of this present litigation, sometime on February 3, 1956, had initially voluntarily agreed to give Undersigned Counsel herein, representing his Attorney's fees on contingent basis, such amounts as equivalent to Thirty Per Cent (30%) of whatever money claims that may be adjudicated by this Honorable Court, copy of said Agreement, in the local Visayan dialect and a translation of the same in the English language are hereto attached as annexes "A" "A-1" hereof;

4. That subsequently thereafter, when the above-entitled Case was already decided in their favor, Arsenio Reyes, in behalf of his co-laborers who are also Complainants in this Case begged from the Undersigned Counsel herein that he reduce his attorney's fees to Twenty-Five Per Cent (25%) only for the reason that they have to share and satisfy also Atty. Jose Ur. Carbonell in the equivalent amount of Five Per Cent (5%) although the latter's actual services rendered was so insignificant thereof;

5. That because of the pleadings of said Arsenio Reyes, who is the President of said Union, the Undersigned Counsel herein finally agreed and consented that his attorney's fees be reduced to only Twenty-Five Per Cent (25%) instead of Thirty Per Cent (30%) as originally agreed upon in 1956.

On October 7, 1963, Atty. Jose Ur. Carbonell (a petitioner herein) filed in court a document labelled "Discharge" informing CIR of the discharge, release and dismissal — thru a union board resolution (attached thereto as Annex A thereof) — of Atty. Leonardo C. Fernandez as one of the lawyers of the complainants in CIR Case No. 70-ULP-Cebu, effective February 28, 1963.

On October 14, 1963, Atty. Fernandez replied. He averred that the grounds for his discharge specified in the board resolution were "malicious and motivated by greed and ungratefulness" and that the unjustifiable discharge did not affect the already stipulated contract for attorneys' fees.

On March 19, 1964, CIR Judge Arsenio I. Martinez resolved Biscom's and complainants' motions for resonsideration objecting to the Chief Examiner's Report and also respondent Fernandez' Amended Notice of Attorney's Lien. Judge Martinez' order reads in part:

(b) Respondent company is further directed to deposit the amount representing 25% of P79,755.22 with the Cashier of this Court, as attorney's fees;

x x x x x x x x x

(d) The amount representing attorney's fees to be deposited by the respondent company is hereby awarded and granted to Atty. Leonardo C. Fernandez, and he may collect the same from the Cashier of the Court upon the finality of this order, subject to existing auditing procedures; ....

Biscom complied with the order of deposit. 4

On April 10, 1964, Atty. Carbonell moved to reconsider the March 19, 1964 order with respect to the award of attorneys' fees. Amongst his grounds are that CIR has no jurisdiction to determine the matter in question, and that the award of 25% as attorneys' fees to Atty. Fernandez is excessive, unfair and illegal. This motion was denied on April 28, 1964 by CIR en banc.

On June 9, 1964, a motion for reconsideration of the April 28, 1964 resolution was filed by Atty. Carbonell. This was amplified by a similar motion filed on June 11, 1964.

On June 25, 1964, two things happened: First. CIR en banc denied the motion of June 11, 1964. Second. On Atty. Fernandez' motion, Judge Martinez authorized the Cashier of the court to disburse to Fernandez the amount of P19,938.81 representing attorneys' fees and deducting therefrom all legal fees incident to such deposit.


Petitioners herein, Atty. Carbonell, Amalgamated Laborers' Association, and the ten employees, appealed from the June 25, 1964 resolution of CIR, direct to this Court.

1. Petitioners press upon this Court the view that CIR is bereft of authority to adjudicate contractual disputes over attorneys' fees. Their reasons: (1) a dispute arising from contracts for attorneys' fees is not a labor dispute and is not one among the cases ruled to be within CIR's authority; and (2) to consider such a dispute to be a mere incident to a case over which CIR may validly assume jurisdiction is to disregard the special and limited nature of said court's jurisdiction.

These arguments are devoid of merit.

The present controversy over attorneys' fees is but an epilogue or a tail-end feature of the main case, CIR No. 70-ULP-Cebu, which undoubtedly is within CIR's jurisdiction. And, it has been held that "once the Court of Industrial Relations has acquired jurisdiction over a case under the law of its creation, it retains that jurisdiction until the case is completely decided, including all the incidents related thereto." 5 Expressive of the rule on this point is this —

4. It is well settled that:

A grant of jurisdiction implies the necessary and usual incidental powers essential to effectuate it, and every regularly constituted court has power to do all things reasonably necessary for the administration of justice within the scope of its jurisdiction, and for the enforcement of its judgments and mandates, even though the court may thus be called upon to decide matters which would not be within its cognizance as original causes of action.

While a court may be expressly granted the incidental powers necessary to effectuate its jurisdiction, a grant of jurisdiction, in the absence of prohibitive legislation, implies the necessary and usual incidental powers essential to effectuate it (In re Stinger's Estate, 201 P. 693), and, subject to existing laws and constitutional provisions, every regularly constituted court has power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction, and for the enforcement of its judgments and mandates. So demands, matters, or questions ancillary or incidental to, or growing out of, the main action, and coming within the above principles, may be taken cognizance of by the court and determined, since such jurisdiction is in aid of its authority over the principal matter, even though the Court may thus be, called on to consider and decide matters, which as original causes of action, would not be within its cognizance (Bartholomew vs. Shipe, 251 S.W. 1031), (21 C.J.S. pp. 136-138.)

Thus, in Gomez vs. North Camarines Lumber Co., L-11945, August 18, 1958, and Serrano vs. Serrano, L-19562, May 23, 1964, we held that the court having jurisdiction over the main cause of action, may grant the relief incidental thereto, even if they would otherwise, be outside its competence. 6

To direct that the present dispute be lodged in another court as petitioners advocate would only result in multiplicity of suits, 7 a situation abhorred by the rules. Thus it is, that usually the application to fix the attorneys' fees is made before the court which renders the judgment. 8 And, it has been observed that "[a]n approved procedure, where a charging lien has attached to a judgment or where money has been paid into court, is for the attorney to file an intervening petition and have the amount and extent of his lien judicially determined." 9Appropriately to be recalled at this point, is the recent ruling in Martinez vs. Union de Maquinistas, 1967A Phild. 142, 144, January 30, 1967, where, speaking thru Mr. Justice Arsenio P. Dizon, explicit pronouncement was made by this Court that: "We are of the opinion that since the Court of Industrial Relations obviously had jurisdiction over the main cases, ... it likewise had full jurisdiction to consider and decide all matters collateral thereto, such as claims for attorney's fees made by the members of the bar who appeared therein." 10

2. The parties herein join hands in one point - the ten (10) successful complainants in C.I.R Case No. 70-ULP-Cebu should pay as attorneys' fees 30% of the amount adjudicated by the court in the latter's favor (P79,755.22).

They are at odds, however, on how to split the fees.

Respondent Atty. Fernandez claims twenty-five per cent (25%) of the 30% attorneys' fees. He explains that upon the plea of Arsenio Reyes, union president and one of the 10 successful complainants, he had to reduce his fees to 25% since "they have to share and satisfy also Atty. Jose Ur. Carbonell in the equivalent amount of Five Per Cent (5%)." Atty. Fernandez exhibited a contract purportedly dated February 3, 1956 — before the 48 employees have even filed their complaint in CIR. The stipulated fee is 30% of


whatever amount the ten might recover. Strange enough, this contract was signed only by 8 of the 10 winning claimants. What happened to the others? Why did not the union intervene in the signing of this contract? Petitioners dispute said contract. They say that Atty. Fernandez required the ten to sign the contract only after the receipt of the decision.

Petitioners, on the other hand, contend that the verbal agreement entered into by the union and its officers thru its President Javier and said two lawyers, Atty. Carbonell and Atty. Fernandez, is that the 30% attorneys' fees, shall be divided equally ("share and share alike") amongst Atty. Carbonell, Atty. Fernandez and Felisberto Javier, the union president.

After hearing, CIR Associate Judge Arsenio I. Martinez awarded 25% attorneys' fees to respondent Atty. Fernandez. CIR noted that "the active conduct and prosecution of the above-entitled case was done by Atty. Fernandez up to the appeal in the Supreme Court," and that petitioner Atty. Carbonell manifested that "Atty. Leonardo C. Fernandez was the counsel mainly responsible for the conduct of the case." It noted, too, that petitioner Atty. Carbonell did not file any notice of Attorney's Lien.

3. We strike down the alleged oral agreement that the union president should share in the attorneys' fees. Canon 34 of Legal Ethics condemns this arrangement in terms clear and explicit. It says: "No division of fees for legal services is proper, except with another lawyer, based upon a division of service or responsibility." The union president is not the attorney for the laborers. He may seek compensation only as such president. An agreement whereby a union president is allowed to share in attorneys' fees is immoral. Such a contract we emphatically reject. It cannot be justified.

4. A contingent fee contract specifying the percentage of recovery an attorney is to receive in a suit "should be reasonable under all the circumstances of the case, including the risk and uncertainty of the compensation, but should always be subject to the supervision of a court, as to its reasonableness." 11

Lately, we said: 12

The principle that courts should reduce stipulated attorney's fees whenever it is found under the circumstances of the case that the same is unreasonable, is now deeply rooted in this jurisdiction....

x x x x x x x x x

Since then this Court has invariably fixed counsel fees on a quantum meruit basis whenever the fees stipulated appear excessive, unconscionable, or unreasonable, because a lawyer is primarily a court officer charged with the duty of assisting the court in administering impartial justice between the parties, and hence, the fees should be subject to judicial control. Nor should it be ignored that sound public policy demands that courts disregard stipulations for counsel fees, whenever they appear to be a source of speculative profit at the expense of the debtor or mortgagor. See, Gorospe, et al. v. Gochangco, L-12735, October 30, 1959. And it is not material that the present action is between the debtor and the creditor, and not between attorney and client. As courts have power to fix the fee as between attorney and client, it must necessarily have the right to say whether a stipulation like this, inserted in a mortgage contract, is valid. Bachrach v. Golingco, 39 Phil. 138.

In the instant case, the stipulated 30% attorneys' fee is excessive and unconscionable. With the exception of Arsenio Reyes who receives a monthly salary of P175, the other successful complainants were mere wage earners paid a daily rate of P4.20 to P5.00. 13 Considering the long period of time that they were illegally and arbitrarily deprived of their just pay, these laborers looked up to the favorable money judgment as a serum to their pitiful economic malaise. A thirty per cent (30%) slice therefrom immensely dilutes the palliative ingredient of this judicial antidote.

The ten complainants involved herein are mere laborers. It is not far-fetched to assume that they have not reached an educational attainment comparable to that of petitioner Carbonell or respondent Fernandez who, on the other hand, are lawyers. Because of the inequality of the situation between laborers and lawyers, courts should go slow in awarding huge sums by way of attorneys' fees based solely on contracts. 14 For, as in the present case, the real objective of the CIR judgment in CIR Case No. 70-ULP-Cebu is to benefit the complaint laborers who were unjustifiedly dismissed from the service. While it is true that laborers should not be allowed to develop that atavistic proclivity to bite the hands that fed them, still lawyers should not be permitted to get a lion's share of the benefits due by reason of a worker's labor. What is to be paid to the laborers is not windfall but a product of the sweat of their brow. Contracts for legal services between laborer and attorney should then be zealously scrutinized to the end that a fair share of the benefits be not denied the former.


5. An examination of the record of the case will readily show that an award of twenty-five per cent (25%) attorneys' fees reasonably compensates the whole of the legal services rendered in CIR Case No. 70-ULP-Cebu. This fee must be shared by petitioner Atty. Carbonell and respondent Atty. Fernandez. For, after all, they are the counsel of record of the complainants. Respondent Atty. Fernandez cannot deny this fact. The pleadings filed even at the early stages of the proceedings reveal the existence of an association between said attorneys. The pleadings were filed under the name of "Fernandez & Carbonell." This imports a common effort of the two. It cannot be denied though that most of those pleadings up to judgment were signed for Fernandez & Carbonell by respondent Fernandez.

We note that a break-up in the professional tie-up between Attorneys Fernandez and Carbonell began when petitioner Atty. Carbonell, on November 26, 1962, complained to CIR that respondent Atty. Fernandez "failed to communicate with him nor to inform him about the incidents of this case." He there requested that he be furnished "separately copies of the decision of the court and other pleadings and subsequent orders as well as motions in connection with the case."

Subsequent pleadings filed in the case unmistakably show the widening rift in their professional relationship. Thus, on May 23, 1963, a "Motion to Name and Authorize Official Computer" was filed with CIR. On the same day, a "Motion to Issue Writ of Execution" was also registered in the same court. Although filed under the name of "Carbonell & Fernandez," these pleadings were signed solely by petitioner Atty. Carbonell.

On September 16, 1963, an "Opposition to respondent Biscom's Motion for Reconsideration" was filed by petitioner Atty. Carbonell. On September 24, 1963, he filed a "Motion for Clarification" of the November 13, 1962 judgment of CIR regarding the basic pay of Arsenio Reyes and Fidel Magtubo. On September 24, 1963, he also filed a "Motion to Reconsider Report of Chief Examiner." These, and other pleadings that were filed later were signed solely by petitioner Atty. Carbonell, not in the name of "Carbonell & Fernandez." While it was correctly observed by CIR that a good portion of the court battle was fought by respondent Atty. Fernandez, yet CIR cannot close its eyes to the legal services also rendered by Atty. Carbonell. For, important and numerous, too, were his services. And, they are not negligible. The conclusion is inevitable that petitioner Atty. Carbonell must have a share in the twenty-five per cent (25%) attorneys' fees awarded herein. As to how much, this is a function pertaining to CIR.

6. We note that CIR's cashier was authorized on June 25, 1964 to disburse to Atty. Leonardo C. Fernandez the sum of P19,938.81 which is 25% of the amount recovered. In the event payment actually was made, he should be required to return whatever is in excess of the amount to which he is entitled in line with the opinion expressed herein. 15

IN VIEW OF THE FOREGOING, the award of twenty five per cent (25%) attorneys' fees solely to respondent Atty. Fernandez contained in CIR's order of March 19, 1964 and affirmed by said court's en banc resolutions of April 28, 1964 and June 25, 1964, is hereby set aside; and the case is hereby remanded to the Court of Industrial Relations with instructions to conduct a hearing on, and determine, the respective shares of Attorney Leonardo C. Fernandez and Attorney Jose Ur. Carbonell in the amount of P19,938.81 herein awarded as attorneys' fees or both. No costs. So ordered.


SECOND DIVISION

EPIFANIA Q. BANTOLO, Adm. Case No. 6589 Complainant, Present: PUNO, J.,

Chairman, - versus - AUSTRIA-MARTINEZ,Cases in Legal Ethics Bachelor of Laws 3A 71

CALLEJO, SR., TINGA, and

CHICO-NAZARIO, JJ.ATTY. EGMEDIO B. CASTILLON, JR., Respondent.

Promulgated: December 19, 2005

D E C I S I O N

TINGA, J.: In a letter-complaint to the Integrated Bar of the Philippines (IBP) dated 02 October 1997, [1] Epifania Q. Bantolo charged Atty. Egmedio B. Castillon, Sr. of violating the lawyer’s oath and Section 20 of Rule 138 of the Rules of Court for having (i) wittingly or willingly performed, promoted, or sued any groundless, false or unlawful suit, and or giving aid or consent to the same; (ii) delayed the just execution of the suit without legal or justifiable cause and employing illegal means and unlawful force to do so; (iii) blatantly showed disrespect to the Regional Trial Court by disobeying its lawful orders; and (iv) for employing unlawful and illegal means to attain his ends. According to complainant, respondent is the lawyer and one of the defendants in a case involving a parcel of land in Valderrama, Antique.[2] The case was decided in favor of the complainant and her co-plaintiffs, and thereafter, a writ of execution was issued, by virtue of which, defendants were ejected from the property. However, respondents, with his co-defendants subsequently entered the disputed property and harvested the palay planted therein. [3] Plaintiffs were prompted to move for defendants to be declared in contempt of court because of their “open defiance and willful disobedience to the lawful orders of the court, which were abetted by the acts of Atty. Egmedio Castillon who is an officer of the court”. [4] On 25 January 1991, the trial court declared Atty. Castillon and his co-defendants guilty of indirect contempt of court, with the penalty of one month imprisonment and fine.[5] Subsequently, on 26 July 1994, the Court of Appeals affirmed the decision of the trial court, with the modification that instead of imprisonment, defendants were ordered to pay a fine of P1,000.00 each.[6]

In his Answer to Complaint dated 02 March 1998, respondent denied complainant’s allegations and claimed that said complaint was a form of harassment.[7] Hearings were thereafter scheduled but were cancelled and reset due to the unavailability of the complainant. Finally, on 09 December 1998, a hearing for the reception of complainant’s evidence was conducted. [8] While notices were subsequently sent to respondent setting the case for reception of his evidence, no such hearing pushed through due to respondent’s failure to inform the IBP of his new office address. Thus, respondent was deemed to have waived his right to present evidence.[9]

In the Report and Recommendation (“Report”) dated 17 March 2004, the investigating commissioner, Atty. Rafael Antonio M. Santos, found that complainant failed to prove that respondent’s actions, with respect to his unsuccessful defense of the case were not within the bounds of the law. Moreover, that respondent lost his case in the trial court does not necessarily support the charge of “willingly promoting or ruing any groundless, false or unlawful suit or giving aid, or consenting to the same,” [10] he added. Thus, according to the IBP, the only remaining issue to be resolved is respondent’s liability, if any, for his contumacious acts, as found by the trial court and the Court of Appeals.[11]

Recognizing that the findings of the trial court and the appellate court with respect to respondent’s contumacious acts as final and conclusive, it was found that respondent committed an act which constitutes a breach of his sworn promise to “obey the laws as well as the legal orders of the duly constituted authorities.” Furthermore, the Report noted respondent’s attempts to thwart the instant disbarment proceedings, to wit: i) attempt to mislead the Commission on Bar Discipline by representing that the proceedings relative to the contempt charges against him are still pending when in fact they had already been terminated; ii) placing too much emphasis on the alleged lack of personality of the complainant to file the disbarment complaint; and iii) failure to notify the Commission of his change of address.[12]

Finding however, that the penalty of disbarment would be reasonable under the circumstances, the Commission recommended instead the penalty of suspension for one month.[13] As explained in the Report:

A close examination of the facts of this case reveals that the basis of the act for which the court found to be contumacious is a claim of ownership over the subject property, and thus arose from an emotional attachment to


the property which they had possessed prior to their dispossession as a consequence of the decision in Civil Case No. 1345. Respondent’s subsequent acts, however, including those which were found to be contumacious, as well as his actuations in the instant case, merit disciplinary sanctions, for which is recommended that respondent be suspended for one (1) month.[14]

On 30 July 2004, the IBP passed a resolution adopting the Report and Recommendation, to wit:

RESOLUTION NO, XVI-2004-376 CBD Case No. 510 Epifania Q. Bantolo vs. Atty. Egmedio B. Castillon

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 has been found by both the Trial Court and the Court of Appeals guilty of indirect contempt for disobeying the writ of execution and for attempting to mislead the Commission into believing that the contempt charge is still pending by submitting an Order of the trial court which pertains to a second contempt charge, Atty. Egmedio B. Castillon, Sr. is hereby SUSPENDED from the practice of law for one (1) month.

The findings and recommendation of the IBP are well-taken. Lawyers are particularly called upon to obey court orders and processes, and this deference is underscored by the fact that willful disregard thereof may subject the lawyer not only to punishment for contempt but to disciplinary sanctions as well. [15] Such is the situation in the instant case. We need not delve into the factual findings of the trial court and the Court of Appeals on the contempt case against respondents. Suffice it to say that respondent lawyer’s commission of the contumacious acts have been shown and proven, and eventually punished by the lower courts.

A lawyer is first and foremost an officer of the court. Thus, while he owes his entire devotion to the interest and causes of his client he must ensure that he acts within the bounds of reason and common sense, always aware that he is an instrument of truth and justice. More importantly, as an officer of the court and its indispensable partner in the sacred task of administering justice, graver responsibility is imposed upon a lawyer than any other to uphold the integrity of the courts [16] and to show respect to its processes. Thus, any act on his part which tends visibly to obstruct, pervert or impede and degrade the administration of justice constitutes professional misconduct calling for the exercise of disciplinary action against him.[17]

Respondent’s defiance of the writ of execution is a brazen display of disrespect of the very system which he has sworn to

support. Likewise, his various attempts to delay and address issues inconsequential to the disbarment proceedings had necessarily caused delay, and even threatened to obstruct the investigation being conducted by the IBP.

Nevertheless, the supreme penalty of disbarment is not proper in the instant case. The rule is that disbarment is meted out

only in clear cases of misconduct that seriously affect the standing and character of the lawyer as an officer of the court. While the Court will not hesitate to remove an erring lawyer from the esteemed brotherhood of lawyers when the evidence calls for it, it will also not disbar him where a lesser penalty will suffice to accomplish the desired end. [18] In the case of respondent, the Court finds that a month’s suspension from the practice of law will provide him with enough time to purge himself of his misconduct and will give him the opportunity to retrace his steps back to the virtuous path of the legal profession. WHEREFORE, respondent Atty. Egmedio B. Castillon is found GUILTY of gross misconduct and is SUSPENDED from the practice of law for a period of one (1) month with a warning that a repetition of the same or similar act will be dealt with more severely. Respondent’s suspension is effective upon notice of this decision. Let notice of this decision be spread in respondent’s record as an attorney in this Court, and notice of the same served on the Integrated Bar of the Philippines and on the Office of the Court Administrator for circulation to all the courts concerned. SO ORDERED.



EN BANC

[A.C. No. 5624. January 20, 2004]

NATASHA HUEYSUWAN-FLORIDO, complainant, vs. ATTY. JAMES BENEDICT C. FLORIDO, respondent.

D E C I S I O N

YNARES-SANTIAGO, J.:


This is an administrative complaint for the disbarment of respondent Atty. James Benedict C. Florido and his eventual removal from the Roll of Attorneys for allegedly violating his oath as a lawyer “by manufacturing, flaunting and using a spurious and bogus Court of Appeals Resolution/Order.”[1]

In her Complaint-Affidavit, Natasha V. Heysuwan-Florido averred that she is the legitimate spouse of respondent Atty. James Benedict C. Florido, but that they are estranged and living separately from each other. They have two children – namely, Kamille Nicole H. Florido, five years old, and James Benedict H. Florido, Jr., three years old – both of whom are in complainant’s custody. Complainant filed a case for the annulment of her marriage with respondent, docketed as Civil Case No. 23122, before the Regional Trial Court of Cebu City, Branch 24. Meanwhile, there is another case related to the complaint for annulment of marriage which is pending before the Court of Appeals and docketed as CA-G.R. SP No. 54235 entitled, “James Benedict C. Florido v. Hon. Pampio Abarientos, et al.”

Sometime in the middle of December 2001, respondent went to complainant’s residence in Tanjay City, Negros Oriental and demanded that the custody of their two minor children be surrendered to him. He showed complainant a photocopy of an alleged Resolution issued by the Court of Appeals which supposedly granted his motion for temporary child custody. [2]Complainant called up her lawyer but the latter informed her that he had not received any motion for temporary child custody filed by respondent.

Complainant asked respondent for the original copy of the alleged resolution of the Court of Appeals, but respondent failed to give it to her. Complainant then examined the resolution closely and noted that it bore two dates: November 12, 2001 and November 29, 2001. Sensing something amiss, she refused to give custody of their children to respondent.

In the mid-morning of January 15, 2002, while complainant was with her children in the ABC Learning Center in Tanjay City, respondent, accompanied by armed men, suddenly arrived and demanded that she surrender to him the custody of their children. He threatened to forcefully take them away with the help of his companions, whom he claimed to be agents of the National Bureau of Investigation.

Alarmed, complainant immediately sought the assistance of the Tanjay City Police. The responding policemen subsequently escorted her to the police station where the matter could be clarified and settled peacefully. At the police station, respondent caused to be entered in the Police Blotter a statement that he, assisted by agents of the NBI, formally served on complainant the appellate court’s resolution/order.[3] In order to diffuse the tension, complainant agreed to allow the children to sleep with respondent for one night on condition that he would not take them away from Tanjay City. This agreement was entered into in the presence of Tanjay City Chief of Police Juanito Condes and NBI Investigator Roger Sususco, among others.

In the early morning of January 16, 2002, complainant received information that a van arrived at the hotel where respondent and the children were staying to take them to Bacolod City. Complainant rushed to the hotel and took the children to another room, where they stayed until later in the morning.

On the same day, respondent filed with the Regional Trial Court of Dumaguete City, Branch 31, a verified petition [4] for the issuance of a writ of habeas corpus asserting his right to custody of the children on the basis of the alleged Court of Appeals’ resolution. In the meantime, complainant verified the authenticity of the Resolution and obtained a certification dated January 18, 2002[5]from the Court of Appeals stating that no such resolution ordering complainant to surrender custody of their children to respondent had been issued.

At the hearing of the petition for habeas corpus on January 23, 2002, respondent did not appear. Consequently, the petition was dismissed.

Hence, complainant filed the instant complaint alleging that respondent violated his attorney’s oath by manufacturing, flaunting and using a spurious Court of Appeals’ Resolution in and outside a court of law. Furthermore, respondent abused and misused the privileged granted to him by the Supreme Court to practice law in the country.

After respondent answered the complaint, the matter was referred to the IBP-Commission on Bar Discipline for investigation, report and recommendation. The IBP-CBD recommended that respondent be suspended from the practice of law for a period of three years with a warning that another offense of this nature will result in his disbarment.[6] On June 23, 2003, the IBP Board of Governors adopted and approved the Report and recommendation of the Commission with the modification that the penalty of suspension be increased to six years.

The issue to be resolved is whether or not the respondent can be held administratively liable for his reliance on and attempt to enforce a spurious Resolution of the Court of Appeals.

In his answer to the complaint, respondent claims that he acted in good faith in invoking the Court of Appeals Resolution which he honestly believed to be authentic. This, however, is belied by the fact that he used and presented the spurious resolution several times. As pointed out by the Investigating Commissioner, the assailed Resolution was presented by respondent on at least two occasions: first, in his Petition for Issuance of Writ of Habeas Corpus docketed as Special Proc. Case No. 3898,[7] which he filed with Cases in Legal Ethics Bachelor of Laws 3A 75

http://sc.judiciary.gov.ph/jurisprudence/2004/jan2004/ac_5624.htm#_ftn7







the Regional Trial Court of Dumaguete City; and second, when he sought the assistance of the Philippine National Police (PNP) of Tanjay City to recover custody of his minor children from complainant. Since it was respondent who used the spurious Resolution, he is presumed to have participated in its fabrication.

Candor and fairness are demanded of every lawyer. The burden cast on the judiciary would be intolerable if it could not take at face value what is asserted by counsel. The time that will have to be devoted just to the task of verification of allegations submitted could easily be imagined. Even with due recognition then that counsel is expected to display the utmost zeal in the defense of a client’s cause, it must never be at the expense of the truth.[8] Thus, the Code of professional Responsibility states:

CANON 10. A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE COURT.

Rule 10.01 - A lawyer shall not do any falsehood; nor consent to the doing of any in court; nor shall he mislead, or allow the Court to be misled by any artifice.

Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of an opposing counsel, or the text of a decision or authority, or knowingly cite as a law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved.

Moreover, the records show that respondent used offensive language in his pleadings in describing complainant and her relatives. A lawyer’s language should be forceful but dignified, emphatic but respectful as befitting an advocate and in keeping with the dignity of the legal profession.[9] The lawyer’s arguments whether written or oral should be gracious to both court and opposing counsel and should be of such words as may be properly addressed by one gentlemen to another. [10] By calling complainant, a “sly manipulator of truth” as well as a “vindictive congenital prevaricator”, hardly measures to the sobriety of speech demanded of a lawyer.

Respondent’s actions erode the public perception of the legal profession. They constitute gross misconduct and the sanctions for such malfeasance is prescribed by Section 27, Rule 138 of the Rules of Court which states:

SEC. 27. Disbarment and suspension of attorneys by Supreme Court, grounds therefore.- 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.

Considering the attendant circumstances, we agree with the recommendation of the IBP Board of Governors that respondent should be suspended from the practice of law. However, we find that the period of six years is too harsh a penalty. Instead, suspension for the lesser period of two years, which we deem commensurate to the offense committed, is hereby imposed on respondent.

WHEREFORE, in view of all the foregoing, Atty. James Benedict C. Florido is SUSPENDED from the practice of law for a period of two (2) years.

Let copies of this resolution be entered in the personal record of respondent as a member of the Bar and furnished the Bar Confidant, the Integrated Bar of the Philippines (IBP) and the Court Administrator for circulation to all courts of the country.

SO ORDERED.


Manila

FIRST DIVISION

G.R. No. 120074 June 10, 1997





LEAH P. ADORIO, petitioner, vs.HON. LUCAS P. BERSAMIN, Presiding Judge, Regional Trial Court, Branch 96, Quezon City, respondent.

PHILIP SEE, intervenor.

KAPUNAN, J.:

This is a special civil action for certiorari which seeks to set aside the Order of Judge Lucas P. Bersamin 1 dated May 5, 1995 insofar as it holds petitioner in direct contempt and sentences her therefor. The dispositive portion of said order reads:

WHEREFORE, the Motion For Inhibition And For Re-raffle Of Cases is hereby granted.

The complainant Philip See y Go and his former private prosecutor, Atty. Leah P. Adorio, of the King & Adorio Law Offices, with address at No. 40 Landargun Street, Quezon City, are hereby found guilty of direct contempt of this Court for disrespect to the Court and its Presiding Judge and are accordingly sentenced to suffer imprisonment of two (2) days in the City Jail of Quezon City and to pay a fine of P200.00 each.

For the purpose of the execution of their sentence, complainant Philip See y Go and Atty. Leah P. Adorio are hereby directed to appear in person before the Court on May 23, 1995 at 10:00 o'clock in the morning.

Pending execution of the sentence, the transmittal of the records to the Honorable Executive Judge, through the Office of the Clerk of Court, for purposes of re-raffle shall be held in abeyance.

SO ORDERED. 2

Petitioner was counsel for Philip G. See, the private complainant in Criminal Case Nos. Q-94-55933 to Q-94-55957 involving violations of B.P. Blg. 22 pending before the sala of respondent Judge. 3

Pre-trial in these cases was concluded on January 16, 1995. Upon agreement of the parties, trial on the merits was set on March 8, 15 and 22, all at 8:30 a.m. 4

Unknown to petitioner, counsel for the accused filed several requests addressed to the Branch Clerk of Court for the issuance of subpoenas duces tecum requiring officials of several banks to bring before the court on March 8, 1995 at 8:30 a.m., microfilm copies of various checks. The subpoenas duces tecum were issued on February 6, 7 and 14, 1995. 5

On March 8, 1995, which petitioner supposed to be the date of the presentation of the prosecution's evidence, petitioner came to court and was surprised by the presence of the bank officials therein. 6 During tile hearing, respondent Judge called for a recess to enable counsel for the accused to confer with the bank officers. 7 When the case was again called, the following arguments took place:

Atty. Adorio:

Before we call our witness, your honor, may I now make of record that I was surprised with the move this morning of all the bank officers, I was not informed about any request for subpoena to the bank officers today. No copy of such request was given to the Private Prosecutor. And I also notice, your honor, that the subpoena or rather no copy issued by this court was ever given to the private prosecutor. Atty. Rivera knows, he had already entered his appearance and he knows my address, why did he not furnish me a copy of his request for subpoena, your honor, considering that I have the right to examine his request, the materiality of his request. I would like also to make of record, your honor, why they keep it as a secret, as a rule, the opposing party must be a party to whatever paper the other party may file, it seems that Atty. Rivera is hiding something from us. Whatever he wants to ask the Court, I am entitled to know.


Atty. Rivera:

I don't think there is a reason or there is a need to be furnished with my request for subpoena, that is the reason why she was not furnished, your honor. Besides, my request for subpoena this morning is not a litigated motion. I made this request for advance in order that, when the defense turn to present evidence, it won't be delayed because of non-availability of these exhibits.

Atty. Adorio:

This is our day of presenting evidence, your honor. This is only my observation, your honor and may I request Atty. Rivera to give us all copies he submits to the Court.

Atty. Rivera:

May I request for particular rule for that. . . .

Atty. Adorio:

Your honor, copies must be given to the opposing counsel, there is a ruling on that your honor. . . . .

Atty. Rivera:

This is not a litigated motion your honor

Court:

What is the problem of Atty. Adorio?

Atty. Adorio:

My only observation, your honor. And may I request Atty. Rivera to give us all copies he submits to the Court.

Atty. Rivera:

May I request for that particular rule for furnishing request for subpoena to the other counsel, your honor. . . .

Court:

What is this rule, will you cite the rule so that we can examine your protest you are insinuating to the Court that there was something here, we don't even know the request for subpoena. If anyone of my staff is. . . . towards the other side, you call me I can discipline them. . . .

Atty. Adorio:

There was an instance, your honor, when this case was called by the Clerk for arraignment, the Clerk would say that the accused would be coming. And one time, your honor, the Court already issued an Order of arrest, and it was already past 10:00 o'clock in the morning when the accused arrived. . . . 8

Petitioner was apparently referring to an incident that allegedly occurred on July 13, 1994, the date set for the accused's arraignment. According to petitioner, the accused failed to appear in court on said date even after the third call at around 11:00 a.m. Cases in Legal Ethics Bachelor of Laws 3A 78

Consequently, the Court ordered the issuance of a warrant of arrest and the confiscation/cancellation of the accused's bail bond. The clerk in charge of the record then went to the door separating the courtroom and the staff's office and whispered to someone in the office. After two minutes, the same clerk again rose from her seat, went back to the door, and announced to the Court that the accused would be late. Respondent Judge replied that the Court will wait for the accused.9

However, on March 8, 1995, Philip See allegedly examined the record but found that the incidents which purportedly transpired during the arraignment were not reflected therein. 10

The above revelations by Atty. Adorio prompted the following response from respondent Judge:

Court:

Will you call everybody, all the staff inside . . . and you point to me who is that . . . ? If you want me to be disqualified in these cases, you make it in writing. You file your motion to inhibit, I will disqualify myself because I don't want to hear such accusations. Any participation of my staff which I am now parading before you. . . I don't like that kind of accusation.

Atty. Rivera:

I will join the court.

Court:

Order

As prayed for, the private prosecutor is hereby directed to file a Request for inhibition in writing stating the grounds.

Pending consideration of the Request for Inhibition, hearing is hereby suspended.

So ordered. 11

Pursuant to said order, petitioner filed a "Motion for Inhibition and for Re-Raffle of Case" in behalf of her client, alleging that:

The filing of the request for issuance of subpoena duces tecum and the issuance of the subpoena without notice on the private prosecutor were irregular for the following reasons:

[a] The pre-trial of the case had been terminated and the evidence for the prosecution was scheduled to be heard on March 8, 1995. Thus, it was plaintiff's turn to present evidence. Whatever request defendant wanted to make with the court which would affect the right of the plaintiff to present evidence on the date scheduled would therefore be of notice to private prosecutor so that no surprises would result and so that plaintiff could also prepare questions for these bank officers involved and make use of their presence.

[b] The act of the Court in issuing the subpoena for the bank officers to testify on March 8, 1995 upon request of the defendant when it was not yet his turn to present evidence is disruptive of orderly court procedure and shows bias on the part of the court. It shows the control of the accused over the court and court procedure.

[c] This control was also manifest on July 13, 199[4], when accused was scheduled for arraignment, when the latter failed to appear before the court despite the third call at about 11:00 a.m. The Court then issued an Order for the issuance of a warrant of arrest and the confiscation/cancellation of the bail bond. After this Order was given orally in open court, the clerk who took charge of the records went to the door between the sala and the office and whispered something to someone in the office. After about two minutes, the same clerk again rose from her seat and went back to the door and thereafter, she announced to the Court that the accused would be late and the accused would be arriving. The Court then said that it will wait, if Alvin Tan is coming. It is puzzling how the clerk


knew that Alvin Tan would be coming when he was not even present in court. However, none of these facts appeared in the Order or in the Constancia. 12

Petitioner prayed that (1) the judge inhibit himself from hearing the criminal cases; (2) said cases be re-raffled to another court; and (3) the hearing of said cases be suspended pending the resolution of the Motion for Inhibition. 13

The trial court granted said motion in an Order dated May 5, 1995. In the same order, declared petitioner and her client, in direct contempt. He explained thus:

The imputation that the Court has come under the control of the accused on account of the issuance of the subpoena duces tecum upon his request but without notice to the complainant or the public prosecutor is most unfair and disrespectful to the Court and is a highly irresponsible accusation on the part of the private complainant and the private prosecutor (who had meanwhile withdrawn from the case). The issuance of a subpoena at a party's instance is not subject to prior or simultaneous notice to the adverse party of the request therefor, for, such notice is not required by the Rules of Court. The grounds for disqualification are unworthy of any consideration. The questioning by the private prosecutor of the issuance of the subpoena is unfounded and due to a misplaced sense of procedural requirements.

xxx xxx xxx

As far as the text and language of the motion are concerned, the Court considers them to be irresponsible and disrespectful, especially the accusation that the Court had come under the control of the accused and had committed an irregularity of procedure. These statements amount to an unmitigatedly disrespectful attitude towards the Court and its Presiding Judge. They also display the dangerous tendencies of a party and counsel who probably think of themselves as beyond reproach. There is therefore no recourse but to find both the complainant and his former private prosecutor guilty of direct contempt. 14

On May 22, 1995, petitioner filed this special civil action for certiorari with a prayer for a temporary restraining order. This Court, in a Resolution dated June 5, 1995, issued a temporary restraining order enjoining respondent Judge from enforcing the impugned order.

A perusal of the trial court's order reveals that what respondent judge found particularly contemptuous were petitioner's statements in her motion alleging that (1) the issuance of the subpoenas duces tecum was irregular; and (2) the court and court procedure were subject to the "control" of the accused.

Whether or not these statements constitute direct contempt is the issue which confronts this Court.

We rule in the affirmative.

Contrary to petitioner's allegations, there was nothing "irregular" in the issuance of the subpoenas duces tecum. Requests by a party for the issuance of subpoenas do not require notice to other parties to the action. No violation of due process results by such lack of notice since the other parties would have ample opportunity to examine the witnesses and documents subpoenaed once they are presented in court. 15

Petitioner however argues that:

On March 8, 1995, the prosecution was scheduled to present its first witness, the private complainant, Philip See, after a very long pre-trial period which started sometime in September 1994. The regular [as against the "irregular"] procedure would have been for the prosecution to proceed with the presentation of evidence pursuant to Rule 119, Section 3 of the Rules of Court. The prosecution was not, however, able to move along, due to the presence of numerous bank officials from various banks who appeared pursuant to the subpoenas issued to them by the court.

Moreover, the person who requested for the subpoena was the counsel for the accused. The regular or usual procedure would have been for the subpoena to be issued during the pre-trial stage or during the time that the


defense is presenting its evidence and not during the time of presentation of evidence by the prosecution as what happened in this case.

We do not find any merit in petitioner's contentions. Rule 119, Section 3 of the Rules of Court which prescribes the order of trial in criminal cases does not preclude the defense from procuring subpoenas duces tecum during the time of the prosecution's presentation of evidence. In this case, counsel for the accused felt that he needed the documents subject of the subpoenas for his cross-examination of the prosecution witnesses. Accordingly, respondent judge called a recess to enable said counsel to secure said documents from the bank officials. The order of trial was not in any way altered; counsel for the accused did not even attempt to call any of the bank officials to the stand. Under these circumstances, the resulting delay cannot be considered unreasonable nor "irregular."

Nor do we find anything "irregular" in the accused's arraignment. As counsel for the accused points out:

. . . the fact that the Presiding Judge issued a warrant of arrest and ordered the cancellation of the accused's bond shows that he gives no special favor to the accused. And it is of common knowledge that orders like that are easily reconsidered/lifted even for excuses like traffic, ill health or failure to remember the hearing. The fact that the Presiding Judge opted to wait for the accused upon information that the latter is coming only shows that he was very aware of the common practice. Waiting saved so much of the court's and parties' time as it did away with the usual motion for reconsideration and the necessity for a resetting.

. . . Court personnels [sic], practitioners and even judges know, of course that it is not uncommon for litigants, especially those coming for trial late, to call the court's office by phone. It is likewise not uncommon for litigants who follows-up [sic] matters in the office (like bailbonds, [sic] release of rulings, etc.) to get acquainted with — or even become friends of — court clerks, secretaries, typists, stenographers or sheriffs, in the office.

. . . Besides, if the plaintiff found it necessary to have those matters stated in the Order or placed on record, there were two (2) lawyers (the private and the public prosecutors) who could have stood up and made the proper manifestations or requests. But that incident happened way back 13 July 1994 and it is only now, in their motion of 15 March 1995, that they mention the same in their vain attempt to create an issue on the impartiality and fairness of the Presiding Judge. . . . 16

Petitioner's allegation that the proceedings before the trial court were "irregular" therefore lacks basis. Such statement, when read with petitioner's remark that the so-called irregularities "show the accused's control over the court and court procedure," is nothing short of contemptuous.

The latter statement is particularly alarming for it implies that court proceedings are a mere farce, and the court a mere stooge, a marionette subject to the manipulation of the opposing party. It suggests that the judge was moved by considerations other than his sense of justice and fair play thereby calling into question the integrity and independence of the court. Such statement tends to bring the authority and administration of law into disrespect and constitutes a violation of the Code of Professional Responsibility, specifically:

CANON 11 — A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others.

xxx xxx xxx

Rule 11.03 — A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the courts.

Rule 11.04 — A lawyer shall not attribute to a judge motives not supported by the record or having no materiality to the case.

Consequently, we rule that respondent Judge did not commit grave abuse of discretion in declaring petitioner guilty of direct contempt.


However, we find the penalty imposed by respondent Judge upon petitioner too severe. Punishment in contempt cases are meted on a corrective principle to vindicate the authority and dignity of the courts and the administration of justice. 17Accordingly, we reduce the same to a fine of P200.00.

While petitioner's client, Philip G. See, did not question the contempt order against him — his motion for intervention and the accompanying motion for issuance of clarificatory order merely questioned the scope of the temporary restraining order issued by this Court — the reduction of the penalty in favor of his former counsel should likewise benefit him. Under the rules of criminal procedure, the judgment of the appellate court shall affect even those accused who did not appeal insofar as said judgment is favorable and applicable to them. 18 By analogy, this rule should apply in contempt cases. Contempt partakes of the nature of a criminal offense, 19 and the mode of procedure in contempt proceedings is assimilated as far as practicable to those adapted to criminal prosecutions. 20

WHEREFORE, the Order dated May 5, 1995 issued by respondent Judge is MODIFIED in that the penalty of imprisonment for Two (2) Days and a fine of Two Hundred Pesos (P200.00) imposed on petitioner Leah Adorio and intervenor Philip See is REDUCED to a fine of Two Hundred Pesos (P200.00) only. The Temporary Restraining Order is LIFTED and Criminal Case Nos. Q-94-55933 to Q-94-55957 is ordered re-raffled to another branch of the Regional Trial Court of Quezon City.

SO ORDERED.




Manila

EN BANC

G.R. No. L-36800 October 21, 1974

JORGE MONTECILLO and QUIRICO DEL MAR, petitioners, vs.FRANCISCO M. GICA, MAGNO S. GATMAITAN, JOSE N. LEUTERIO, and RAMON G. GAVIOLA, Justices of the Court of Appeals, respondents. In Re Quirico del Mar, For Disciplinary action as member of the Philippine Bar, respondent.

ESGUERRA, J.:p

Petitioner Atty. Quirico del Mar of Cebu City in G. R. No. L-36800, and as respondent in contempt proceedings both in the Court of Appeals and in this Court, virtually focused the limelight on himself and relegated to insignificance the limelight on himself and relegated to insignificance the principal issue raised in the petition forcertiorari to review the entitled "Francisco M. Gica vs. Hon. Santiago O. Tañada, et al" which was denied due course by this Court's resolution dated May 14, 1973, for lack of merit.

Although the petition for certiorari has been denied, it becomes imperatively necessary to elucidate upon the antecedents of this case even if Our only justification in so doing is to seek a reason or motive for the acts of contempt perpetrated by respondent Quirico del Mar that might serve to lighten the enormity of his wrongdoing as a member of the Bar.

As a result of an alleged slander committed by Jorge Montecillo on Francisco M. Gica (the former allegedly calling the latter "stupid" or a "fool'), Mr. Gica filed a criminal complaint for oral defamation against Montecillo (Criminal Case No. R-28782 in Branch VII of the Cebu City Court) and a case for damages arising from the same incident (Civil Case No. R-13075 in Branch VI of the Cebu City Court). Montecillo was acquitted in Criminal Case No. R-28782, and in Civil Case No. R-13075, the Cebu City Court found that Montecillo did not call Gica "stupid". Finding the counter-claim of Montecillo meritorious, the City Court rendered judgment against Gica for him to pay Montecillo five hundred pesos as moral damages, two hundred pesos as compensatory damages and three hundred pesos as attorney's fees, plus costs.

Francisco Gica appealed from the decision of the City Court of Cebu in Civil Case No. R-13075 to the Court of First Instance of Cebu presided by Hon. Santiago O. Tañada but the Court of First Instance upheld the decision of the City Court. The case was then elevated to the Court of Appeals by petition for review by petitioner Francisco M. Gica and it was docketed therein as CA-G.R. No. 46504-R.

The Fourth Division of the Court of Appeals in a decision penned by the Hon. Magno S. Gatmaitan and concurred in by Associate Justices Jose N. Leuterio and Ramon G. Gaviola, Jr. (promulgated on Sept. 27, 1972), reversed the decision of the Court of First Instance of Cebu; ruled in favor of petitioner Gica on the ground that the preponderance of evidence favored petitioner Francisco M. Gica on the principle that positive must prevail over the negative evidence, and that "some words must have come from Montecillo's lips that were insulting to Gica". The appellate court concluded that its decision is a vindication of Gica and instead, awarded him five hundred pesos as damages.

It is from this point that trouble began for respondent Atty. Quirico del Mar when, as counsel for Montecillo, he moved for a reconsideration of the Appellate Court's decision with a veiled threat by mentioning the provisions of the Revised Penal Code on "Knowingly rendering unjust judgment" and "judgment rendered through negligence", and the innuendo that the Court of Appeals allowed itself to be deceived. When the Appellate Court denied the motion for reconsideration in its Resolution of October 24, 1972, it observed that the terminology of the motion insinuated that the Appellate Court rendered an unjust judgment, that it abetted a falsification and it permitted itself to be deceived. It admonished Atty. del Mar to remember that threats and abusive language cannot compel any court of justice to grant reconsideration. Respondent del Mar persisted and in his second motion for reconsideration, filed without leave of court, made another threat by stating that "with almost all penal violations placed under the


jurisdiction of the President of the Philippines, particularly Articles 171, 204 and 205 of the Revised Penal Code, as Commander in Chief of the AFP, by virtue of the proclamation of martial law, the next appeal that will he interposed, will be to His Excellency, the President of the Philippines."

The Appellate Court in its resolution of Nov. 27, 1972, noticed that notwithstanding its admonition in its resolution of Oct. 24, 1972, for Atty. del Mar to refrain from abusive language and threats, he reiterated his threats, and that the Appellate Court, impelled to assert its authority, ordered respondent del Mar to explain within 10 days (and to appear on January 10, 1973) why he should not be punished for contempt of court.

On December 5, 1972, respondent del Mar made a written explanation wherein he said that the Appellate Court could not be threatened and he was not making any threat but only informing the Appellate Court of the course of action he would follow. On the same date, respondent sent a letter to the Justices of the 4th Division of the Court of Appeals informing them that he sent a letter to the President of the Philippines, furnishing them a copy thereof, and requesting the Justices to take into consideration the contents of said letter during the hearing of the case scheduled for January 10, 1973. Not content with that move, on December 8, 1972, respondent sent another letter to the same Justices of the Court of Appeals wherein he reminded them of a civil case he instituted against Justices of the Supreme Court for damages in the amount of P200,000 for a decision rendered not in accordance with law and justice, stating that he would not like to do it again but would do so if provoked. We pause here to observe that respondent del Mar seems to be of that frame of mind whereby he considers as in accordance with law and justice whatever he believes to be right in his own opinion and as contrary to law and justice whatever does not accord with his views. In other words, he would like to assume the role of this Court, personally and individually, in the interpretation and construction of the laws, evaluation of evidence and determination of what is in accordance with law and justice.

The documented incidents as narrated in the Appellate Court's Resolution of March 5, 1973, cannot more eloquently depict the very manifest and repeated threats of respondent del Mar to bludgeon the Justices of the Fourth Davison into reconsidering its decision which happened to be adverse to respondent's client. Respondent del Mar, instead of presenting lucid and forceful arguments on the merits of his plea for a reconsideration to convince the Justices of the Fourth Division of the alleged error in their decision, resorted to innuendos and veiled threats, even casting downright aspersion on the Justices concerned by insinuating that for their decision they could be criminally and civilly liable for knowingly rendering unjust judgment, or doing it through ignorance.

We quote with approval this portion of the Appellate Court's Resolution (March 5, 1973):

A just man can never be threatened, p. 145, rollo, is not at all true; any man, just or unjust, can be threatened; if he is unjust, he will succumb, if he is just, he will not, but the offense is committed, whether the threats do or do not succeed. As to his (respondent del Mar's reference to the New Society, p. 150, in his letter to his Excellency, complaining against those justices, let it be said that precisely it was under the Former Society that there had been so much disrespect for the constituted authorities, there was abuse, worse than abuse, there was arrogant abuse, of the so-called civil liberties, against the authorities, including the courts, not excluding even the President; it is this anarchy that is the program to cure in the New.

This Resolution of the Appellate Court of March 5, 1973, fittingly concluded that "counsel del Mar is found guilty of contempt and condemned to pay a fine of P200.00 and ordered suspended from the practice of law and pursuant to Sec. 9 of Rule 139, let certified copies of these papers be elevated to the Honorable Supreme Court". We upheld the Court of Appeals and gave full force and effect to this order of suspension from the practice of law when in Our resolution dated Nov. 19, 1973, the Judicial Consultant of this Court was directed to circularize all courts about the order of the Court of Appeals suspending Atty. Quirico del Mar from the practice of law.

Not satisfied with the wrong that he had already done against Associate Justices Magno S. Gatmaitan, Jose N. Leuterio and Ramon Gaviola, Jr., respondent del Mar sued the three Justices for damages in Civil Case No. R-13277 of the Court of First Instance of Cebu, trying to hold them liable for their decision in CA-G.R. No. 46504-R; that the case for damages (R-13277)was terminated by compromise agreement after Mr. del Mar himself moved for the dismissal of his complaint apologized to the Court of Appeals and the Justices concerned, and agreed to pay nominal moral damages in favor of the defendants-justices. This is the undeniable indication that respondent del Mar did not only threaten the three Justices of the Appellate Court but he actually carried out his threat, although he did not succeed in making them change their minds in the case they decided in accordance with the exercise of their judicial discretion emanating from pure conviction.

To add insult to injury, respondent del Mar had the temerity to file his motion on October 10, 1973, before Us, asking that his suspension from the practice of law imposed by the Court of Appeals be ignored because of the amicable settlement reached in Civil Cases in Legal Ethics Bachelor of Laws 3A 84

Case No. R-13277 of the Court of First Instance of Cebu which was the action for damages filed against the three Justices of the Appellate Court.

Respondent del Mar's ire at the Appellate Court, fanned by the wind of frustration, turned against Us when We denied on May 14, 1973, his petition for review on certiorari of the decision of the Appellate Court, G. R. No. L-36800, for on May 25, 1973, he filed his motion for reconsideration and wrote a letter addressed to the Clerk of this Court requesting the names of the Justices of this Court who supported the resolution denying his petition, together with the names of the Justices favoring his motion for reconsideration. This motion for reconsideration We denied for lack of merit in Our resolution dated June 15, 1973. He, then, filed a manifestation dated July 1, 1973, before Us, stating brazenly, among other things, "I can at this time reveal to you that, had your Clerk of Court furnished me with certified true copies of the last two Resolutions of the Supreme Court confirming the decision of the Court of Appeals in the case entitled Francisco M. Gica vs. Jorge Montecillo, I would have filed against the Justices supporting the same, civil and criminal suit as I did to the Justices of the Court of Appeals who, rewarding the abhorent falsification committed by Mr. Gica , reversed for him the decisions of the City Court and the Court of First Instance of Cebu, not with a view to obtaining a favorable judgment therein but for the purpose of exposing to the people the corroding evils extant in our Government, so that they may well know them and work for their extermination" (Emphasis supplied. In one breath and in a language certainly not complimentary to the Appellate Court and to Us, respondent del Mar again made his veiled threat of retribution aimed at the Appellate Court and at Us for Our judicial acts in CA-G. R. No. 46504-R and G. R. No. L-36800.

Our immediate reaction to this manifestation, dictated by the impulse of placing on a pedestal beyond suspicion the integrity and honor of this Court and that of any of our other courts of justice, was to require by Resolution of July 16, 1973, respondent del Mar to show cause why disciplinary action should not be taken against him for the contemptuous statements contained in his manifestation.

At this juncture, We pause to reexamine the act of the Appellate Court in CA-G. R. No. 46504-R and our own in G. R. No. L-36800 to determine what error we might have committed to generate such a vengeful wrath of respondent del Mar which drove him to make his contemptuous statements.

The crucial issue in the case of oral defamation filed by Francisco M. Gica against Jorge Montecillo is as to what was the statement really uttered by Montecillo on the occasion in question — "binuang man gud na" (That act is senseless or done without thinking) or "buang man gud na siya" (He is foolish or stupid). If the statement uttered was the former, Montecillo should be exonerated; if the latter, he would be liable. The Appellate Court on evaluating the evidence ruled that the preponderance thereof favored Gica "on the principle that the positive evidence must prevail over the negative" and, therefore, what was really uttered by Montecillo on that occasion was "buang man gud na siya" (He is foolish or stupid), thus making him liable for oral defamation. When We denied in G. R. No. L-36800 the petition for review on certiorari of the Appellate Court's decision in CA-G. R. No. 46504-R, We did so because We could find no reason for disturbing the Appellate Court's finding and conclusion on the aforementioned lone question of fact which would warrant overturning its decision.

On July 13, 1973, Our resolution of May 14, 1973, denying the petition for review on certiorari of the decision of the Appellate Court in CA-G. R. No. 46504-R, became final and executory and the Court of Appeals was so informed.

To Our resolution of July 16, 1973, requiring respondent del Mar to show cause why he should not be disciplined for his statements contained in his manifestation of July 1, 1973, he submitted an explanation dated August 1, 1973, wherein he stated that "..., he is attaching hereto the criminal case he filed with the President of the Philippines (copy marked as Annex "A") and the civil case he instituted in the Court of First Instance of Cebu (copy marked as Annex "B") against Justices Magno S. Gatmaitan, Jose N. Leuterio and Ramon G. Gaviola, Jr., which embody the corroding evils he complained of as extant in the Government needing correction. He would have followed suit were it not for the fact that he is firmly convinced that human efforts in this direction will be fruitless . As manifested, he, therefore, decided to retire from a life of militancy to a life of seclusion leaving to God the filling-up of human deficiencies" (Emphasis supplied).

This so-called explanation is more, in its tenor, of a defiant justification of his contemptuous statements contained in the manifestation of July 1, 1973. Its contents reveal a continued veiled threat against the Justices of this Court who voted to deny del Mar's petition for review on certiorari of the decision of the Court of Court Appeals in CA-G R. No. 46504-R.

Our resolution of September 4, 1973, required respondent Atty. Quirico del Mar to appear personally at the hearing of his explanation on November 5, 1973. On September 26, 1973, respondent filed an additional explanation with this Court, wherein he stated, among other things: "Graft, corruption and injustice are rampant in and outside of the Government. It is this state of things that convinced me that all human efforts to correct and/or reform the said evils will be fruitless and, as stated in my manifestation Cases in Legal Ethics Bachelor of Laws 3A 85

to you, I have already decided to retire from a life of militancy to a life of seclusion, leaving to God the filling-up of human deficiencies."

Again We noticed that the tenor of this additional explanation is a toned-down justification(as compared to his explanation of August 1, 1973) of his previous contemptuous statements without even a hint of apology or regret. Respondent is utilizing what exists in his mind as state of graft, corruption and injustice allegedly rampant in and outside of the government as justification for his contemptuous statements. In other words, he already assumed by his own contemptuous utterances that because there is an alleged existence of rampant corruption, graft, and injustice in and out of the government, We, by Our act in G. R. No. L-36800, are among the corrupt, the grafters and those allegedly committing injustice. We are at a complete loss to follow respondent del Mar's logic and We certainly should, with understanding condescension, commiserate in the pitiable state of mind of a brother in the legal profession who seems to have his reasoning and sense of proportion blurred or warped by an all-consuming obsession emanating from a one-track mind that only his views are absolutely correct and those of others are all wrong.

When this Court in the resolution dated November 19, 1973, directed the Judicial Consultant to circularize to all courts concerning the order of the Court of Appeals suspending Atty. Quirico del Mar from the practice of law, respondent del Mar filed a motion for reconsideration on December 12, 1973, requesting Us to reconsider said directive. In Our resolution dated December 17, 1973, respondent del Mar, after he had been interpellated by the Court, was given a period of five days to submit a memorandum in support of his explanation. In view of respondent's manifestation that there was no need for further investigation of the facts involved, in accordance with Section 29 of Rule 138, We resolved that the matter be deemed submitted for decision.

In the memorandum entitled "Explanation" dated December 20, 1973, respondent del Mar stated that he suffered repeated strokes of high blood pressure which rendered him dizzy and unstable mentally and physically; that his sight is blurred and his reasoning is faulty; he easily forgets things and cannot readily correlate them; that for any and all mistakes he might have committed he asked for forgiveness; he reiterated that "blunders" were committed by the Court of Appeals in its decision and that the Justices thereof knowingly rendered the same in violation of Article 204 of the Penal Code; he persisted in his view that the Court of Appeals committed an error in its decision; justified his act of invoking Article 204 of the Penal Code in trying to make the Appellate Justices liable; that he was high in his academic and scholastic standing during his school days; that "with all the confusion prevailing nowadays, the undersigned has decided for reasons of sickness and old age to retire from the practice of law. He hopes and expects that, with the approval thereof by the Supreme Court, he could have himself released from the obligation he has contracted with his clients as regards all his pending cases."

It is Our observation that the tenor of this explanation although pleading mental and physical ailment as a mitigation of the contemptuous acts, is still that of arrogant justification for respondent's previous statements. We quote:

The undersigned was asked if he had not filed against the Justices of the Supreme Court a case for damages against them. He answered in the affirmative, but the case was dismissed by Judge Villasor, of the Court of First Instance of Cebu, because of an American ruling that a justice of the Supreme Court of the Philippines cannot be civilly held liable. The ruling cited was rendered during the American regime in the Philippines which was still subject to the jurisdiction of the American laws. But the Philippines is now independent and Article 204 of the Penal Code still remains incorporated therein for observance and fulfillment. Up to now, there is not yet any definite ruling of the Supreme Court thereon

While still persistently justifying his contemptuous statements and at the same time pleading that his physical and mental ailment be considered so that We may forgive respondent del Mar he shrewdly stated at the end of his explanation that he has decided for reasons of sickness and old age to retire from the practice of law, in practical anticipation of whatever penalty We may decide to impose on him and thus making it appear that he has voluntarily done so with honor and in complete evasion of whatever this Court may decide to do in this case.

With full realization that a practicing lawyer and officer of the court facing contempt proceedings cannot just be allowed to voluntarily retire from the practice of law, an act which would negate the inherent power of the court to punish him for contempt in defense of its integrity and honor, We resolve, by resolution of January 10, 1974, to deny said prayer of Atty. del Mar without prejudice to his making arrangement directly with his clients.

To aged brethren of the bar it may appear belated to remind them that second only to the duty of maintaining allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines, is the duty of all attorneys to observe and maintain the respect due to the courts of justice and judicial officers (Sec. 20 (b) Rule 138, Rules of Court). But We do


remind them of said duty to emphasize to their younger brethren its paramount importance. A lawyer must always remember that he is an officer of the court exercising a high privilege and serving in the noble mission of administering justice.

It is the duty of the lawyer to maintain towards the courts a respectful attitude (People vs. Carillo, 77 Phil. 572). As an officer of the court, it is his duty to uphold the dignity and authority of the court to which he owes fidelity, according to the oath he has taken. Respect for the courts guarantees the stability of our democratic institutions which, without such respect, would be resting on a very shaky foundation. (In re Sotto 82 Phil. 595).

As We stated before:

We concede that a lawyer may think highly of his intellectual endowment. That is his privilege. And, he may suffer frustration at what he feels is others' lack of it. This is his misfortune. Some such frame of mind, however, should not be allowed to harden into a belief that he may attack a court's decision in words calculated to jettison the time-honored aphorism that courts are the temples of right. He should give due allowance to the fact that judges are but men; and men are encompassed by error, fettered by fallibility.

... To be sure, lawyers may come up with various methods, perhaps much more effective, in calling the Court's attention to the issues involved. The language vehicle does not run short of expressions, emphatic but respectful, convincing but not derogatory, illuminating but not offensive (Rheem of the Philippines vs. Ferrer G. R. No. L-22979, June 26, 1967; 20 SCRA 441, 444-445)

Criminal contempt has been defined as a conduct that is directed against the dignity and authority of the court or a judge acting judicially. It is an act obstructing the administration of justice which tends to bring the court into disrepute or disrespect (17 C. J. S. 7).

We have held that statements contained in a motion to disqualify a judge, imputing to the latter conspiracy or connivance with the prosecutors or concocting a plan with a view to securing the conviction of the accused, and implicating said judge in a supposed attempt to extort money from the accused on a promise or assurance of the latter's acquittal, all without basis, were highly derogatory and serve nothing but to discredit the judge presiding the court in an attempt to secure his disqualification. Statements of that nature have no place in a court pleading and if uttered by a member of the bar, constitute a serious disrespect. We said:

As an officer of the court, it is his sworn and moral duty to help build and not destroy unnecessarilythe high esteem and regard towards the court so essential to the proper administration of justice(Emphasis supplied). (People vs. Carillo, 43 O.G. No. 12, p. 5021; De Joya et al vs. C. F. I. of Rizal and Rilloraza 52 0. G. 6150).

As already stated, the decision of the Court of Appeals in CA-G. R. No. 46504-R was based on its evaluation of the evidence on only one specific issue. We in turn denied in G. R. No. L-36800 the petition for review on certiorariof the decision because We found no reason for disturbing the appellate court's finding and conclusion. In both instances, both the Court of Appeals and this Court exercised judicial discretion in a case under their respective jurisdiction. The intemperate and imprudent act of respondent del Mar in resorting to veiled threats to make both Courts reconsider their respective stand in the decision and the resolution that spelled disaster for his client cannot be anything but pure contumely for said tribunals.

It is manifest that respondent del Mar has scant respect for the two highest Courts of the land when on the flimsy ground of alleged error in deciding a case, he proceeded to challenge the integrity of both Courts by claiming that they knowingly rendered unjust judgment. In short, his allegation is that they acted with intent and malice, if not with gross ignorance of the law, in disposing of the case of his client.

We note with wonder and amazement the brazen effrontery of respondent in assuming that his personal knowledge of the law and his concept of justice are superior to that of both the Supreme Court and the Court of Appeals. His pretense cannot but tend to erode the people's faith in the integrity of the courts of justice and in the administration of justice. He repeatedly invoked his supposed quest for law and justice as justification for his contemptuous statements without realizing that, in seeking both abstract elusive terms, he is merely pursuing his own personal concept of law and justice. He seems not to comprehend that what to him may be lawful or just may not be so in the minds of others. He could not accept that what to him may appear to be right or correct may be wrong or erroneous from the viewpoint of another. We understand that respondent's mind delves into the absolute without considering the universal law of change. It is with deep concern that We view such a state of mind of a practicing lawyer since what


We expect as a paramount qualification for those in the practice of law is broadmindedness and tolerance, coupled with keen perception and a sound sense of proportion in evaluating events and circumstances.

For a lawyer in the twilight of his life, with supposed physical and mental ailments at that, who dares to challenge the integrity and honor of both the Supreme Court and Court of Appeals, We have nothing but commiseration and sympathy for his choosing to close the book of his long years of law practice not by voluntary retirement with honor but in disciplinary action with ignominy and dishonor. To those who are in the practice of law and those who in the future will choose to enter this profession, We wish to point to this case as a reminder for them to imprint in their hearts and minds that an attorney owes it to himself to respect the courts of justice and its officers as a fealty for the stability of our democratic institutions.

WHEREFORE, the resolution of the Court of Appeals in CA-G.R. No. 46504-R, dated March 5, 1973, suspending Atty. Quirico del Mar from the practice of law, as implemented by Our resolution of November 19, 1973, is hereby affirmed.

Respondent Atty. Quirico del Mar for his misconduct towards the Supreme Court, shall be, as he is hereby, suspended from the practice of law until further orders of this Court, such suspension to take effect immediately. (In re Almacen, No. L-27654, Feb. 18, 1970, 31 SCRA, p. 562.)

The Judicial Consultant of this Court is directed to circularize all courts and the Integrated Bar of the Philippines regarding the indefinite suspension of Atty. Quirico del Mar from the practice of law.

SO ORDERED.



Manila


THIRD DIVISION

A.M. No. RTJ-07-2045 January 19, 2010

OFFICE OF THE COURT ADMINISTRATOR, Complainant, vs.JUDGE HARUN B. ISMAEL, Respondent.

R E S O L U T I O N

CORONA, J.:

On April 25 to May 14, 2005, a judicial audit was conducted in the Regional Trial Court (RTC) of Pagadian, Zamboanga del Sur, Branch 22, presided over by respondent Judge Harun B. Ismael.

The judicial audit resulted in the issuance of a memorandum dated June 9, 2005 by the Office of Court Administrator (OCA)1 directing respondent to explain his failure to decide and act on current and inherited cases, as well as to resolve incidents in various cases pending before him, within the reglementary period provided by law.2 Respondent was likewise directed to inform the OCA if cases already submitted for decision or resolution had in fact been decided or resolved within the reglementary period.3

Consequently, respondent was ordered to immediately cease hearing cases in his sala and confine himself to deciding or resolving cases submitted for decision or resolution. In respondent’s stead, Judge Edilberto G. Absin was directed to handle active cases, other than cases submitted for decision, until respondent could comply with the directives or until he retired.

The OCA likewise directed Atty. Insor A. Pantaran to explain the results of the audit, as was required of respondent. Atty. Pantaran was the clerk of court of the RTC of Pagadian, Zamboanga del Sur, Branch 22 during respondent’s tenure. Atty. Pantaran complied with the June 9, 2005 memorandum in a letter dated May 19, 2006.4

In its memorandum dated February 26, 2007,5 the OCA noted that respondent failed to fully comply with its directives in the June 9, 2005 memorandum. Neither did he ask for extensions of time within which to comply with the subject directives.

On examination of Atty. Pantaran’s May 19, 2006 letter/compliance, the OCA found that respondent had partially complied with the directives of the June 9, 2005 memorandum, having already decided or resolved some of the cases he was directed to act on. Nonetheless, the OCA established that respondent committed gross inefficiency when he unduly delayed actions in a huge number of cases. The OCA recommended that respondent be finedP20,000. Furthermore, the OCA recommended that Judge Absin be directed to decide and resolve the cases pending in respondent’s sala. The OCA likewise directed the designation of Judge Loreto C. Quinto6 as assisting judge.

The factual findings of the OCA are well-taken. However, we vary the penalty imposed in the light of the circumstances of the case.

It is settled that failure to decide or resolve cases within the reglementary period constitutes gross inefficiency7and is not excusable. It is a less serious charge8 and is punishable by either suspension from office without salaries and benefits for not less than one month but not more than three months, or a fine of more than P10,000 but not exceeding P20,000.91avvphi1

The New Code of Judicial Conduct requires that a judge shall perform all judicial duties, including the delivery of reserved decisions, efficiently, fairly and with reasonable promptness.10 Rule 3.05, Canon 3 of the Code11admonishes all judges to dispose of the court’s business promptly and decide cases12 within the period specified in Section 15 (1) and (2), Article VIII of the Constitution.13

We emphasize that the administration of justice is a joint responsibility of the judge and the lawyer.14 As aptly held in Salvador v. Judge Limsiaco:15

A judge’s foremost consideration is the administration of justice. Thus, he should follow the time limit set for deciding cases. xxx Failure to comply within the mandated period constitutes a serious violation of the constitutional right of the parties to a speedy disposition of their cases. It also undermines the people’s faith and confidence in the judiciary, lowers its standards and brings it to disrepute. Decision making, among other duties, is the most important duty of a member of the bench. (citations omitted)


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Pursuant to A.M. No. 02-9-02-SC,16 this administrative case against respondent shall also be considered as a disciplinary proceeding against him as a member of the bar.17 Violation of the basic tenets of judicial conduct embodied in the New Code of Judicial Conduct for the Philippine Judiciary and the Code of Judicial Conduct constitutes a breach of Canons 118 and 1219 as well as Rules 1.0320 and 12.0421 of the Code of Professional Responsibility (CPR).

WHEREFORE, respondent Judge Harun B. Ismael is hereby found GUILTY of gross inefficiency and violation of Section 5, Canon 6 of the New Code of Judicial Conduct for the Philippine Judiciary for which he is FINED in the amount of P20,000.

Respondent is likewise found GUILTY of violation of Canons 1 and 12 as well as Rules 1.03, 10.03 and 12.04 of the Code of Professional Responsibility for which he is FINED in the amount of P10,000.

Let a copy of this resolution be attached to the personal records of respondent in the Office of Administrative Services, the Office of the Court Administrator and the Office of the Bar Confidant.

SO ORDERED.



Manila

THIRD DIVISIONCases in Legal Ethics Bachelor of Laws 3A 90







A.C. No. 4955 September 12, 2011

ANTONIO CONLU, Complainant, vs.ATTY. IRENEO AREDONIA, JR., Respondent.

R E S O L U T I O N

VELASCO, JR., J.:

Before the Court is a complaint1 for disbarment with a prayer for damages instituted by Antonio Conlu (Antonio) against Atty. Ireneo Aredonia, Jr. (Atty. Ireneo) on grounds of gross negligence and dereliction of sworn duty.

Antonio was the defendant in Civil Case No. 1048, a suit for Quieting of Title and Recovery of a Parcel of Land commenced before the Regional Trial Court (RTC) in Silay City, Negros Occidental.2 He engaged the services of Atty. Ireneo to represent him in the case. On March 16, 1995, the RTC rendered judgment3 adverse to Antonio. Therefrom, Atty. Ireneo, for Antonio, appealed to the Court of Appeals (CA) whereat the recourse was docketed as CA-G.R. CV No. 50075.

The CA, per its Resolution of February 10, 1997, eventually dismissed the appeal for non-filing of the appellant’s brief within the reglementary period. Antonio got wind of the dismissal from his wife who verified the status of the case when she happened to be in Manila. When confronted about the dismissal action, Atty. Ireneo promised to seek reconsideration, which he did, but which the appellate court later denied for belated filing of the motion.

In that motion4 he prepared and filed, Atty. Ireneo averred receiving the adverted February 10, 1997 CA Resolution5 only on April 25, 1997, adding in this regard that the person in the law office who initially received a copy of said resolution was not so authorized. However, the CA denied the motion for having been filed out of time. As the CA would declare in a subsequent resolution dated December 3, 1997, there was a valid receipt by Atty. Ireneo, as shown by the registry return card with his signature, of a copy of the CA’s February 10, 1997 Resolution. Accordingly, as the CA wrote, the motion for reconsideration of the February resolution which bore the mailing date May 8, 1997 cannot but be considered as filed way out of time.

In light of these successive setbacks, a disgusted Antonio got the case records back from Atty. Ireneo and personally filed on October 13, 1997 another motion for reconsideration. By Resolution of December 3, 1997, the CA again denied6 this motion for the reason that the prejudicial impact of the belated filing by his former counsel of the first motion for reconsideration binds Antonio.

Forthwith, Antonio elevated his case to the Court on a petition for certiorari but the Court would later dismiss the petition and his subsequent motion to reconsider the denial.

Such was the state of things when Antonio lodged this instant administrative case for disbarment with a prayer for damages. To support his claim for damages, Antonio asserts having suffered sleepless nights, mental torture and anguish as a result of Atty. Ireneo’s erring ways, besides which Antonio also lost a valuable real property subject of Civil Case No. 1048.

Following Atty. Ireneo’s repeated failure to submit, as ordered, his comment, a number of extensions of time given notwithstanding,7 the Court referred the instant case, docketed as Administrative Case No. 4955, to its Office of the Bar Confidant (OBC) for evaluation, report and recommendation.

Acting on OBC’s Report and Recommendation8 dated November 23, 2000, the Court, by Resolution of January 31, 2001, directed Atty. Ireneo to show cause within ten (10) days from notice—later successively extended via Resolutions dated July 16 and 29, 2002—why he should not be disciplinarily dealt with or held in contempt for failing to file his comment and to comply with the filing of it.

In separate resolutions, the Court (a) imposed on Atty. Ireneo a fine of PhP 2,000; 9 (b) ordered his arrest but which the National Bureau of Investigation (NBI) cannot effect for the reason: "whereabouts unknown";10 (c) considered him as having waived his right to file comment; and (d) referred the administrative case to the Integrated Bar of the Philippines (IBP) for report, investigation and recommendation.11

At the IBP, Atty. Ireneo desisted from addressing his administrative case, his desistance expressed by not attending the mandatory conference or filing the required position paper. On the basis of the pleadings, the IBP-Commission on Bar Discipline (CBD) found Cases in Legal Ethics Bachelor of Laws 3A 91

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Ireneo liable for violating Canon 1, Rules 1.01 and 1.03 and Canon 18, Rule 18.03 of the Code of Professional Responsibility and recommended his suspension from the practice of law for a period of six (6) months, with warning. The salient portions of the investigating commissioner’s Report and Recommendation12 read as follows:

Uncontroverted and uncontested are respondent’s inability to file appellant’s Brief, his futile attempts to mislead the Court of Appeals that he did not personally received [sic] the resolution of dismissal. His filing of the Motion for Reconsideration five (5) months late. [sic]

Aggravated by his failure to file his comment in the instant administrative complaint despite his numerous motions for extension to file the same. [sic]

He is even adamant to comply with the show cause order of the bar confidant. The series of snobbish actuations in several resolution of the Supreme Court enjoining him to make the necessary pleading. [sic]

By Resolution No. XVIII-2008-523, the IBP Board of Governors adopted and approved said report and recommendation of the CBD.13

We agree with the inculpatory findings of the IBP but not as to the level of the penalty it recommended.

Res ipsa loquitur. Atty. Ireneo had doubtless been languid in the performance of his duty as Antonio’s counsel. He neglected, without reason, to file the appellant’s brief before the CA. He failed, in short, to exert his utmost ability and to give his full commitment to maintain and defend Antonio’s right. Antonio, by choosing Atty. Ireneo to represent him, relied upon and reposed his trust and confidence on the latter, as his counsel, to do whatsoever was legally necessary to protect Antonio’s interest, if not to secure a favorable judgment. Once they agree to take up the cause of a client, lawyers, regardless of the importance of the subject matter litigated or financial arrangements agreed upon, owe fidelity to such cause and should always be mindful of the trust and confidence reposed on them.14 And to add insult to injury, Atty. Ireneo appeared not to have taken any effort to personally apprise Antonio of the dismissal of the appeal, however personally embarrassing the cause for the dismissal might have been. As mentioned earlier, Antonio came to know about the outcome of his appeal only after his wife took the trouble of verifying the case status when she came to Manila. By then, all remedies had been lost.

It must be remembered that a retained counsel is expected to serve the client with competence and diligence. This duty includes not merely reviewing the cases entrusted to the counsel’s care and giving the client sound legal advice, but also properly representing the client in court, attending scheduled hearings, preparing and filing required pleadings, prosecuting the handled cases with reasonable dispatch, and urging their termination without waiting for the client or the court to prod him or her to do so. The lawyer should not be sitting idly by and leave the rights of the client in a state of uncertainty.15

The failure to file a brief resulting in the dismissal of an appeal constitutes inexcusable negligence.16 This default translates to a violation of the injunction of Canon 18, Rules 18.03 and 18.04 of the Code of Professional Responsibility, respectively providing:

CANON 18 — A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.

x x x x

Rule 18.03 — A lawyer shall not neglect a 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.

As if his lack of candor in his professional relationship with Antonio was not abhorrent enough, Atty. Ireneo tried to mislead the appellate court about the receipt of a copy of its February 10, 1997 Resolution dismissing the appeal in CA-G.R. CV No. 50075. He denied personally receiving such copy, but the CA found and declared that he himself received said copy. The CA arrived at this conclusion thru the process of comparing Atty. Ireneo’s signature appearing in the pleadings with that in the registry return card. Both signatures belong to one and the same person. Needless to stress, Atty. Ireneo had under the premises indulged in deliberate falsehood, contrary to the self-explanatory prescriptions of Canon 1, Rule 1.01 and Canon 10, Rule 10.01, which provide:







CANON 1 — A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL PROCEDURES.

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

x x x x

CANON 10 — A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE COURT.

Rule 10.01 — A lawyer shall not do any falsehood, nor consent to the doing of any in court; nor shall he mislead, or allow the Court to be misled by any artifice. (Emphasis supplied.)

We cannot write finis to this case without delving into and addressing Atty. Ireneo’s defiant stance against the Court as demonstrated by his repetitive disregard of its resolution to file his comment on the basic complaint. After requesting and securing no less than three (3) extensions of time to file his comment, he simply closed, so to speak, communication lines. And when ordered to give an explanation through a show-cause directive for not complying, he asked for and was granted a 30-day extension. But the required comment never came. When the Court eventually directed the NBI to arrest him, he just left his last known address and could not be located.

The Court’s patience has been tested to the limit by what in hindsight amounts to a lawyer’s impudence and disrespectful bent. At the minimum, members of the legal fraternity owe courts of justice respect, courtesy and such other becoming conduct so essential in the promotion of orderly, impartial and speedy justice. What Atty. Ireneo has done was the exact opposite. What is clear to the Court by now is that Ireneo was determined all along not to submit a comment and, in the process, delay the resolution of the instant case. By asking several extensions of time to submit one, but without the intention to so submit, Ireneo has effectively trifled with the Court’s processes, if not its liberality. This cannot be tolerated. It cannot be allowed to go unpunished, if the integrity and orderly functioning of the administration of justice is to be maintained. And to be sure, Atty. Ireneo 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.17 Manifestly, he has fallen short of the diligence required of every member of the Bar. The pertinent Canon of the Code of Professional Responsibility provides:

CANON 12 — A LAWYER SHALL EXERT EVERY EFFORT AND CONSIDER HIS DUTY TO ASSIST IN THE SPEEDY AND EFFICIENT ADMINISTRATION OF JUSTICE.

x x x x

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.

Rule 12.04 — A lawyer shall not unduly delay a case, impede the execution of a judgment or misuse Court processes. (Emphasis supplied.)1avvphil

A lawyer may be disbarred or suspended for gross misconduct or for transgressions defined by the rules as grounds to strip a lawyer of professional license.18 Considering, however, the serious consequences of either penalty, the Court will exercise its power to disbar or suspend only upon a clear, convincing, and satisfactory proof of misconduct that seriously affects the standing of a lawyer as an officer of the court and as member of the bar.

In Heirs of Tiburcio F. Ballesteros, Sr. v. Apiag,19 the Court penalized a lawyer who failed to file a pre-trial brief and other pleadings, such as position papers, leading to the dismissal of the case with six months suspension. In Soriano v. Reyes, 20 We meted a one-year suspension on a lawyer for inexcusable negligence, the latter having failed to file a pre-trial brief leading to the dismissal of the case and failure to prosecute in another case, and omitting to apprise complainant of the status of the two cases with assurance of his diligent attention to them.

In this case, Atty. Ireneo should be called to task for the interplay of the following: his inexcusable negligence that resulted in the dismissal of Antonio’s appeal, coupled by his lack of candor in not apprising Antonio of the status of his appealed case; his attempt to mislead the CA in a vain bid to evade the consequence of the belated filing of a motion for reconsideration; and, last but not least, his cavalier disregard of the Court’s directives primarily issued to resolve the charges brought against him by Antonio. We deem it Cases in Legal Ethics Bachelor of Laws 3A 93





fitting that Atty. Ireneo be suspended from the practice of law for a period of one year, up from the penalty recommended by the IBP Board of Governors. This should serve as a constant reminder of his duty to respect courts of justice and to observe that degree of diligence required by the practice of the legal profession. His being a first offender dictates to large degree this leniency.

The prayer for damages cannot be granted. Let alone the fact that Antonio chose not to file his position paper before the IBP-CBD and, therefore, was unable to satisfactorily prove his claim for damages, a proceeding for disbarment or suspension is not in any sense a civil action; it is undertaken and prosecuted for public welfare. It does not involve private interest and affords no redress for private grievance.21

WHEREFORE, respondent Atty. Ireneo Aredonia, Jr. is declared GUILTY of inexcusable negligence, attempting to mislead the appellate court, misuse of Court processes, and willful disobedience to lawful orders of the Court. He is hereby SUSPENDED from the practice of law for a period of one (1) year effective upon his receipt of this Resolution, with WARNING that a repetition of the same or similar acts will be dealt with more severely. Let a copy of this Decision be furnished the Office of the Bar Confidant, the Integrated Bar of the Philippines, and all courts throughout the country.

SO ORDERED.



Manila

THIRD DIVISION



A.C. No. 7062 September 26, 2006[Formerly CBD Case No. 04-1355]

RENERIO SAMBAJON, RONALD SAMBAJON, CRISANTO CONOS, and FREDILYN BACULBAS, complainants, vs.ATTY. JOSE A. SUING, respondent.

D E C I S I O N

CARPIO MORALES, J.:

Complainants, via a complaint1 filed before the Integrated Bar of the Philippines (IBP), have sought the disbarment of Atty. Jose A. Suing (respondent) on the grounds of deceit, malpractice, violation of Lawyer's Oath and the Code of Professional Responsibility.2

Herein complainants were among the complainants in NLRC Case No. 00-0403180-98, "Microplast, Inc. Workers Union, Represented by its Union President Zoilo Ardan, et al. v. Microplast, Incorporated and/or Johnny Rodil and Manuel Rodil ," for Unfair Labor Practice (ULP) and Illegal Dismissal, while respondent was the counsel for the therein respondents. Said case was consolidated with NLRC Case No. 00-04-03161-98, "Microplast Incorporated v. Vilma Ardan, et al.," for Illegal Strike.

By Decision of August 29, 2001,3 Labor Arbiter Ariel Cadiente Santos dismissed the Illegal Strike case, and declared the employer-clients of respondent guilty of ULP. Thus, the Labor Arbiter disposed:

WHEREFORE, premises considered, the complaint for illegal strike is dismissed for lack of merit.

Respondents Microplast, Inc., Johnny Rodil and Manuel Rodil are hereby declared guilty of Unfair Labor Practice for union busting and that the dismissal of the nine (9) complainants are declared illegal. All the respondents in NLRC Case No. 00-04-03161-98 for illegal dismissal are directed to reinstate all the complainants to their former position with full backwages from date of dismissal until actual reinstatement computed as follows:

3. CRISANTO CONOS

Backwages:

Basic Wage:

2/21/98 – 10/30/99 = 20.30 mos.P198.00 x 26 days x 20.30 = P104, 504.40

10/31/99 - 10/31/00 = 12 mos.P223.50 x 26 days x 12 = 69, 732.00

11/01/00 - 8/30/01 = 10 mos.P250.00 x 26 days x 10 = 65,000.00

P239,236.40

13th Month Pay:1/12 of P239,236.40 = 19,936.36

SILP

2/16/98 - 12/31/98 = 10.33 mos.P198.00 x 5 days x 10.33/ 12 = 852.22

1/1/99 - 12/31/99 = 12mos.P223.50 x 5 days x 12/12 = 1,117.50

1/1/00 - 10/30/01 = 20 mos.P250.00 x 5 days x 20/12 = 2,083.33 4,053.05

P263,225.81

x x x x

7. RONALD SAMBAJON 263,225.81


(same as Conos)

8.FREDELYN BACULBAS(same as Conos) 263,225.81

9. RENEIRO SAMBAJON(same as Conos) 263,225.81

Total Backwages P2,370,674.38

Respondents are jointly and severally liable to pay the above-mentioned backwages including the various monetary claims stated in the Manifestation dated August 24, 1998 except payment of overtime pay and to pay 10% attorney's fees of all sums owing to complainants.4 (Emphasis and underscoring supplied)

The Decision having become final and executory, the Labor Arbiter issued on September 2, 2003 a Writ of Execution.5

In the meantime, on the basis of individual Release Waiver and Quitclaims dated February 27, 2004 purportedly signed and sworn to by seven of the complainants in the ULP and Illegal Dismissal case before Labor Arbiter Santos in the presence of respondent, the Labor Arbiter dismissed said case insofar as the seven complainants were concerned, by Order dated March 9, 2004. 6

Herein complainants, four of the seven who purportedly executed the Release Waiver and Quitclaims, denied having signed and sworn to before the Labor Arbiter the said documents or having received the considerations therefor. Hence, spawned the administrative complaint at bar, alleging that respondent, acting in collusion with his clients Johnny and Manuel Rodil, "frustrated" the implementation of the Writ of Execution by presenting before the Labor Arbiter the spurious documents.

In a related move, complainants also filed a criminal complaint for Falsification against respondent, together with his clients Johnny and Manuel Rodil, before the Prosecutor's Office of Quezon City where it was docketed as I.S. No. 04-5203.7

In his Report and Recommendation8 dated September 27, 2005, IBP Commissioner Salvador B. Hababag, who conducted an investigation of the administrative complaint at bar, recommended that respondent be faulted for negligence and that he be reprimanded therefor with warning, in light of his following discussion:

The issue to be resolved is whether or not respondent can be disbarred for his alleged manipulation of four alleged RELEASE WAIVER AND QUITCLAIM by herein complainants who subsequently disclaimed the same as bogus and falsified.

A lawyer takes an oath when he is admitted to the Bar. By doing so he thereby becomes an Officer of the Court on whose shoulders rests the grave responsibility of assisting the courts in the proper, fair, speedy and efficient administration of justice.

Mindful of the fact that the present proceedings involve, on the one hand, the right of a litigant to seek redress against a member of the Bar who has, allegedly caused him damaged, either through malice or negligence, while in the performance of his duties as his counsel, and, on the other, the right of that member of the Bar to protect and preserve his good name and reputation, we have again gone over and considered [the] aspects of the case.

All the cases protesting and contesting the genuineness, veracity and due execution of the questioned RELEASE WAIVER AND QUITCLAIM namely: Urgent Ex-Parte Motion to Recall, Appeal and Falsification arePENDING resolution in their respective venues. Arbiter Ariel Cadiente Santos, who was supposed to know the identities of the herein complainants is not impleaded by the complainants when it was his solemn duty and obligation to ascertain true and real identities of person executing Release Waiver with Quitclaim.

The old adage that in the performance of an official duty there is that presumption of regularity unless proven otherwise, such was proven in the January 28, 2005 clarificatory questioning . . . :

x x x x

. . . In the case at bar, the question of whether or not respondent actually committed the despicable act would seem to be fairly debatable under the circumstances.9 (Emphasis and underscoring supplied)


The Board of Governors of the IBP, by Resolution No. XVII-2005-226, approved and adopted the Report and Recommendation of Commissioner Hababag.

After the records of the case were forwarded to the Office of the Bar Confidant (OBC), the Director for Bar Discipline of the IBP10 transmitted additional records including a Motion to Amend the Resolution No. XVII-2005-22611 filed by respondent.

One of the complainants, Renerio Sambajon (Sambajon), by Petition12 filed before the OBC, assailed the IBP Board Resolution. The Petition was filed three days after the 15-day period to assail the IBP Resolution. Sambajon explains that while his counsel received the Resolution on February 27, 2006, he only learned of it when he visited on March 16, 2006 his counsel who could not reach him, he (Sambajon) having transferred from one residence to another.

Giving Sambajon the benefit of the doubt behind the reason for the 3-day delay in filing the present petition, in the interest of justice, this Court gives his petition due course.

In respondent's Motion to Amend the IBP Board Resolution, he does not deny that those whom he met face to face before Commissioner Hababag were not the same persons whom he saw before Labor Arbiter Santos on February 27, 2004. 13 He hastens to add though that he was not familiar with the complainants as they were not attending the hearings before Arbiter Santos.14 Complainants15 and their former counsel Atty. Rodolfo Capocyan16 claim otherwise, however. And the Minutes17 of the proceedings before the National Conciliation Mediation Board in a related case, NCMB-NCR-NS-02-081-98, "Re: Microplast, Inc., Labor Dispute," which minutes bear respondent's and complainants' signatures, belie respondent's claim that he had not met complainants before.

Respondent, who declared that he went to the Office of the Labor Arbiter on February 27, 2004 on the request of his clients who "told him that on February 27, 2004 the seven claimants w[ould] be at the office of Arbiter Santos [to] submit their respective quitclaims and waivers," heaps on the Labor Arbiter the responsibility of ascertaining the identity of the parties who executed the Release Waiver and Quitclaims. But respondent himself had the same responsibility. He was under obligation to protect his clients' interest, especially given the amount allegedly given by them in consideration of the execution of the documents. His answers to the clarificatory questions of Commissioner Hababag do not, however, show that he discharged such obligation.

COMM. HABABAG:

But is it not a fact [that it is] also your duty to ask.. that the money of your client would go to the deserving employee?

ATTY. SUING:

I did not do that anymore, Your Honor, because there was already as you call it before a precedent in February of 1998 when my client directly made settlement to the nine or eight of the seventeen original complainants, Your Honor, and I did not participate. Hindi po ako nakialam don sa kanilang usapan because it is my belief that the best way, Your Honor, to have a dispute settled between the parties is that we let them do the discussion, we'll let them do the settlement because sometimes you know, Your Honor, sad to say, when lawyers are involved in a matters [sic] of settlement the dispute does not terminate as in this case, Your Honor.

x x x x

COMM. HABABAG:

Yes. What made you appear on said date and time before Arbiter Santos?

ATTY. SUING:

I was called by my client to go to the office of Arbiter Santos, number one, to witness the signing of the documents of Quitclaim and Waiver; number 2, so that according to them someone as a lawyer will represent them in that proceedings.

COMM. HABABAG:Cases in Legal Ethics Bachelor of Laws 3A 97

My query, did it not surprise you that no money was given to you and yet there would be a signing of Quitclaim Receipt and Release?

ATTY. SUING:

I am not, your Honor, because it happened before and there were no complaints, Your Honor.

COMM. HABABAG:

Just because it happened before you did not bother to see to it that there is a voucher so you just rely on your precedent, is that what you mean?

ATTY. SUING:

Yes, Your Honor, because I always believe that the parties who are talking and it is my client who knows them better than I do, Your Honor.

COMM. HABABAG:

So, you just followed the instruction of your client to be present at Arbiter Cadiente Santos office because there would be signing of Quitclaim Receipt and Release, it that clear?

ATTY. SUING:

Yes, Your Honor.

COMM. HABABAG:

[You] [d]id not bother to ask your client where is the money intended for the payment of these workers?

ATTY. SUING:

I did not ask.

COMM. HABABAG:

You did not asked [sic] your client who will prepare the documents?

ATTY. SUING:

As far as the documents are concerned, Your Honor.

COMM. HABABAG:

The Quitclaim Receipt and Release?

ATTY. SUING:

Yes, Your Honor, I remember this. They asked me before February of 1998.

COMM. HABABAG:

When you say they whom are you referring to?


ATTY. SUING:

I'm referring to my client, Your Honor.

COMM. HABABAG:

They asked me attorney can you please prepare us a document of Quitclaim and Waiver or give us a simple [sic] of Quitclaim and Waiver. I do recall that I made one but this document, Your Honor, is only a single document where all the signatories named are present because my purpose there really, Your Honor, is that so that each of them will be there together and they will identify themselves, see each other para ho siguradong sila-sila yong magkakasama at magkakakilanlan. x x x x And when the signing took place in February of 2004 it was made for any [ sic ] individual, Your Honor, no longer the document that I prepared when all of the seven will be signing in one document.

COMM. HABABAG:

Okay. You did not inquire from your client whom [sic] made the changes?

ATTY. SUING:

I did not anymore because, Your Honor, at the time when I was there, there are already people there, the seven complainants plus another woman.18 (Emphasis and underscoring supplied)

The Code of Professional Responsibility 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.

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.

To be sure, respondent's client Manuel Rodil did not request him to go to the Office of Labor Arbiter Cadiente to be a mere passive witness to the signing of the Release Waiver and Quitclaims. That he was requested to go there could only mean that he would exert vigilance to protect his clients' interest. This he conceded when he acknowledged the purpose of his presence at the Office of Labor Arbiter Santos, thus:

ATTY. SUING:

To go there, Your Honor, and represent them and see that these document[s] are properly signed and that these people are properly identified and verified them in front of Arbiter Ariel Cadiente Santos .19 (Emphasis and underscoring supplied)

That there was an alleged precedent in 1998 when a group of complainants entered into a compromise agreement with his clients in which he "did not participate" and from which no problem arose did not excuse him from carrying out the admitted purpose of going to the Labor Arbiter's office — "that [the complainants] are properly identified . . . in front of [the] Arbiter."

Besides, by respondent's own information, Labor Arbiter Santos was entertaining doubts on the true identity of those who executed the Release Waiver and Quitclaims.20 That should have alerted him to especially exercise the diligence of a lawyer to protect his clients' interest. But he was not and he did not.


Diligence is "the attention and care required of a person in a given situation and is the opposite of negligence." A lawyer serves his client with diligence by adopting that norm of practice expected of men of good intentions. He thus owes entire devotion to the interest of his client, warm zeal in the defense and maintenance of his rights, and the exertion of his utmost learning, skill, and ability to ensure that nothing shall be taken or withheld from him, save by the rules of law legally applied. It is axiomatic in the practice of law that the price of success is eternal diligence to the cause of the client.

The practice of law does not require extraordinary diligence (exactissima diligentia) or that "extreme measure of care and caution which persons of unusual prudence and circumspection use for securing and preserving their rights. All that is required is ordinary diligence (diligentia) or that degree of vigilance expected of a bonus pater familias. x x x21 (Italics in the original; underscoring supplied)

And this Court notes the attempt of respondent to influence the answers of his client Manuel Rodil when the latter testified before Commissioner Manuel Hababag:

COMM. HABABAG:

May pinirmahan dito na Quitclaim Receipt and Release. Ito ho ba sinong may gawa nitong Receipt Waiver and Quitclaim?

MR. RODIL:

Sila po.

COMM. HABABAG:

Ibig mong sabihin ibinigay sa yo to ng complainant o sinong nag-abot sa iyo nitong Receipt Waiver and Quitclaim?

MR. RODIL:

Si Atty. Suing po.

ATTY. SUING:

In fact, ang tanong sa iyo kung ibinigay daw sa iyo yong mga dokumentong ito or what?

COMM. HABABAG:

Okay, uulitin ko ha, tagalog na ang tanong ko sa iyo ha hindi na English. Ito bang Release Waiver and Quitclaim sino ang may gawa nito, sino ang nagmakinilya nito?

MR. RODIL:

Kami yata ang gumawa niyan.

COMM. HABABAG:

Pag sinabi mong kami yata ang may gawa sino sa inyong mga officer, tauhan o abogado ang gumawa nito?

MR. RODIL:

Matagal na ho yan eh.

x x x x


COMM. HABABAG:

Okay. Pangalawang gusto kong itanong. Sino ang naghatid nito kay Ariel Cadiente Santos para pirmahan ni Ariel Cadiente Santos?

MR. RODIL:

Si attorney po.

ATTY. SUING:

Wait. I did not bring the documents. The Commissioner is asking kung sino ang nagdala ng mga dokumento?

MR. RODIL:

Yong mga tao.

x x x x

COMM. HABABAG:

Simple ang tanong ko ha. Intindihin mo muna. Kanino mo inabot ang bayad sa nakalagay dito sa Release waiver and Quitclaim?

MR. RODIL:

Kay attorney po.

COMM. HABABAG:

Pag sinabi mong kay attorney sinong tinutukoy mong attorney?

ATTY. SUING:

Yong ibinigay na pera pambayad saan, yon ang tanong.

COMM. HABABAG:

Sundan mo ang tanong ko ha. Ako ang nagtatanong hindi ang abogado mo.

MR. RODIL:

Opo.

COMM. HABABAG:

Huwag kang tatawa. I'm reminding you serious tayo dito.

MR. RODIL:

Opo serious po.

COMM. HABABAG:


Sabi mo may inabutan kang taong pera?

MR. RODIL:

Opo.

COMM. HABABAG:

Ang sagot mo kay attorney. Sinong attorney ang tinutukoy mo?

MR. RODIL:

Atty. Suing po.

COMM. HABABAG:

Okay.

ATTY. SUING:

Your Honor,…

COMM. HABABAG:

Pabayaan mo muna. I'll come to that. Magkano kung iyong natatandaan ang perang inabot kay Atty. Suing?

MR. RODIL:

Yan ang hindi ko matandaan.

x x x x22 (Emphasis and underscoring supplied)

Thus, not only did respondent try to coach his client or influence him to answer questions in an apparent attempt not to incriminate him (respondent). His client contradicted respondent's claim that the Release Waiver and Quitclaim which he (respondent) prepared was not the one presented at the Arbiter's Office, as well as his implied claim that he was not involved in releasing to the complainants the money for and in consideration of the execution of the documents.

As an officer of the court, a lawyer is called upon to assist in the administration of justice. He is an instrument to advance its cause. Any act on his part that tends to obstruct, perverts or impedes the administration of justice constitutes misconduct.23 While the Commission on Bar Discipline is not a court, the proceedings therein are nonetheless part of a judicial proceeding, a disciplinary action being in reality an investigation by the Court into the misconduct of its officers or an examination into his character.24

In Bantolo v. Castillon, Jr.25 the respondent lawyer was found guilty of gross misconduct for his attempts to delay and obstruct the investigation being conducted by the IBP. Nonetheless, this Court found that a suspension of one month from the practice of law was enough to give him "the opportunity to retrace his steps back to the virtuous path of the legal profession."

While the disbarment of respondent is, under the facts and circumstances attendant to the case, not reasonable, neither is reprimand as recommended by the IBP. This Court finds that respondent's suspension from the practice of law for six months is in order.

WHEREFORE, respondent, Atty. Jose A. Suing, is found GUILTY of negligence and gross misconduct and isSUSPENDED from the practice of law for a period of Six (6) Months, with WARNING that a repetition of the same or similar acts will be dealt with more severely.


Let a copy of this Decision be furnished the Office of the Bar Confidant, the Integrated Bar of the Philippines, and all courts throughout the country.

SO ORDERED.

Case 26: Santiago vs. Rafanan / Topic:Canon 12 (see Case 10)



Manila


EN BANC

A.C. No. 7199 July 22, 2009[Formerly CBD 04-1386]

FOODSPHERE, INC., Complainant, vs.ATTY. MELANIO L. MAURICIO, JR., Respondent.

D E C I S I O N

CARPIO MORALES, J.:

Foodsphere, Inc. (complainant), a corporation engaged in the business of meat processing and manufacture and distribution of canned goods and grocery products under the brand name "CDO," filed a Verified Complaint1 for disbarment before the Commission on Bar Discipline (CBD) of the Integrated Bar of the Philippines (IBP) against Atty. Melanio L. Mauricio, Jr., popularly known as "Batas Mauricio" (respondent), a writer/columnist of tabloids including Balitang Patas BATAS, Bagong TIKTIK, TORO and HATAW!, and a host of a television program KAKAMPI MO ANG BATAS telecast over UNTV and of a radio program Double B-BATAS NG BAYAN aired over DZBB, for (1) grossly immoral conduct; (2) violation of lawyer’s oath and (3) disrespect to the courts and to investigating prosecutors.

The facts that spawned the filing of the complaint are as follows:

On June 22, 2004, a certain Alberto Cordero (Cordero) purportedly bought from a grocery in Valenzuela City canned goods including a can of CDO Liver spread. On June 27, 2004, as Cordero and his relatives were eating bread with the CDO Liver spread, they found the spread to be sour and soon discovered a colony of worms inside the can.

Cordero’s wife thus filed a complaint with the Bureau of Food and Drug Administration (BFAD). Laboratory examination confirmed the presence of parasites in the Liver spread.

Pursuant to Joint DTI-DOH-DA Administrative Order No. 1, Series of 1993, the BFAD conducted a conciliation hearing on July 27, 2004 during which the spouses Cordero demanded P150,000 as damages from complainant. Complainant refused to heed the demand, however, as being in contravention of company policy and, in any event, "outrageous."

Complainant instead offered to return actual medical and incidental expenses incurred by the Corderos as long as they were supported by receipts, but the offer was turned down. And the Corderos threatened to bring the matter to the attention of the media.

Complainant was later required by the BFAD to file its Answer to the complaint. In the meantime or on August 6, 2004, respondent sent complainant via fax a copy of the front page of the would-be August 10-16, 2004 issue of the tabloid Balitang Patas BATAS, Vol. 1, No. 122 which complainant found to contain articles maligning, discrediting and imputing vices and defects to it and its products. Respondent threatened to publish the articles unless complainant gave in to the P150,000 demand of the Corderos. Complainant thereupon reiterated its counter-offer earlier conveyed to the Corderos, but respondent turned it down.

Respondent later proposed to settle the matter for P50,000, P15,000 of which would go to the Corderos andP35,000 to his Batas Foundation. And respondent directed complainant to place paid advertisements in the tabloids and television program.

The Corderos eventually forged a KASUNDUAN3 seeking the withdrawal of their complaint before the BFAD. The BFAD thus dismissed the complaint.4 Respondent, who affixed his signature to the KASUNDUAN as a witness, later wrote in one of his articles/columns in a tabloid that he prepared the document.

On August 11, 2004, respondent sent complainant an Advertising Contract5 asking complainant to advertise in the tabloid Balitang Patas BATAS for its next 24 weekly issues at P15,000 per issue or a total amount of P360,000, and a Program Profile6 of the television program KAKAMPI MO ANG BATAS also asking complainant to place spot advertisements with the following rate cards: (a) spot buy 15-second TVC at P4,000; (b) spot buy 30-second TVC at P7,700; and (c) season buy [13 episodes, 26 spots] of 30-second TVC for P130,000.Cases in Legal Ethics Bachelor of Laws 3A 104

http://www.lawphil.net/judjuris/juri2009/jul2009/ac_7199_2009.html#fnt6






As a sign of goodwill, complainant offered to buy three full-page advertisements in the tabloid amounting to P45,000 at P15,000 per advertisement, and three spots of 30-second TVC in the television program at P7,700 each or a total of P23,100. Acting on complainant’s offer, respondent relayed to it that he and his Executive Producer were disappointed with the offer and threatened to proceed with the publication of the articles/columns.7

On August 28, 2004, respondent, in his radio program Double B- Batas ng Bayan at radio station DZBB, announced the holding of a supposed contest sponsored by said program, which announcement was transcribed as follows:

"OK, at meron akong pa-contest, total magpapasko na o ha, meron pa-contest si Batas Mauricio ang Batas ng Bayan. Ito yung ating pa-contest, hulaan ninyo, tatawag kayo sa telepono, 433-7549 at 433-7553. Ang mga premyo babanggitin po natin sa susunod pero ito muna ang contest, o, ‘aling liver spread ang may uod?’ Yan kita ninyo yan, ayan malalaman ninyo yan. Pagka-nahulaan yan ah, at sasagot kayo sa akin, aling liver spread ang may uod at anong companya ang gumagawa nyan? Itawag po ninyo sa 433-7549 st 433-7553. Open po an[g] contest na ito sa lahat ng ating tagapakinig. Pipiliin natin ang mananalo, kung tama ang inyong sagot. Ang tanong, aling liver spread sa Pilipinas an[g] may uod? 8 (Emphasis and italics in the original; underscoring supplied)

And respondent wrote in his columns in the tabloids articles which put complainant in bad light. Thus, in the August 31- September 6, 2004 issue of Balitang Patas BATAS, he wrote an article captioned "KADIRI ANG CDO LIVER SPREAD!" In another article, he wrote "IBA PANG PRODUKTO NG CDO SILIPIN!"9 which appeared in the same publication in its September 7-13, 2004 issue. And still in the same publication, its September 14-20, 2004 issue, he wrote another article entitled "DAPAT BANG PIGILIN ANG CDO."10

Respondent continued his tirade against complainant in his column LAGING HANDA published in another tabloid, BAGONG TIKTIK, with the following articles:11 (a) "Uod sa liver spread," Setyembre 6, 2004 (Taon 7, Blg.276);12(b) "Uod, itinanggi ng CDO," Setyembre 7, 2004 (Taon 7, Blg.277);13 (c) "Pagpapatigil sa CDO," Setyembre 8, 2004 (Taon 7, Blg.278);14 (d) "Uod sa liver spread kumpirmado," Setyembre 9, 2004 (Taon 7, Blg.279);15 (e) "Salaysay ng nakakain ng uod," Setyembre 10, 2004 (Taon 7, Blg.280);16 (f) "Kaso VS. CDO itinuloy," Setyembre 11, 2004 (Taon 7, Blg.281);17 (g) "Kasong Kidnapping laban sa CDO guards," Setyembre 14, 2004 (Taon 7, Blg.284);18 (h) "Brutalidad ng CDO guards," Setyembre 15, 2004 (Taon 7, Blg.285);19 (i) "CDO guards pinababanatan sa PNP," Setyembre 17, 2004 (Taon 7, Blg.287);20 (j) "May uod na CDO liver spread sa Puregold binili," Setyembre 18, 2004 (Taon 7, Blg.288);21 (k) "Desperado na ang CDO," Setyembre 20, 2004 (Taon 7, Blg.290);22 (l) "Atty. Rufus Rodriguez pumadrino sa CDO," Setyembre 21, 2004 (Taon 7,Blg. 291);23 (m) "Kasunduan ng CDO at Pamilya Cordero," Setyembre 22, 2004 (Taon 7,Blg. 292); 24 (n) "Bakit nagbayad ng P50 libo ang CDO," Setyembre 23, 2004 (Taon 7,Blg. 293).25

In his September 8, 2004 column "Anggulo ng Batas" published in Hataw!, respondent wrote an article "Reaksyon pa sa uod ng CDO Liver Spread."26

And respondent, in several episodes in September 2004 of his television program Kakampi Mo ang Batas aired over UNTV, repeatedly complained of what complainant claimed to be the "same baseless and malicious allegations/issues" against it.27

Complainant thus filed criminal complaints against respondent and several others for Libel and Threatening to Publish Libel under Articles 353 and 356 of the Revised Penal Code before the Office of the City Prosecutor of Quezon City and Valenzuela City. The complaints were pending at he time of the filing of the present administrative complaint.28

In the criminal complaints pending before the Office of the City Prosecutor of Valenzuela City, docketed as I.S. Nos. V-04-2917-2933, respondent filed his Entry of Appearance with Highly Urgent Motion to Elevate These Cases to the Department of Justice,29 alleging:

x x x x

2.N. The question here is this: What gives, Honorable (???) Prosecutors of the Office of the City Prosecutor of Valenzuela City?

x x x x

2.R. Can an ordinary person like Villarez simply be tossed around, waiting for miracles to happen?

2.S. Why? How much miracle is needed to happen here before this Office would ever act on his complaint?

x x x x

























8. With a City Prosecutor acting the way he did in the case filed by Villarez, and with an investigating prosecutor virtually kowtowing to the wishes of his boss, the Chief Prosecutor, can Respondents expect justice to be meted to them?

9. With utmost due respect, Respondents have reason to believe that justice would elude them in this Office of the City Prosecutor of Valenzuela City, not because of the injustice of their cause, but, more importantly, because of the injustice of the system;

10. Couple all of these with reports that many a government office in Valenzuela City had been the willing recipient of too many generosities in the past of the Complainant, and also with reports that a top official of the City had campaigned for his much coveted position in the past distributing products of the Complainant, what would one expect the Respondents to think?

11. Of course, not to be lost sight of here is the attitude and behavior displayed even by mere staff and underlings of this Office to people who dare complain against the Complainant in their respective turfs. Perhaps, top officials of this Office should investigate and ask their associates and relatives incognito to file, even if on a pakunwari basis only, complaints against the Complainant, and they would surely be given the same rough and insulting treatment that Respondent Villarez got when he filed his kidnapping charge here;30

And in a Motion to Dismiss [the case] for Lack of Jurisdiction31 which respondent filed, as counsel for his therein co-respondents-staffers of the newspaper Hataw!, before the Office of the City Prosecutor of Valenzuela City, respondent alleged:

x x x x

5. If the Complainant or its lawyer merely used even a little of whatever is inside their thick skulls, they would have clearly deduced that this Office has no jurisdiction over this action.32 (Emphasis supplied)

x x x x

Meanwhile, on October 26, 2004, complainant filed a civil case against respondent and several others, docketed as Civil Case No. 249-V-04,33 before the Regional Trial Court, Valenzuela City and raffled to Branch 75 thereof.

The pending cases against him and the issuance of a status quo order notwithstanding, respondent continued to publish articles against complainant34 and to malign complainant through his television shows.

Acting on the present administrative complaint, the Investigating Commissioner of the Integrated Bar of the Philippines (IBP) came up with the following findings in his October 5, 2005 Report and Recommendation:35

I.

x x x x

In Civil Case No. 249-V-04 entitled "Foodsphere, Inc. vs. Atty. [Melanio] Mauricio, et al.", the Order dated 10 December 2004 (Annex O of the Complaint) was issued by Presiding Judge Dionisio C. Sison which in part reads:

"Anent the plaintiff’s prayer for the issuance of a temporary restraining order included in the instant plaintiff’s motion, this Court, inasmuch as the defendants failed to appear in court or file an opposition thereto, is constrained to GRANT the said plaintiff’s prater, as it is GRANTED, in order to maintain STATUS QUO, and that allthe defendants, their agents, representatives or any person acting for and in behalf are hereby restrained/enjoined from further publishing, televising and/or broadcasting any matter subject of the Complaint in the instant case more specifically the imputation of vices and/or defects on plaintiff and its products."

Complainant alleged that the above-quoted Order was served on respondent by the Branch Sheriff on 13 December 2004. Respondent has not denied the issuance of the Order dated 10 December 2004 or his receipt of a copy thereof on 13 December 2004.

Despite his receipt of the Order dated 10 December 2004, and the clear directive therein addressed to him to desists [sic] from "further publishing, televising and/or broadcasting any matter subject of the Complaint in the instant case more specifically the imputation of vices and/or defects on plaintiff and its products", respondent in clear defiance of this Order came out with articles on








the prohibited subject matter in his column "Atty. Batas", 2004 in the December 16 and 17, 2004 issues of the tabloid "Balitang Bayan –Toro" (Annexes Q and Q-1 of the Complaint).

The above actuations of respondent are also in violation of Rule 13.03 of the Canon of Professional Responsibilitywhich reads: "A lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party."

II.

x x x x

In I.S. No. V.04-2917-2933, then pending before the Office of the City Prosecutor of Valenzuela City, respondent filed his "Entry of Appearance with Highly Urgent Motion to Elevate These Cases To the Department of Justice". In said pleading, respondent made the following statements:

x x x x

The above language employed by respondent undoubtedly casts aspersions on the integrity of the Office of the City Prosecutor and all the Prosecutors connected with said Office. Respondent clearly assailed the impartiality and fairness of the said Office in handling cases filed before it and did not even design to submit any evidence to substantiate said wild allegations. The use by respondent of the above-quoted language in his pleadings is manifestly violative of Canon 11 of the Code of Professional Responsibility which provides: "A lawyer [s]hall [o]bserve and [m]aintain [t]he [re]spect [d]ue [t]o [t]he [c]ourts [a]nd [t]o [j]udicial [o]fficers [a]nd [s]hould [i]nsist [o]n [s]imilar [c]onduct [b]y [o]thers."

III.

The "Kasunduan" entered into by the Spouses Cordero and herein complainant (Annex C of the Complaint) was admittedly prepared, witnessed and signed by herein respondent. …

x x x x

In its Order dated 16 August 2004, the Bureau of Food and Drugs recognized that the said "Kasunduan" was not contrary to law, morals, good customs, public order and policy, and this accordingly dismissed the complaint filed by the Spouses Cordero against herein complainant.

However, even after the execution of the "Kasunduan" and the consequent dismissal of the complaint of his clients against herein complainant, respondent inexplicably launched a media offensive intended to disparage and put to ridicule herein complainant. On record are the numerous articles of respondent published in 3 tabloids commencing from 31 August to 17 December 2004 (Annexes G to Q-1). As already above-stated, respondent continued to come out with these articles against complainant in his tabloid columns despite a temporary restraining order issued against him expressly prohibiting such actions. Respondent did not deny that he indeed wrote said articles and submitted them for publication in the tabloids.

Respondent claims that he was prompted by his sense of public service, that is, to expose the defects of complainant’s products to the consuming public. Complainant claims that there is a baser motive to the actions of respondent. Complainant avers that respondent retaliated for complainant’s failure to give in to respondent’s "request" that complainant advertise in the tabloids and television programs of respondent. Complainant’s explanation is more credible. Nevertheless, whatever the true motive of respondent for his barrage of articles against complainant does not detract from the fact that respondent consciously violated the spirit behind the "Kasunduan" which he himself prepared and signed and submitted to the BFAD for approval. Respondent was less than forthright when he prepared said "Kasunduan" and then turned around and proceeded to lambaste complainant for what was supposedly already settled in said agreement. Complainant would have been better of with the BFAD case proceeding as it could have defended itself against the charges of the Spouses Cordero. Complainant was helpless against the attacks of respondent, a media personality. The actuations of respondent constituted, to say the least, deceitful conduct contemplated under Rule 1.01 of Canon 1 of the Code of Professional Responsibility.36 (Underscoring supplied)

The IBP Board of Governors, by Resolution No. XVIII-2006-114 dated March 20, 2006, adopted the findings and recommendation of the Investigating Commissioner to suspend respondent from the practice of law for two years.Cases in Legal Ethics Bachelor of Laws 3A 107


The Court finds the findings/evaluation of the IBP well-taken.

The Court, once again, takes this occasion to emphasize the necessity for every lawyer to act and comport himself in a manner that promotes public confidence in the integrity of the legal profession,37 which confidence may be eroded by the irresponsible and improper conduct of a member of the bar.

By the above-recited acts, respondent violated Rule 1.01 of the Code of Professional Responsibility which mandates lawyers to refrain from engaging in unlawful, dishonest, immoral or deceitful conduct. For, as the IBP found, he engaged in deceitful conduct by, inter alia, taking advantage of the complaint against CDO to advance his interest – to obtain funds for his Batas Foundation and seek sponsorships and advertisements for the tabloids and his television program.

He also violated Rule 13.02 of the Code of Professional Responsibility, which mandates:

A lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party.

For despite the pendency of the civil case against him and the issuance of a status quo order restraining/enjoining further publishing, televising and broadcasting of any matter relative to the complaint of CDO, respondent continued with his attacks against complainant and its products. At the same time, respondent violated Canon 1 also of the Code of Professional Responsibility, which mandates lawyers to "uphold the Constitution, obey the laws of the land and promote respect for law and legal processes." For he defied said status quo order, despite his (respondent’s) oath as a member of the legal profession to "obey the laws as well as the legal orders of the duly constituted authorities."

Further, respondent violated Canon 8 and Rule 8.01 of the Code of Professional Responsibility which mandate, viz:

CANON 8 - A lawyer shall conduct himself with courtesy, fairness and candor toward his professional colleagues, and shall avoid harassing tactics against opposing counsel.

Rule 8.01 – A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper, by using intemperate language.

Apropos is the following reminder in Saberon v. Larong:38

To be sure, the adversarial nature of our legal system has tempted members of the bar to use strong language in pursuit of their duty to advance the interests of their clients.

However, while a lawyer is entitled to present his case with vigor and courage, such enthusiasm does not justify the use of offensive and abusive language. Language abounds with countless possibilities for one to be emphatic but respectful, convincing but not derogatory, illuminating but not offensive.1awphi1

On many occasions, the Court has reminded members of the Bar to abstain from all offensive personality and to advance no fact prejudicial to the honor and reputation of a party or witness, unless required by the justice of the cause with which he is charged. In keeping with the dignity of the legal profession, a lawyer’s language even in his pleadings must be dignified .39 (Underscoring supplied)

By failing to live up to his oath and to comply with the exacting standards of the legal profession, respondent alsoviolated Canon 7 of the Code of Professional Responsibility, which directs a lawyer to "at all times uphold the integrity and the dignity of the legal profession."401avvph!1

The power of the media to form or influence public opinion cannot be underestimated. In Dalisay v. Mauricio, Jr.,41the therein complainant engaged therein-herein respondent’s services as "she was impressed by the pro-poor and pro-justice advocacy of respondent, a media personality,"42 only to later find out that after he demanded and the therein complainant paid an exorbitant fee, no action was taken nor any pleadings prepared by him. Respondent was suspended for six months.

On reading the articles respondent published, not to mention listening to him over the radio and watching him on television, it cannot be gainsaid that the same could, to a certain extent, have affected the sales of complainant.Cases in Legal Ethics Bachelor of Laws 3A 108







Back to Dalisay, this Court, in denying therein-herein respondent’s motion for reconsideration, took note of the fact that respondent was motivated by vindictiveness when he filed falsification charges against the therein complainant.43

To the Court, suspension of respondent from the practice of law for three years is, in the premises, sufficient.

WHEREFORE, Atty. Melanio Mauricio is, for violation of the lawyer’s oath and breach of ethics of the legal profession as embodied in the Code of Professional Responsibility, SUSPENDED from the practice of law for three years 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 a copy of this Decision be attached to his personal record and copies furnished the Integrated Bar of the Philippines and the Office of the Court Administrator for dissemination to all courts.

SO ORDERED.



Manila

SECOND DIVISION

A.M. No. 1769 June 8, 1992

CESAR L. LANTORIA, complainant, vs.ATTY. IRINEO L. BUNYI, respondent.Cases in Legal Ethics Bachelor of Laws 3A 109


PER CURIAM:

This is an administrative complaint filed by Cesar L. Lantoria, seeking disciplinary action against respondent Irineo L. Bunyi, member of the Philippine Bar, on the ground that respondent Bunyi allegedly committed acts of "graft and corruption, dishonesty and conduct unbecoming of a member of the Integrated Bar of the Philippines, and corruption of the judge and bribery", in connection with respondent's handling of Civil Case Nos. 81, 83 and 88 then pending before the Municipal Court of Experanza, Agusan del Sur, presided over by Municipal Judge Vicente Galicia 1 in which respondent Bunyi was the counsel of one of the parties, namely, Mrs. Constancia Mascarinas.

Respondent Bunyi alleged that Mrs. Constancia M. Mascarinas of Manila was the owner of d farm located in Esperanza, Agusan del Sur, and that herein complainant Lantoria was the manager and supervisor of said farm, receiving as such a monthly allowance. 2 It appears that the complaint in Civil Case Nos. 81, 83 and 88 sought to eject the squatters from the aforementioned farm. 3 These cases were assigned to the Municipal Court of Esperanza, Agusan del Bur, the acting municipal judge of which was the Honorable Vicente Galicia (who was at the same time the regular judge of the municipal court of Bayugan, Agusan del Sur). 4 The defendants in the mentioned civil cases were, in due course, declared in default.

In relation to the same three (3) civil cases, the records of the present case show that complainant Lantoria wrote a letter to respondent Bunyi, dated 23 April 1974, which reads as follows:

Butuan City23 April 1974

Atty. Ireneo Bunye928 Rizal AvenueSanta Cruz, Manila

Dear Atty. Bunye:

xxx xxx xxx

Upon informing him of your willingness to prepare the corresponding judgements (sic) on the 3 defaulted cases he said he has no objection in fact he is happy and recommended that you mail the said decisions in due time thru me to be delivered to him.

xxx xxx xxx

I will communicate with you from time to time for any future development.

My best regards to you and family and to Mrs. Constancia Mascarinas and all.

Very truly yours,

(SGD.) CESAR L LANTORIAMajor Inf PC (ret)Executive Director 5

On 01 June 1974, respondent Bunyi wrote to the complainant regarding the said three (3) cases, in this wise:

June 1, 1974

Dear Major Lantoria,


At last, I may say that I have tried my best to respond to the call in your several letters received, which is about the preparation of the three (3) Decisions awaited by Judge Galicia. The delay is that I have been too much occupied with my cases and other professional commitments here in Manila and nearby provinces. Not only to Mrs. Mascarinas I would say that I am so sorry but also to you. Mrs. Mascarinas has been reminding me but I always find myself at a loss to prepare these Decisions at an early date sa (sic) possible. So also with my calendar as to the dates for the next hearing of the remaining cases over there.

Herewith now, you will find enclosed the three (3) Decisions against the (3) defaulted defendants. I am not sure if they will suit to satisfy Judge Galicia to sign them at once. However, it is my request to Judge Galicia, thru your kind mediation, that if the preparation of these Decisions do not suit his consideration, then I am ready and willing to accept his suggestions or correction to charge or modify them for the better. And to this effect, kindly relay at once what he is going to say or thinks if he signs them readily and please request for each copy for our hold.

xxx xxx xxx

Please excuse this delay, and thanks for your kind assistance in attending to our cases there. Regards to you and family and prayer for your more vigor and success.

Brotherly yours,

(SGD.) IRINEO L. BUNYI6

Counsel

It also appears that respondent Bunyi wrote an earlier letter to complainant Lantoria, dated 04 March 1974, the contents of which read as follows:

928 Rizal Ave., Sta. Cruz, ManilaMarch 4, 1974

Dear Major Lantoria,

This is an additional request, strictly personal and confidential. Inside the envelope addressed to Judge Vicente C. Galicia, are the Decisions and Orders, which he told me to prepare and he is going to sign them. If you please, deliver the envelope to him as if you have no knowledge and information and that you have not opened it. Unless, of course, if the information comes from him. But, you can inquire from him if there is a need to wait from his words about them, or copies to be furnished me, after he signs them, it could be made thru you personally, to expedite receiving those copies for our hold. According to him, this envelope could be delivered to him at his residence at No. 345 M. Calo St., Butuan City, during week end. or, at Bayugan if you happen to go there, if he is not in Butuan City.

Thanking You for your kind attention and favor.

Truly yours,

(SGD.) L. BUNYI 7

Three years after, that is, on 11 April 1977, complainant filed with this Court the present administrative case against respondent Bunyi, predicated mainly on the above-quoted three (3) letters dated 04 March, 23 April and 01 June, 1974. Complainant contends that respondent won the said three (3) cases because to (respondent) was the one who unethically prepared the decisions rendered therein, and that the preparation by respondent of said decisions warranted disciplinary action against him.

By way of answer to the complaint, respondent, in a motion to dismiss 8 the administrative complaint, admitted the existence of the letter of 01 June 1974, but explained the contents thereof as follows:


xxx xxx xxx

b) In the second place, the said letter of June 1, 1974, is self-explanatory and speaks for itself, that if ever the same was written by the Respondent, it was due to the insistence of the Complainant thru his several letters received, that the decisions in question be drafted or prepared for Judge Galicia, who considered such preparation as a big help to him, because he was at that time holding two (2) salas — one as being the regular Municipal Judge of Bayugan and the other, as the acting Judge of Esperanza, both of Agusan del Sur, with many pending cases and it was to the benefit of the Complainant that the early disposition of the cases involved would not suffer inconsiderable delay. But, the intention to draft or prepare the decisions in question was never spawned by the Respondent. Instead, it came from the under-standing between the Judge and the complainant who, from his several letters, had demonstrated so much interest to eject at once the squatters from the farm he was entrusted to manage. Furthermore, the Complainant's conclusion that the said decisions were lutong macao is purely non-sense as it is without any factual or legal basis. He himself knew that Judge Galicia asked for help in the drafting of said decisions as at any rate they were judgments by default, the defendants lost their standing in court when they were declared in default for failure to file their answers and to appear at the place and time set for hearing thereof (See first paragraph, letter of June 1, 1974)

c) Thirdly, in the same letter, the decisions as prepared were in the form of drafts, as in fact, the letter mentioned subject to suggestion or correction to change or modify for the better by Judge Galicia (Second paragraph, Ibid);

d) Fourthly, in the some letter, Responding (sic) even apologized for the delay in sending the same to the Complainant and expressed his gratitude for his assistance in attending to the cases involved (Last paragraph, Ibid.)

In its resolution dated 28 November 1977, this Court referred the case to the Solicitor General for investigation, report and recommendation. 9 On 21 July 1980, the Solicitor General submitted his report to the Court, with the following averments, to wit: 1) that the case was set for hearing on April 12, September 29, and December 18, 1978, but in all said scheduled hearings only respondent Bunyi appeared; 2) that in the hearing of 16 January 1979, both respondent and complainant appeared; 3) that at the same hearing, the Solicitor General reported the following development —

Atty. Mercado submitted a letter of complainant dated January 16, 1979 sworn to before the investigating Solicitor, praying that the complaint be considered withdrawn, dropped or dismissed on the ground that complainant "could hardly substantiate" his charges and that he is "no longer interested to prosecute" the same. For his part, respondent manifested that he has no objection to the withdrawal of the complaint against him. At the same time, he presented complainant Lantoria as a witness are elicited testimony to the effect that complainant no longer has in his possession the original of the letters attached to his basic complaint, and hence, he was not prepared to prove his charges. 10 (emphasis supplied)

In his aforesaid report, the Solicitor General found as follows: a) that the letters of respondent Bunyi (dated 4, March and 1 June 1974), addressed to complainant, showed that respondent had indeed prepared the draft of the decisions in Civil Case Nos. 81, 83 and 88 of the Municipal Court of Esperanza, Agusan del Sur, which he submitted to Judge Vicente Galicia thru the complainant; b) that those letters indicated that respondent had previous communications with Judge Galicia regarding the preparation of the decisions; c) that the testimony of complainant to the effect that he had lost the original of said letters, and complainant's withdrawal of the complaint in the case at bar are of no moment, as respondent Bunyi, and his motion to dismiss filed with the Supreme Court, admitted that he prepared the draft of the decisions in the said civil cases, and be affirmed the existence of the letters.

Hence, in his report, the Solicitor General found that respondent is guilty of highly unethical and unprofessional conduct for failure to perform his duty, as an officer of the court, to help promote the independence of the judiciary and to refrain from engaging in acts which would influence judicial determination of a litigation in which he is counsel. 11 The Solicitor General recommended that respondent be suspended from the practice of law for a period of one (1) year. He filed with the Court the corresponding complaint against respondent.

In his answer 12 to the complaint filed by the Solicitor General, respondent manifested that in the future he would be more careful in observing his duties as a lawyer, and in upholding the provisions of the canons of professional ethics.


On 10 December 1980, the date set by this Court for the hearing of this case, the hearing was postponed until further notice. On 9 March 1981, respondent filed a manifestation 13 alleging that no hearing was as yet set in the case since the last setting on 10 December 1980, and he requested that the next hearing be not set until after six (6) months when be expected to return from the United States of America where he would visit his children and at the same time have a medical check-up.

On 28 October 1981, the date set by this Court for bearing in this case, respondent Bunyi and the Solicitor General appeared, and respondent was directed to submit his memorandum. Respondent Bunyi filed his memorandum on 16 November 1981. In said memorandum, 14 respondent submitted that although he prepared the draft of the decisions in the civil cases, he did not offer Judge Galicia any gift or consideration to influence the Judge in allowing him to prepare the draft decisions. 15 He also offered his apology to the Court for all the improprieties which may have resulted from his preparation of the draft decisions.

We agree with the observation of the Solicitor General that the determination of the merits of the instant case should proceed notwithstanding complainant's withdrawal of his complaint in the case, the respondent himself having admitted that the letters in question truly exist, and that he even asked for an apology from the Court, for whatever effects such letters may have had on his duty as a lawyer.

With the admission by respondent of the existence of the letters upon which the present administrative complaint is based, the remaining issue to be resolved is the effect of the acts complained of on respondent's duty both as a lawyer and an officer of the Court.

We find merit in the recommendation of the Solicitor General that respondent, by way of disciplinary action, deserves suspension from the practice of law.

The subject letters indeed indicate that respondent had previous communication with Judge Galicia regarding the preparation of the draft decisions in Civil Case Nos. 81, 83, and 88, and which he in fact prepared. Although nothing in the records would show that respondent got the trial court judge's consent to the said preparation for a favor or consideration, the acts of respondent nevertheless amount to conduct unbecoming of a lawyer and an officer of the Court.

Clearly, respondent violated Canon No. 3 of the Canons of Professional Ethics (which were enforced at the time respondent committed the acts admitted by him), which provides as follows:

3. Attempts to exert personal influence on the court

Marked attention and unusual hospitality on the part of a lawyer to a judge, uncalled for by the personal relations of the parties, subject both the judge and the lawyer to misconstructions of motive and should be avoided. A lawyer should not communicate or argue privately with the judge as to the merits of a pending cause and deserves rebuke and denunciation for any device or attempt to gain from a judge special personal consideration or favor. A self-respecting independence in the discharge of professional duty, without denial or diminution of the courtesy and respect due the judge's station, is the only proper foundation for cordial personal and official relations between bench and bar.

In the new Code of Professional Responsibility 16 a lawyer's attempt to influence the court is rebuked, as shown in Canon No. 13 and Rule 13.01, which read:

CANON 13 — A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court.

Rule 13.01 — A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for, cultivating familiarity with judges.

Therefore, this Court finds respondent guilty of unethical practice in attempting to influence the court where he had pending civil case. 17

WHEREFORE, respondent Atty. Irineo L. Bunyi is hereby SUSPENDED from the practice of law for a period of one (1) year from the date of notice hereof. Let this decision be entered in the bar records of the respondent and the Court Administrator is directed to inform the different courts of this suspension.Cases in Legal Ethics Bachelor of Laws 3A 113

SO ORDERED.



Baguio City

FIRST DIVISION

A.C. No. 3455 April 14, 1998


ARSENIO A. VILLAFUERTE, complainant, vs.ATTY. DANTE H. CORTEZ, respondent.

R E S O L U T I O N

VITUG, J.:

Feeling aggrieved by what he perceives to be a neglect in the handling of his case by respondent lawyer, despite the latter's receipt of P1,750.00 acceptance and retainer fees, complainant Arsenio A. Villafuerte seeks, in the instant proceedings, the disbarment of Atty. Dante H. Cortez.

From the records of the case and the Report submitted by the Commission on Bar Discipline ("CBD) of the Integrated Bar of the Philippines ("IBP), it would appear that sometime in January 1987, complainant, upon the referral of Atty. Rene A.V. Saguisag, went to the office of respondent lawyer to discuss his case for "reconveyance" (Civil Case No. 83-18877). During their initial meeting, complainant tried to reconstruct before respondent lawyer the incidents of the case merely from memory prompting the letter to ask complainant to instead return at another time with the records of the case. On 30 January 1987, complainant again saw respondent but still sans the records. Complainant requested respondent to accept the case, paying to the latter the sum of P1,750.00 representing the acceptance fee of P1,500.00 and P250.00 retainer fee for January 1987. Respondent averred that he accepted the money with much reluctance and only upon the condition that complainant would get the records of the case from, as well as secure the withdrawal of appearance of, Atty. Jose Dizon, the former counsel of complainant. Allegedly, complainant never showed up thereafter until November 1989 when he went to the office of respondent lawyer but only to leave a copy of a writ of execution in Civil Case No. 062160-CV, a case for ejectment, which, according to respondent, was never priorly mentioned to him by complainant. Indeed, said respondent, he had never entered his appearance in the aforenumbered case.

In its report, IBP-CBD concluded that the facts established would just the same indicate sufficiently a case of neglect of duty on the part of respondent. The CBD rejected the excuse proffered by respondent that the non-receipt of the records of the case justified his failure to represent complainant. The IBP-CBD, through Commissioner Julio C. Elamparo, recommended to the IBP Board of Governors the suspension of respondent from the practice of law for three months with a warning that a repetition of similar acts could be dealt with more severely than a mere 3-month suspension.

On 30 August 1996, the IBP Board of Governors passed Resolution No. XII-96-191 which —

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 fully supported by the evidence on record and the applicable laws and rules, Respondent Atty. Dante Cortez is hereby SUSPENDED from the practice of law for three (3) months with a warning that a repetition of the acts/omission complained of will be dealt with more severely. 1

Both respondent lawyer and complainant filed with the IBP-CBD their respective motions for the reconsideration of the foregoing resolution.

On 23 August 1997, the Board of Governors passed Resolution No. XII-97-66 that —

RESOLVE to CONFIRM Resolution No. XII-96-191 of the Board of Governors Meeting dated August 30, 1996 SUSPENDING Atty. Dante Cortez from the practice of law for three (3) months with a warning that a repetition of the acts/omission complained of will be dealt with more severely. 2

The Court agrees with the IBP-CBD in its findings and conclusion that respondent lawyer has somehow been remiss in his responsibilities.

The Court is convinced that a lawyer-client relationship, given the circumstances, has arisen between respondent and complainant. Respondent lawyer has admitted having received the amount of P1,750.00, including its nature and purpose, from complainant. His acceptance of the payment effectively bars him from altogether disclaiming the existence of an attorney-client relationship between Cases in Legal Ethics Bachelor of Laws 3A 115

them. It would not matter really whether the money has been intended to pertain only to Civil Case No. 83-18877 or to include Civil Case No. 062160-CV, there being no showing, in any event, that respondent lawyer has attended to either of said cases. It would seem that he hardly has exerted any effort to find out what might have happened to his client's cases. A lawyer's fidelity to the cause of his client requires him to be ever mindful of the responsibilities that should be expected of him. 3 He is mandated to exert his best efforts to protect, within the bounds of the law, the interests of his client. The Code of Professional Responsibility cannot be any clearer in its dictum than when it has stated that a "lawyer shall serve his client with competence and diligence," 4 decreeing further that he "shall not neglect a legal matter entrusted to him." 5

Complainant, nevertheless, is not entirely without fault himself. He cannot expect his case to properly and intelligently handled without listening to his own counsel and extending full cooperation to him. It is not right for complainant to wait for almost two years and to deal with his lawyer only after receiving an adverse decision.

All considered, the Court deems it proper to reduce the recommended period of suspension of the IBP from three months to one month.

WHEREFORE, Atty. Dante H. Cortez is hereby SUSPENDED from the practice of law for a period of one month from notice hereof, with a warning that a repetition of similar acts and other administrative lapses will be dealt with more severely than presently.

Let a copy of this Resolution be made a part of the personal records of respondent lawyer in the Office of the Bar Confidant, Supreme Court of the Philippines, and let copies thereof be furnished to the Integrated Bar of the Philippines and be circulated to all courts.

SO ORDERED.



Manila

THIRD DIVISION

A.C. No. 6155 March 14, 2006


MA. GINA L. FRANCISCO, JOSEPHINE S. TAN and CARLOS M. JOAQUIN, Complainants, vs.ATTY. JAIME JUANITO P. PORTUGAL, Respondent.

D E C I S I O N

TINGA, J.:

Complainants filed before this Court an affidavit-complaint1 on 15 August 2003 against Atty. Jaime Juanito P. Portugal (respondent) for violation of the Lawyer’s Oath, gross misconduct, and gross negligence. Complainants are related to petitioners in G.R. No. 152621-23 entitled SPO1 Ernest C. Francisco, SPO1 Donato F. Tan and PO3 Rolando M. Joaquin v. People of the Philippines, in whose behalf respondent filed the Petition for Review on Certiorari (Ad Cautelam) in the case.

The complaint against respondent originated from his alleged mishandling of the above-mentioned petition which eventually led to its denial with finality by this Court to the prejudice of petitioners therein.

The facts are as follows:

On 21 March 1994, SPO1 Ernesto C. Francisco, SPO1 Donato F. Tan and PO3 Rolando M. Joaquin (eventually petitioners in G.R. No. 152621-23, collectively referred to herein as the accused) were involved in a shooting incident which resulted in the death of two individuals and the serious injury of another. As a result, Informations were filed against them before the Sandiganbayan for murder and frustrated murder. The accused pleaded not guilty and trial ensued. After due trial, the Sandiganbayan2 found the accused guilty of two counts of homicide and one count of attempted homicide.

At that juncture, complainants engaged the services of herein respondent for the accused. Respondent then filed a Motion for Reconsideration with the Sandiganbayan but it was denied in a Resolution dated 21 August 2001. Unfazed by the denial, respondent filed an Urgent Motion for Leave to File Second Motion for Reconsideration, with the attached Second Motion for Reconsideration.3 Pending resolution by the Sandiganbayan, respondent also filed with this Court a Petition for Review on Certiorari (Ad Cautelam) on 3 May 2002.

Thereafter, complainants never heard from respondent again despite the frequent telephone calls they made to his office. When respondent did not return their phone inquiries, complainants went to respondent’s last known address only to find out that he had moved out without any forwarding address.

More than a year after the petition was filed, complainants were constrained to personally verify the status of thead cautelam petition as they had neither news from respondent about the case nor knowledge of his whereabouts. They were shocked to discover that the Court had already issued a Resolution4 dated 3 July 2002, denying the petition for late filing and non-payment of docket fees.

Complainants also learned that the said Resolution had attained finality and warrants of arrest5 had already been issued against the accused because respondent, whose whereabouts remained unknown, did nothing to prevent the reglementary period for seeking reconsideration from lapsing.

In his Comment,6 respondent states that it is of vital significance that the Court notes that he was not the original counsel of the accused. He only met the accused during the promulgation of the Sandiganbayan decision convicting the accused of two counts of homicide and one count of attempted homicide. He was merely requested by the original counsel to be on hand, assist the accused, and be present at the promulgation of the Sandiganbayan decision.

Respondent claims that there was no formal engagement undertaken by the parties. But only because of his sincere effort and in true spirit of the Lawyer’s Oath did he file the Motion for Reconsideration. Though admitting its highly irregular character, respondent also made informal but urgent and personal representation with the members of the Division of the Sandiganbayan who promulgated the decision of conviction. He asserts that because of all the efforts he put into the case of the accused, his other professional obligations were neglected and that all these were done without proper and adequate remuneration.

As to the ad cautelam petition, respondent maintains that it was filed on time. He stresses that the last day of filing of the petition was on 3 April 2002 and on that very day, he filed with this Court a Motion for Extension of Time to File Petition for Review, 7 seeking Cases in Legal Ethics Bachelor of Laws 3A 117

http://www.lawphil.net/judjuris/juri2006/mar2006/ac_6155_2006.html#fnt7







an additional thirty (30) days to file the petition. Subsequently, on 3 May 2002, he filed the petition by registered mail and paid the corresponding docket fees. Hence, so he concludes, it was filed within the reglementary period.

Soon thereafter, respondent recounted all the "herculean" efforts he made in assisting the accused for almost a year after the promulgation of the Sandiganbayan decision. He considered the fact that it was a case he had just inherited from the original counsel; the effect of his handling the case on his other equally important professional obligations; the lack of adequate financial consideration for handling the case; and his plans to travel to the United States to explore further professional opportunities. He then decided to formally withdraw as counsel for the accused. He wrote a letter to PO3 Rolando Joaquin (PO3 Joaquin), who served as the contact person between respondent and complainants, explaining his decision to withdraw as their counsel, and attaching the Notice to Withdraw which respondent instructed the accused to sign and file with the Court. He sent the letter through registered mail but unfortunately, he could not locate the registry receipt issued for the letter.

Respondent states that he has asked the accused that he be discharged from the case and endorsed the Notice of Withdrawal to PO3 Joaquin for the latter to file with the Court. Unfortunately, PO3 Joaquin did not do so, as he was keenly aware that it would be difficult to find a new counsel who would be as equally accommodating as respondent. Respondent suggests this might have been the reason for the several calls complainants made to his office.

On 9 February 2004, the Court resolved to refer the matter to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.1awph!l.net

The case was assigned to Investigating Commissioner Leland R. Villadolid, Jr. (Commissioner Villadolid) who sent notices of hearing to the parties but of the three complainants, only complainant Carlos Joaquin appeared. Thus, in the mandatory conference held, the other two complainants were declared as having waived their rights to further participate in the IBP proceedings.8

The parties were directed to file their respective position papers and on 27 May 2005, Commissioner Villadolid submitted his Report and Recommendation finding respondent guilty of violation of the Code of Professional Responsibility9 and recommended the imposition of penalty ranging from reprimand to suspension of six (6) months.1awph!l.net10 On 12 November 2005, the Board of Directors of the IBP resolved to adopt and approve Commissioner Villadolid’s recommendation to find respondent guilty and specifically to recommend his suspension for six (6) months as penalty.

The only issue to be resolved in the case at bar is, considering all the facts presented, whether respondent committed gross negligence or misconduct in handling G.R. No. 152621-23, which eventually led to the ad cautelam petition’s dismissal with finality.

After careful consideration of the records of the case, the Court finds the suspension recommended by the IBP proper.

In a criminal case like that handled by respondent in behalf of the accused, respondent has a higher duty to be circumspect in defending the accused for it is not only the property of the accused which stands to be lost but more importantly, their right to their life and liberty. As held in Regala v. Sandiganbayan:11

Thus, in the creation of lawyer-client relationship, there are rules, ethical conduct and duties that breathe life into it, among those, the fiduciary duty to his client which is of very delicate, exacting and confidential character, requiring a very high degree of fidelity and good faith, that is required by reason of necessity and public interest x x x .

It is also the strict sense of fidelity of a lawyer to his client that distinguishes him from any other profession in society. x x x12

At the onset, the Court takes notice that the ad cautelam petition was actually filed out of time. Though respondent filed with the Sandiganbayan an Urgent Motion for Leave to File Second Motion for Reconsideration with the attached Second Motion for Reconsideration, he should have known that a second motion for reconsideration is a prohibited pleading13 and it rests on the sound discretion of the Sandiganbayan to admit it or not. Thus, in effect, the motion did not toll the reglementary period to appeal. Having failed to do so, the accused had already lost their right to appeal long before respondent filed his motion for extension. Therefore, respondent cannot now say he filed the ad cautelam petition on time. Also important to note is the allegation of complainants that the Sandiganbayan denied the second motion for reconsideration in its Resolution dated 7 February 2002. This respondent does not dispute.

As to respondent’s conduct in dealing with the accused and complainants, he definitely fell short of the high standard of assiduousness that a counsel must perform to safeguard the rights of his clients. As aptly observed by Commissioner Villadolid,








respondent had not been quite candid in his dealings with the accused or complainants. The Court notes that though respondent represented to the accused that he had changed his office address, still, from the examination of the pleadings 14 he filed, it can be gleaned that all of the pleadings have the same mailing address as that known to complainants. Presumably, at some point, respondent’s office would have received the Court’s Resolution dismissing the petition. Of course, the prudent step to take in that situation was to at least inform the client of the adverse resolution since they had constantly called respondent’s office to check the status of the case. Even when he knew that complainants had been calling his office, he opted not to return their calls.

Respondent professed an inkling that the several phone calls of complainants may have been about the letter he sent PO3 Joaquin regarding his desire to be discharged as counsel of the case. However, though aware of such likelihood, respondent still did not return their calls. Had he done so, he and complainants could have threshed out all unresolved matters between them.

Had respondent truly intended to withdraw his appearance for the accused, he as a lawyer who is presumably steeped in court procedures and practices, should have filed the notice of withdrawal himself instead of the accused. At the very least, he should have informed this Court through the appropriate manifestation that he had already given instructions to his clients on the proper way to go about the filing of the Notice of Withdrawal, as suggested by Commissioner Villadolid. In not so doing, he was negligent in handling the case of the accused.

Certainly, respondent ought to know that he was the one who should have filed the Notice to Withdraw and not the accused. His tale that he sent a registered letter to the accused and gave them instructions on how to go about respondent’s withdrawal from the case defies credulity. It should have been respondent who undertook the appropriate measures for the proper withdrawal of his representation. He should not have relied on his client to do it for him if such was truly the case. Without the presentation of the alleged registry receipt (or the return card, which confirms the receipt of the mail by the recipient) of the letter he allegedly sent to PO3 Joaquin, the Court cannot lend credence to respondent’s naked claim, especially so that complainants have been resolute in their stand that they did not hear from respondent after the latter had filed the ad cautelam petition. He could relieve himself of his responsibility as counsel only first by securing the written conformity of the accused and filing it with the court pursuant to Rule 138, Section 26 of the Rules of Court.15

The rule in this jurisdiction is that a client has the absolute right to terminate the attorney-client relation at anytime with or without cause. The right of an attorney to withdraw or terminate the relation other than for sufficient cause is, however, considerably restricted. Among the fundamental rules of ethics is the principle that an attorney who undertakes to conduct an action impliedly stipulates to carry it to its conclusion. He is not at liberty to abandon it without reasonable cause. A lawyer’s right to withdraw from a case before its final adjudication arises only from the client’s written consent or from a good cause.16

We agree with Commissioner Villadolid that the dismissal of the ad cautelam petition was primarily due to the gross negligence of respondent. The Court has stressed in Aromin v. Boncavil17 that:

Once he agrees to take up the cause of the client, the lawyer owes fidelity to such cause and must always be mindful of the trust and confidence reposed in him. He must serve the client with competence and diligence, and champion the latter’s cause with wholehearted fidelity, care, and devotion. Elsewise stated, he owes entire devotion to the interest of the client, warm zeal in the maintenance and defense of his client’s rights, and the exertion of the 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. This simply means that 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. If much is demanded from an attorney, it is because the entrusted privilege to practice law carries with it the correlative duties not only to the client but also to the court, to the bar, and to the public. A lawyer who performs his duty with diligence and candor not only protects the interest of his client; he also serves the ends of justice, does honor to the bar, and helps maintain the respect of the community to the legal profession.18

Respondent has time and again stated that he did all the endeavors he enumerated without adequate or proper remuneration. However, complainants have sufficiently disputed such claim when they attached in their position paper filed before the IBP a machine validated deposit slip in the amount of P15,500.00 for the Metro Bank savings account of one Jaime Portugal with account number 7186509273.19 Respondent has neither admitted nor denied having claimed the deposited amount.

The Court also rejects respondent’s claim that there was no formal engagement between the parties and that he made all his efforts for the case without adequate and proper consideration. In the words of then Justice Panganiban (presently Chief Justice) in Burbe v. Atty. Magulta:20









After agreeing to take up the cause of a client, a lawyer owes fidelity to both cause and client, even if the client never paid any fee for the attorney-client relationship. Lawyering is not a business; it is a profession in which duty of public service, not money, is the primary consideration.21

Also to the point is another case where this Court ruled, thus:

A written contract 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. x x x 22

Hence, even if respondent felt under-compensated in the case he undertook to defend, his obligation embodied in the Lawyer’s Oath and the Code of Professional Responsibility still remains unwavering. The zeal and the degree of fervor in handling the case should neither diminish nor cease just because of his perceived insufficiency of remuneration.

Lastly, the Court does not appreciate the offensive appellation respondent called the shooting incident that the accused was engaged in. He described the incident, thus: "the accused police officers who had been convicted of [h]omicide for the ‘salvage’ of Froilan G. Cabiling and Jose M. Chua and [a]ttempted [h]omicide of Mario C. Macato."23 Rule 14.0124 of the Code of Professional Responsibility clearly directs lawyers not to discriminate clients as to their belief of the guilt of the latter. It is ironic that it is the defense counsel that actually branded his own clients as being the culprits that "salvaged" the victims. Though he might think of his clients as that, still it is unprofessional to be labeling an event as such when even the Sandiganbayan had not done so.

The IBP Board of Governors recommended the suspension of respondent for six (6) months, the most severe penalty recommended by Commissioner Villadolid, but did not explain why such penalty was justified. In a fairly recent case where the lawyer failed to file an appeal brief which resulted to the dismissal of the appeal of his client in the Court of Appeals, the Court imposed upon the erring lawyer the penalty of three (3) months’ suspension.25The Court finds it fit to impose the same in the case at bar.

WHEREFORE, premises considered, respondent is hereby SUSPENDED from the practice of law for three (3) months. Let a copy of the Resolution be furnished the Bar Confidant for appropriate annotation in the record of respondent.

SO ORDERED.



Manila

SECOND DIVISION

A.C. No. 5925 March 11, 2003(Formerly CBD No. 01-912)







RUBY MAE BARNACHEA, complainant, vs.ATTY. EDWIN T. QUIOCHO, respondent.

R E S O L U T I O N

CALLEJO, SR., J.:

On January 3, 2002, Ruby Mae Barnachea filed a verified complaint for breach of lawyer-client relations against respondent Atty. Edwin T. Quiocho.

It appears that respondent had not been in the private practice of the law for quite some time. However, in September 2001, he decided to revive his legal practice with some associates. Complainant engaged the legal services of respondent for the latter to cause the transfer under her name of the title over a property covered by Transfer Certificate of Title No. 334411 previously owned by her sister, Lutgarda Amor D. Barnachea. The latter sold said property to complainant under an unnotarized deed of absolute sale. Complainant drew and issued BPI Family Bank Check No. 0052304 in the amount of P11,280.00 and BPI Family Bank Check No. 0052305 in the amount of P30,000.00, both dated September 5, 2001, or the total amount of P41,280.00 for the expenses for said transfer and in payment for respondent’s legal services. Respondent enchased the checks.

However, despite the lapse of almost two months, respondent failed to secure title over the property in favor of complainant. The latter demanded that respondent refund to her the amount of P41,280.00 and return the documents which she earlier entrusted to him. However, respondent failed to comply with said demands. On November 1, 2001, complainant received a letter from respondent informing her that he had failed to cause the transfer of the property under her name and that he was returning the documents and title she had entrusted to him and refunding to her the amount of P41,280.00 through his personal check No. DIL 0317787. Said check was drawn against his account with the Bank of Commerce (Diliman Branch) in the amount of P41,280.00 and was postdated December 1, 2001. Respondent told complainant that he needed more time to fund the check. However, respondent failed to fund the check despite the demands of complainant.

In his Answer to the complaint, respondent denied that complainant contracted his legal services. Although respondent admitted having received the two checks from complainant, he claimed that said checks were intended to cover actual and incidental expenses for transportation, communication, representation, necessary services, taxes and fees for the cancellation and transfer of TCT No. 334411 under the name of complainant and not for legal services. He asserted that he acted in good faith as shown by the fact of his return of complainant’s documents with an explanatory letter and his issuance of a personal check for P41,280.00 dated December 1, 2001. He insisted that he would not compromise for such meager amount his personal standing as well as his membership in the legal profession. His failure to transfer the title of the property under the name of the complainant was caused by his difficulty in making good the claimed amount, compounded by his affliction with diabetes and the consequent loss of sight of his right eye.

Respondent further alleged that he was a licensed real estate and insurance broker and had been a freelance business management consultant. At the same time he engaged in real estate brokering, pre-need products marketing for Prudential Life, and life insurance underwriting for Insular Life. In 1999, he gave up the practice of his profession as a lawyer and subsequently managed to put up a business center with fellow insurance underwriters for their common insurance underwriting practice. He further claimed that sometime in August, 2001, an insurance client introduced complainant as an insurance prospect to him. In the course of their dealing, complainant intimated to respondent her willingness to consider respondent’s insurance proposal provided the latter would help her facilitate the cancellation and eventual transfer to her name the property covered by TCT No. 334411 in the name of complainant’s sister, Lutgarda Amor D. Barnachea. Respondent agreed to help complainant in the transfer of the title to her name, with the condition that no diligent study or verification of complainant’s documents, nor preparation of any additional document or any application or petition whatsoever, will be made by respondent. He explained to complainant that his task was merely to go through the regular process of presenting the available documents, paying the taxes and fees, and following up the processing for the cancellation and issuance of the certificate of title. In other words, respondent offered to complainant services which a non-lawyer familiar with the procedure and the related offices can perform and provide to the complainant with respect to the transfer of the title of the property in her name.

Respondent asserted that in the latter part of September 2001, he discovered and became aware for the first time that the original copy of TCT No. 334411 with the Register of Deeds of Quezon City was destroyed in a fire in Quezon City Hall several years earlier and that complainant’s copy of the title needed to be reconstituted before it can be cancelled and transferred. At about the same time, the working relations of respondent in the business center with his non-lawyer associates had become difficult and strained, Cases in Legal Ethics Bachelor of Laws 3A 121

impelling him to sever his business relations with them and cease from to going to the business center. Consequently, telephone communications between respondent and complainant at the business center was cut. Communications became much more limited when, apart from the fact that respondent did not have a landline at his residence, respondent’s mobile phone was stolen sometime in October 2001.

The Integrated Bar of the Philippines (IBP) designated Atty. Dennis B. Funa as Commissioner to conduct a formal investigation of the complaint. Despite several settings, respondent failed to appear and adduce evidence.

On April 26, 2002, Investigating Commissioner Dennis B. Funa submitted his report and recommendation stating in part that:

1. Respondent is not able to meet his financial obligations due to financial difficulties, and that respondent is in good faith in his failure to meet this obligation.

2. It is recommended that respondent be ORDERED TO REPAY HIS CLIENT within ninety (90) days from receipt of this Decision. The principal amount being P41,280.00. Failure to comply with the Order shall be considered as proof of evident bad faith, and shall be considered in the continuing evaluation of the case in view of the continued failure to repay his client.

3. Respondent should also be given a WARNING that a repetition shall be dealt with more severely.1

The Investigating Commissioner gave credence to the claim of complainant that she engaged the legal services of respondent and paid him for his services and that respondent failed in his undertaking and refund the amount of P41,280.00 to complainant despite her demands and that respondent appeared to be evading the complainant.

On October 19, 2002, the IBP Board of Governors passed Resolution No. XV-2002-550 adopting and approving the Investigating Commissioner’s recommendation with the additional sanction of reprimand for respondent:

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, with modification. Respondent is hereby reprimanded and ordered to return the Forty One Thousand Two Hundred Eighty (P41,280.00) Pesos to complainant within ninety (90) days from receipt of notice.2

While the Court agrees with the Board of Governors that respondent should be meted a disciplinary sanction, it finds that the penalty of reprimand recommended by the Board of Governors is not commensurate to the gravity of the wrong committed by respondent. As found by the Investigating Commissioner, the complainant engaged the legal services of the respondent. As admitted in his letter to the complainant, respondent had just resumed his private practice of law two months before complainant contracted his services for the notarization of the Deed of Absolute Sale, the registration thereof with the Register of Deeds and the transfer of the title over the property to the complainant:

NOVEMBER 1, 2002

DEAR RUBY,

I AM SORRY I AM RETURNING YOUR DOCUMENTS WITHOUT CHANGES.

I HAD A SERIES OF MONEY PROBLEMS RIGHT AFTER YOU GAVE ME THE TWO CHECKS AND COMING WITH THE AMOUNTS WITH PERSONAL FUNDS.

I WAS REVIVING MY LEGAL PRACTICE ONLY FOR TWO MONTHS WHICH WE MET AND HAD JUST SET UP THE OFFICE WITH TWO ASSOCIATES WHICH A FEW WEEKS LATER WE HAD DISAGREEMENTS AND DECIDED TO DISBAND. I WILL HAVE TO REFURBISH MY OFFICE. I AM ISSUING MY PERSONAL CHECK TO GUARANTEE THE AMOUNT I TOOK. I NEED A LITTLE TIME TO COVER THE AMOUNT. THANKS FOR YOUR UNDERSTANDING.

(Sgd.) EDWIN.3


Respondent’s claim that complainant did not retain his legal services flies in the face of his letter to complainant. 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 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.4

In this case, respondent failed to comply with his undertaking for almost two months. Worse, despite demands of complainant, he failed to refund the amount of P41,280.00 and to return to complainant the deed of absolute sale and title over the property. Respondent’s claim that complainant could not contact him because he did not have any landline at his residence and that his mobile phone was stolen in October 2001, is hard to believe. He failed to adduce a morsel of evidence to prove that his telephone at the business center was cut or that his mobile phone had been stolen. Even then, respondent could have easily contacted the complainant at her residence or could have written her a letter informing her that the original copy of TCT No. 324411 in the custody of the Register of Deeds was burned when the Quezon City Hall was gutted by fire and that there was a need for the reconstitution of said title. Neither did respondent adduce evidence that he was a life insurance underwriter for Insular Life or that he had been sick with diabetes and had lost his sight in his right eye. Respondent simply refused to adduce evidence to prove his allegations in his Answer to the complaint.

The Court is led to believe that respondent’s failure to cause the transfer of the title of the property under the name of complainant was due to a financial problem that beset him shortly after he received the checks from complainant. It can easily be inferred from respondent’s letter that he used complainant’s money to alleviate if not solve his financial woes. What compounded respondent’s unethical conduct was his drawing of a personal check and delivering the same to complainant without sufficient funds in his bank account to cover the check. Even as he promised to fund his account with the drawee bank, respondent failed to do so when the check became due.

A lawyer is obliged to hold in trust money or property of his client that may come to his possession. He is a trustee to said funds and property.5 He is to keep the funds of his client separate and apart from his own and those of others kept by him. Money entrusted to a lawyer for a specific purpose such as for the registration of a deed with the Register of Deeds and for expenses and fees for the transfer of title over real property under the name of his client if not utilized, must be returned immediately to his client upon demand therefor. The lawyer’s failure to return the money of his client upon demand gave rise to a presumption that he has misappropriated said money in violation of the trust reposed on him.6 The conversion by a lawyer funds entrusted to him by his client is a gross violation of professional ethics and a betrayal of public confidence in the legal profession.7

In this case, respondent intransigeantly refused to return to the complainant the amount of P41,280.00 which he received for the expenses for the transfer to her of the title of the property and for his professional fees. His dishonest conduct was compounded by his interjection of flimsy excuses for his obstinate refusal to refund the amount to complainant.

The relation of attorney and client is highly fiduciary in nature and is of a very delicate, exacting and confidential character. 8 A lawyer is duty-bound to observe candor, fairness and loyalty in all his dealings and transactions with his clients.9 The profession, therefore, demands of an attorney an absolute abdication of every personal advantage conflicting in any way, directly or indirectly, with the interest of his client. In this case, respondent miserably failed to measure up to the exacting standard expected of him.

IN LIGHT OF ALL THE FOREGOING, Respondent Atty. Edwin T. Quiocho is found guilty of violation of Canons 15 and 16 of the Code of Professional Responsibility. He is SUSPENDED from the practice of law for One (1) Year with a stern warning that a repetition of the same or similar acts shall be dealt with more severely. He is DIRECTED to restitute to the complainant the full amount of P41,280.00 within ten (10) days from notice hereof. Respondent is further DIRECTED to submit to the Court proof of payment of said amount within ten (10) days from said payment. If Respondent fails to restitute the said amount within the aforesaid period, he shall be meted an additional suspension of three (3) months for every month or fraction thereof of delay until he shall have paid the said amount in full. In case a subsidiary penalty of suspension for his failure to restitute the said amount shall be necessary, respondent shall serve successively the penalty of his one year suspension and the subsidiary penalty. This is without prejudice to the right of the complainant to institute the appropriate action for the collection of said amount.

SO ORDERED.




Manila

FIRST DIVISION

A.C. No. 5804 July 1, 2003

BENEDICTO HORNILLA and ATTY. FEDERICO D. RICAFORT, complainants, vs.ATTY. ERNESTO S. SALUNAT, respondent.

R E S O L U T I O NCases in Legal Ethics Bachelor of Laws 3A 124


On November 21, 1997, Benedicto Hornilla and Federico D. Ricafort filed an administrative complaint1 with the Integrated Bar of the Philippines (IBP) Commission on Bar Discipline, against respondent Atty. Ernesto S. Salunat for illegal and unethical practice and conflict of interest. They alleged that respondent is a member of the ASSA Law and Associates, which was the retained counsel of the Philippine Public School Teachers Association (PPSTA). Respondent’s brother, Aurelio S. Salunat, was a member of the PPSTA Board which approved respondent’s engagement as retained counsel of PPSTA.

Complainants, who are members of the PPSTA, filed an intra-corporate case against its members of the Board of Directors for the terms 1992-1995 and 1995-1997 before the Securities and Exchange Commission, which was docketed as SEC Case No. 05-97-5657, and a complaint before the Office of the Ombudsman, docketed as OMB Case No. 0-97-0695, for unlawful spending and the undervalued sale of real property of the PPSTA. Respondent entered his appearance as counsel for the PPSTA Board members in the said cases. Complainants contend that respondent was guilty of conflict of interest because he was engaged by the PPSTA, of which complainants were members, and was being paid out of its corporate funds where complainants have contributed. Despite being told by PPSTA members of the said conflict of interest, respondent refused to withdraw his appearance in the said cases.

Moreover, complainants aver that respondent violated Rule 15.062 of the Code of Professional Responsibility when he appeared at the meeting of the PPSTA Board and assured its members that he will win the PPSTA cases.

In his Answer,3 respondent stressed that he entered his appearance as counsel for the PPSTA Board Members for and in behalf of the ASSA Law and Associates. As a partner in the said law firm, he only filed a "Manifestation of Extreme Urgency" in OMB Case No. 0-97-0695.4 On the other hand, SEC Case No. 05-97-5657 was handled by another partner of the firm, Atty. Agustin V. Agustin. Respondent claims that it was complainant Atty. Ricafort who instigated, orchestrated and indiscriminately filed the said cases against members of the PPSTA and its Board.

Respondent pointed out that his relationship to Aurelio S. Salunat was immaterial; and that when he entered into the retainer contract with the PPSTA Board, he did so, not in his individual capacity, but in representation of the ASSA Law Firm. He denied that he ensured the victory of the PPSTA Board in the case he was handling. He merely assured the Board that the truth will come out and that the case before the Ombudsman will be dismissed for lack of jurisdiction, considering that respondents therein are not public officials, but private employees. Anent the SEC case, respondent alleged that the same was being handled by the law firm of Atty. Eduardo de Mesa, and not ASSA.

By way of Special and Affirmative Defenses, respondent averred that complainant Atty. Ricafort was himself guilty of gross violation of his oath of office amounting to gross misconduct, malpractice and unethical conduct for filing trumped-up charges against him and Atty. De Mesa. Thus, he prayed that the complaint against him be dismissed and, instead, complainant Ricafort be disciplined or disbarred.

The complainant was docketed as CBD Case No. 97-531 and referred to the IBP Commission on Bar Discipline. After investigation, Commissioner Lydia A. Navarro recommended that respondent be suspended from the practice of law for six (6) months. The Board of Governors thereafter adopted Resolution No. XV-3003-230 dated June 29, 2002, approving the report and recommendation of the Investigating Commissioner.

Respondent filed with this Court a Motion for Reconsideration of the above Resolution of the IBP Board of Governors.

The pertinent rule of the Code of Professional Responsibility 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.

There is conflict of interest 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." 5 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.6 Also, there is conflict of interests if the acceptance of the new retainer will require the attorney to perform an act 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.7 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.8

In this jurisdiction, a corporation’s board of directors is understood to be that body which (1) exercises all powers provided for under the Corporation Code; (2) conducts all business of the corporation; and (3) controls and holds all property of the corporation. 9 Its members have been characterized as trustees or directors clothed with a fiduciary character.10 It is clearly separate and distinct from the corporate entity itself.

Where corporate directors have committed a breach of trust either by their frauds, ultra vires acts, or negligence, and the corporation is unable or unwilling to institute suit to remedy the wrong, a stockholder may sue on behalf of himself and other stockholders and for the benefit of the corporation, to bring about a redress of the wrong done directly to the corporation and indirectly to the stockholders.11 This is what is known as a derivative suit, and settled is the doctrine that in a derivative suit, the corporation is the real party in interest while the stockholder filing suit for the corporation’s behalf is only nominal party. The corporation should be included as a party in the suit.12

Having thus laid a suitable foundation of the basic legal principles pertaining to derivative suits, we come now to the threshold question: can a lawyer engaged by a corporation defend members of the board of the same corporation in a derivative suit? On this issue, the following disquisition is enlightening:

The possibility for conflict of interest here is universally recognized. Although early cases found joint representation permissible where no conflict of interest was obvious, the emerging rule is against dual representation in all derivative actions. Outside counsel must thus be retained to represent one of the defendants. The cases and ethics opinions differ on whether there must be separate representation from the outset or merely from the time the corporation seeks to take an active role. Furthermore, this restriction on dual representationshould not be waivable by consent in the usual way; the corporation should be presumptively incapable of giving valid consent.13 (underscoring ours)

In other jurisdictions, the prevailing rule is that a situation wherein a lawyer represents both the corporation and its assailed directors unavoidably gives rise to a conflict of interest. The interest of the corporate client is paramount and should not be influenced by any interest of the individual corporate officials.14 The rulings in these cases have persuasive effect upon us. After due deliberation on the wisdom of this doctrine, we are sufficiently convinced that a lawyer engaged as counsel for a corporation cannot represent members of the same corporation’s board of directors in a derivative suit brought against them. To do so would be tantamount to representing conflicting interests, which is prohibited by the Code of Professional Responsibility.

In the case at bar, the records show that SEC Case No. 05-97-5657, entitled "Philippine Public School Teacher’s Assn., Inc., et al. v. 1992-1995 Board of Directors of the Philippine Public School Teacher’s Assn. (PPSTA), et al.," was filed by the PPSTA against its own Board of Directors. Respondent admits that the ASSA Law Firm, of which he is the Managing Partner, was the retained counsel of PPSTA. Yet, he appeared as counsel of record for the respondent Board of Directors in the said case. Clearly, respondent was guilty of conflict of interest when he represented the parties against whom his other client, the PPSTA, filed suit.

In his Answer, respondent argues that he only represented the Board of Directors in OMB Case No. 0-97-0695. In the said case, he filed a Manifestation of Extreme Urgency wherein he prayed for the dismissal of the complaint against his clients, the individual Board Members. By filing the said pleading, he necessarily entered his appearance therein.15 Again, this constituted conflict of interests, considering that the complaint in the Ombudsman, albeit in the name of the individual members of the PPSTA, was brought in behalf of and to protect the interest of the corporation.

Therefore, respondent is guilty of representing conflicting interests. Considering however, that this is his first offense, we find the penalty of suspension, recommended in IBP Resolution No. XV-2002-230 dated June 29, 2002, to be too harsh. Instead, we resolve to admonish respondent to observe a higher degree of fidelity in the practice of his profession.

ACCORDINGLY, respondent Atty. Ernesto Salunat is found GUILTY of representing conflicting interests and is ADMONISHED to observe a higher degree of fidelity in the practice of his profession. He is further WARNED that a repetition of the same or similar acts will be dealt with more severely.

SO ORDERED.




Manila

EN BANC

A.C. No. 6424 March 4, 2005

CONSORCIA S. ROLLON, Complainant, vs.Atty. CAMILO NARAVAL, respondent.

D E C I S I O N

PANGANIBAN, J.:


Lawyers owe fidelity to their clients. The latter’s money or other property coming into the former’s possession should be deemed to be held in trust and should not under any circumstance be commingled with the lawyers’ own; much less, used by them. Failure to observe these ethical principles constitutes professional misconduct and justifies the imposition of disciplinary sanctions.

The Case and the Facts

Before us is a letter-complaint against Atty. Camilo Naraval, filed by Consorcia S. Rollon with the Davao City Chapter of the Integrated Bar of the Philippines (IBP) on November 29, 2001. The Affidavit1 submitted by complainant alleges the following:

"Sometime in October of 2000, I went to the office of Atty. Camilo F. Naraval together with my son, Freddie Rollon, to seek his assistance in a case filed against me before the Municipal Trial Court in Cities Branch 6, Davao City entitled ‘Rosita Julaton vs. Consorcia S. Rollon’ for Collection of Sum of Money with Prayer for Attachment;

"After going over the documents I brought with me pertaining to the said case, Atty. Naraval agreed to be my lawyer and I was required to pay the amount of Eight Thousand Pesos (Php 8,000.00) for the filing and partial service fee, which amount was paid by me on October 18, 2000, a copy of the Official Receipt is hereto attached as Annex ‘A’ to form part hereof;

"As per the instruction of Atty. Naraval, my son, Freddie, returned to his office the following week to make follow-up on said case. However, I was informed later by my son Freddie that Atty. Naraval was not able to act on my case because the latter was so busy. Even after several follow-ups were made with Atty. Naraval, still there was no action done on our case;

"Sometime in November 29, 2001, I decided to withdraw the amount I paid to Atty. Naraval, because of the latter’s failure to comply with our mutual agreement that he will assist me in the above-mentioned case;

"My son Freddie Rollon went to Atty. Naraval’s office that same day to inform Atty. Naraval of our decision to withdraw the amount I have paid and to retrieve my documents pertaining to said case. Unfortunately, despite our several follow-ups, Atty. Naraval always said that he cannot return the documents because they were in their house, and that he could not give us back the amount we paid him (Php 8,000.00) because he has no money;

"Having failed to obtain any response, I decided to refer the matter to Atty. Ramon Edison Batacan, IBP President of Davao City and to Atty. Pedro Castillo, the Commissioner on Bar D[i]scipline;

x x x x x x x x x."

In an Order dated March 12, 2002,2 the IBP Commission on Bar Discipline (CBD), through Director Victor C. Fernandez, directed respondent to submit his answer to the Complaint. The same directive was reiterated in the CBD’s May 31, 2002 Order 3 issued through Commissioner Jovy C. Bernabe. Respondent did not file any answer despite his receipt of the Orders.4

Not having heard from him despite adequate notice, the CBD proceeded with the investigation ex parte. Its Order5dated November 11, 2002, issued through Commissioner Bernabe, required complainant to submit her position paper within ten days from receipt thereof, after which the case was to be deemed submitted for resolution.

The CBD received complainant’s Position Paper6 on December 10, 2002.

Report of the Investigating Commissioner

In his Report and Recommendation dated October 16, 2003, Investigating Commissioner Acerey C. Pacheco recommended that respondent be suspended from the practice of law for one (1) year for neglect of duty and/or violation of Canons 15 and 18 of the Code of Professional Responsibility. The Report reads in part as follows:

"Canon 18 of the Code of Professional Responsibility requires every lawyer to serve his client with utmost dedication, competence and diligence. He must not neglect a legal matter entrusted to him, and his negligence in this regard renders him administratively liable x x x.








"In the case at bar, the deplorable conduct of the respondent in misrepresenting to the complainant that he will render legal services to her, and after receiving certain amount from the latter as payment for ‘filing fee and service fee’ did nothing in return, has caused unnecessary dishonor to the bar. By his own conduct the respect of the community to the legal profession, of which he swore to protect, has been tarnished.

x x x x x x x x x

"In fact, complainant claimed to have been shortchanged by the respondent when he failed to properly appraised her of the status of her case which she later on found to have become final and executory. Apparently, the civil suit between Rosita Julaton and the complainant have been decided against the latter and which judgment has long become final and executory. However, despite full knowledge by the respondent of such finality based on the documents furnished to him, respondent withheld such vital information and did not properly appraise the complainant. Thus, respondent violated the mandate in Canon 15 x x x."7

IBP Board of Governors’ Resolution

On February 27, 2004, the IBP Board of Governors issued Resolution No. XVI-2004-64 upholding the above-quoted Report. The Board recommended the suspension of respondent from the practice of law for two (2) years for violation of Rules 15 and 18 of the Code of Professional Responsibility and the restitution of complainant’sP8,000.

The Court’s Ruling

We agree with the Resolution of the IBP Board of Governors.

Respondent’s Administrative Liability

Ordinarily, lawyers are not obliged to act either as advisers or as advocates of any person who may wish to become their client.8 They may decline employment and refuse to accept representation, if they are not in a position to carry it out effectively or competently.9 But once they agree to handle a case, attorneys are required by the Canons of Professional Responsibility to undertake the task with zeal, care and utmost devotion.10

Acceptance of money from a client establishes an attorney-client relationship and gives rise to the duty of fidelity to the client’s cause.11 Every case accepted by a lawyer deserves full attention, diligence, skill and competence, regardless of importance. 12 The Code of Professional Responsibility clearly states:

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.

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 his client informed of the status of his case and shall respond within a reasonable time to the client’s request for information.

Hence, practising lawyers may accept only as many cases as they can efficiently handle. 13 Otherwise, their clients would be prejudiced. Once lawyers agree to handle a case, they should undertake the task with dedication and care. If they do any less, then they fail their lawyer’s oath.14

The circumstances of this case indubitably show that after receiving the amount of P8,000 as filing and partial service fee, respondent failed to render any legal service in relation to the case of complainant. His continuous inaction despite repeated followups 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.










Furthermore, after going through her papers, respondent should have given her a candid, honest opinion on the merits and the status of the case. Apparently, the civil suit between Rosita Julaton and complainant had been decided against the latter. In fact, the judgment had long become final and executory. But he withheld such vital information from complainant. Instead, he demanded P8,000 as "filing and service fee" and thereby gave her hope that her case would be acted upon.

Rule 15.05 of the Code of Professional Responsibility requires that lawyers give their candid and best opinion to their clients on the merit or lack of merit of the case, neither overstating nor understating their evaluation thereof. Knowing whether a case would have some prospect of success is not only a function, but also an obligation on the part of lawyers.15 If they find that their client’s cause is defenseless, then it is their bounden duty to advise the latter to acquiesce and submit, rather than to traverse the incontrovertible.16 The failure of respondent to fulfill this basic undertaking constitutes a violation of his duty to "observe candor, fairness and loyalty in all his dealings and transactions with his clients."17

Likewise, as earlier pointed out, respondent persistently refused to return the money of complainant despite her repeated demands. His conduct was clearly indicative of lack of integrity and moral soundness; he was clinging to something that did not belong to him, and that he absolutely had no right to keep or use.18

Lawyers are deemed to hold in trust their client’s money and property that may come into their possession. 19 As respondent obviously did nothing on the case of complainant, the amount she had given -- as evidenced by the receipt issued by his law office -- was never applied to the filing fee. His failure to return her money upon demand gave rise to the presumption that he had converted it to his own use and thereby betrayed the trust she had reposed in him.20 His failure to do so constituted a gross violation of professional ethics and a betrayal of public confidence in the legal profession.21

The Code exacts from lawyers not only a firm respect for law, legal processes and the courts,22 but also mandates the utmost degree of fidelity and good faith in dealing with the moneys entrusted to them pursuant to their fiduciary relationship.23 Respondent clearly fell short of the demands required of him as a member of the bar. His inability to properly discharge his duty to his client makes him answerable not just to her, but also to this Court, to the legal profession, and to the general public. 24 Given the crucial importance of his role in the administration of justice, his misconduct diminished the confidence of the public in the integrity and dignity of the profession.25

WHEREFORE, Atty. Camilo Naraval is found GUILTY of violating Rule 15.05 and Canons 16, 17 and 18 of the Code of Professional Responsibility and is hereby SUSPENDED from the practice of law for a period of two (2) years, effective upon his receipt of this Decision. Furthermore, he is ORDERED TO RESTITUTE, within thirty (30) days from notice of this Decision, complainant’s eight thousand pesos (P8,000), plus interest thereon, at the rate of six percent per annum, from October 18, 2000, until fully paid. Let copies of this Decision be furnished all courts, the Office of the Bar Confidant, as well as the National Office and the Davao City Chapter of the Integrated Bar of the Philippines. SO ORDERED.



Manila

SECOND DIVISION

A.C. No. 4380 October 13, 1995

NICANOR GONZALES and SALUD B. PANTANOSAS, complainants, vs.ATTY. MIGUEL SABACAJAN, respondent.













REGALADO, J.:

This resolves the administrative case filed by Nicanor Gonzales and Salud B. Pantanosas against Atty. Miguel Sabacajan on February 14, 1995, 1 the verified complaint wherefor alleges:

xxx xxx xxx

4. That sometime in October, 1994, complainants were informed by the Register of Deeds of Cagayan de Oro City that the complainants' owner's duplicate of title covering their lands, Transfer Certificate of Title Nos. T-91736 and T-91735 were entrusted to the office secretary of the respondent who in torn entrusted the same to respondent;

5. That respondent admitted and confirmed to the complainants that their titles are in his custody and has even shown the same (to) the complainant Salud B. Pantanosas but when demanded (sic) to deliver the said titles to the complainant in a formal demand letter, marked as ANNEX "A," respondent refused and continues to refuse without any justification to give their titles (and) when confronted, respondent challenged the complainants to file any case in any court even in the Honorable Supreme Court;

6. That respondent's dare or challeng(e) is a manifestation of his arrogance taking undue advantage of his legal profession over the simplicity, innocence and ignorance of the complainants, one of whom is his blood relative, his aunt, for which complainants shudder with mental anguish;

7. That due to his challeng(e), the complainants sent a letter to the Honorable Supreme Court for enlightenment, copy of which is attached as ANNEX "B", for which the Honorable Supreme Court required 19 legible copies of a verified complaint;

8. That in spite of repeated demands, request(s) and pleas towards (sic) respondent, respondent still fail(ed) and stubbornly refused without justification to surrender the said titles to the rightful owners, the complainants here(in), which act is tantamount to willful and malicious defiance of legal and moral obligations emanating from his professional capacity as a lawyer who had sworn to uphold law and justice, to the prejudice and damage of the complainants; 2

xxx xxx xxx

On March 22, 1995, the Court required respondent to comment on the foregoing complaint. In his unverified "Answer" thereto, respondent admitted having met Salud Pantanosas but claims that, to his recollection, "Nicanor Gonzales/Serdan" has never been to his office. Respondent likewise denied that he challenged anyone to file a case in any court, much less the Supreme Court. He also claims that he referred complainant Pantanosas to his client, Mr. Samto M. Uy of Iponan, Cagayan de Oro City, for whom he worked out the segregation of the titles, two of which are the subject of the instant case. 3

Respondent likewise denies complainants' allegation that he is arrogant, in contrast to the innocence, simplicity and ignorance of said complainants. He contends that the truth of the matter is that complainants have been charged with a number of criminal and civil complaints before different courts. He also asserts that he was holding the certificates of title in behalf of his client, Samto M. Uy. 4

Atty. Sabacajan stresses, by way of defense, that "the instant action was chosen precisely to browbeat him into delivering the Certificates of Title to them without said certificates passing the hands of Mr. Samto Uy with whom the complainants have some monetary obligations." 5

In its resolution dated June 26, 1995, 6 for internal administrative purposes the Court referred this case to the Office of the Bar Confidant for the corresponding evaluation, report and recommendation.

From the foregoing proceedings taken on this matter, the Court finds that respondent admitted having taken possession of the certificates of title of complainants but refused to surrender the same despite demands made by the latter. It follows, therefore, that it was incumbent upon him to show that he was legally justified in doing so. Instead, all he did was to inform this Court that "his obligation to deliver the certificates to Mr. Samto Uy excludes the delivery of said certificates to anyone else." 7


Respondent attached some certifications to his "Answer" to support his contention that complainants are notorious characters. However, the certifications indicate that most of the cases stated therein, especially those involving fraud, have been dismissed. With respect to those still pending, there is no indication as to the identity of the party who instituted the same, aside from the consideration that the remedy thereon is judicial in nature. At any rate, these aspersions on the character of complainants have no bearing on the misconduct of respondent charged in the present case.

Respondent likewise submitted xerox copies of certain certificates of title in an effort to explain why he kept the certificates of title of complainants, that is, supposedly for the purpose of subdividing the property. However, an examination of the same does not show any connection thereof to respondent's claim. In fact, the two sets of certificates of title appear to be entirely different from each other.

As a lawyer, respondent should know that there are lawful remedies provided by law to protect the interests of his client. The records do not show that he or his client have availed of said remedies, instead of merely resorting to unexplained, if not curt, refusals to accommodate the requests of complainants. Also, he cannot be unaware of the imposable sanctions on a counsel who resorts to unlawful means that would cause injustice to the adversaries of his client.

The Court accordingly finds that respondent has not exercised the good faith and diligence required of lawyers in handling the legal affairs of their clients. If complainants did have the alleged monetary obligations to his client, that does not warrant his summarily confiscating their certificates of title since there is no showing in the records that the same were given as collaterals to secure the payment of a debt. Neither is there any intimation that there is a court order authorizing him to take and retain custody of said certificates of title.

Apparently, respondent has disregarded Canon 15, Rule 15.07 of the Code of Professional Responsibility which provides that a lawyer shall impress upon his client the need for compliance with the laws and principles of fairness. Instead, he unjustly refused to give to complainants their certificates of titles supposedly to enforce payment of their alleged financial obligations to his client and presumably to impress the latter of his power to do so.

Canon 19, Rule 19.01 ordains 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 charges to obtain an improper advantage in any case or proceeding. Respondent has closely skirted this proscription, if he has not in fact transgressed the same.

On the foregoing considerations, the Court desires and directs that respondent should forthwith return the certificates of title of complainants. To ensure the same, he should be placed under suspension until he presents to the Court proof of receipt by complainants of their respective copies of Certificates of Title Nos. T-91735 and T-91736 or a judicial order or document authorizing or justifying the retention of possession thereof by respondent or his aforenamed client.

WHEREFORE, Atty. Miguel Sabacajan is hereby SUSPENDED from the practice of law until he can duly show to this Court that the disputed certificates of title have been returned to and the receipt thereof duly acknowledged by complainants, or can present a judicial order or appropriate legal authority justifying the possession by him or his client of said certificates. He is further WARNED that a repetition of the same or similar or any other administrative misconduct will be punished more severely.

Let a copy of this resolution be spread on the personal records of respondent and have copies thereof furnished to the Integrated Bar of the Philippines and duly circularized to all courts in the country.

SO ORDERED.




Manila

THIRD DIVISION

A.C. No. 6651 February 27, 2006

EDUARDO P. MENESES, Complainant, vs.ATTY. RODOLFO P. MACALINO, Respondent.

D E C I S I O N

CARPIO, J.:

The CaseCases in Legal Ethics Bachelor of Laws 3A 133

This is a complaint for disbarment filed by Eduardo P. Meneses ("complainant") against Atty. Rodolfo P. Macalino ("respondent") for violation of the lawyer’s oath.

The Facts

Complainant alleged that sometime in March 1993, respondent offered his legal services to complainant to help secure the release of complainant’s car from the Bureau of Customs. Respondent proposed to handle the case for a "package deal" of P60,000. Complainant agreed and initially gave respondent P10,000 for processing of the papers. In June 1993, respondent asked for P30,000 to expedite the release of the car. In both instances, respondent did not issue a receipt but promised to furnish complainant with a receipt from the Bureau of Customs. Since then, respondent failed to give complainant an update on the matter.

Complainant repeatedly went to respondent’s house to inquire on the status of the release of the car. Complainant was always told that respondent was not around and to just return another day. This went on for more than a year.

In April 1994, complainant went to the National Bureau of Investigation ("NBI") to file a complaint for estafa against respondent.1 The NBI set the complaint for investigation on 27 April 1994.

Respondent wrote a letter2 to the NBI dated 26 April 1994, requesting for postponement of the investigation to 12 May 1994. Respondent stated in his letter that he would settle the matter amicably with complainant and return theP40,000. Respondent failed to appear for the investigation scheduled on 12 May 1994.

Respondent sent another letter3 to the NBI dated 23 May 1994, requesting for the suspension of the proceedings because he had partially settled the case. Respondent attached the acknowledgment receipt4 signed by complainant representing the partial refund of P20,000. Respondent promised to pay the balance on or before 8 June 1994. However, respondent did not pay the balance. The NBI set the complaint for investigation twice and subpoenaed respondent but he failed to appear.

On 22 January 1996, the NBI, through Director Mariano M. Mison, found insufficient evidence to prosecute respondent for estafa. Nevertheless, the NBI advised complainant to file a complaint for disbarment against respondent.5

On 30 April 1996, complainant filed a verified complaint6 for disbarment against respondent with the Commission on Bar Discipline ("Commission") of the Integrated Bar of the Philippines ("IBP"). Complainant charged respondent with failure to render legal services, failure to refund balance of legal fees, and failure to apprise the complainant of the status of the case – all in violation of the lawyer’s oath of office.

In an Order7 dated 23 July 1998, Investigating Commissioner Ma. Carmina M. Alejandro-Abbas ("Commissioner Abbas") ordered respondent to submit his answer to the complaint. Respondent was also warned that if he failed to file an answer, the Commission would consider him in default and the case would be heard ex-parte. Although he received the Order, respondent failed to file an answer.

The case was set for initial hearing on 7 May 2002. Despite receipt of the notice of hearing, respondent failed to appear. Complainant was present and he informed Commissioner Abbas that he had previously filed a complaint for estafa against respondent with the NBI. Commissioner Abbas then issued a subpoena duces tecum to Mr. Waldo Palattao, or his duly authorized representative, of the Anti-Fraud Action Division of the NBI for the case folder and all the documents pertaining to the complaint.8 Mr. Emil Rejano, a confidential agent of the NBI, submitted all the documents during the hearing on 29 July 2002.9

Further hearings were scheduled for 27 June 2002, 29 July 2002, 9 September 2002, 8 October 2002 and 5 November 2002. Despite due notice, respondent failed to appear on these dates.

On 18 August 2004, Investigating Commissioner Dennis A. B. Funa ("Commissioner Funa"), who took over the investigation, issued an order submitting the case for decision based on the evidence on record. Respondent’s failure to file an answer and to attend the hearings were deemed a waiver of his right to participate in the proceedings and present evidence.10

The IBP’s Report and Recommendationlavvph!1.net

The IBP Board of Governors issued CBD Resolution No. XVI-2004-414 ("IBP Resolution") dated 7 October 2004 adopting with modification11 Commissioner Funa’s Report and Recommendation ("Report") finding respondent guilty of violating the Code of Cases in Legal Ethics Bachelor of Laws 3A 134

http://www.lawphil.net/judjuris/juri2006/feb2006/ac_6651_2006.html#fnt11











Professional Responsibility. The IBP Board of Governors recommended the imposition on respondent of a penalty of one year suspension from the practice of law. The Report reads:

From the records of the case, there is clearly a breach of lawyer-client relations. Moreover, [r]espondent has continuously exhibited his adamant refusal to comply with his legal obligations to his client, despite many opportunities to settle the matter amicably. Aggravating this is [r]espondent’s utter disregard of the legal process before the NBI, choosing to ignore notices from the NBI in the middle of an investigation. In addition, [r]espondent has continuously disregarded the jurisdiction of this Commission. It is clear from the records of the case that [r]espondent has duly received the orders and notices from this Commission as evidenced by the [r]egistry [r]eturn [r]eceipts.

In the absence of any counter-allegations from [r]espondent, which is by his own doing, the allegations of the [c]omplainant shall stand and be given its due credence.12 (Emphasis supplied)

The IBP Board of Governors forwarded the instant case to the Court as provided under Section 12(b), Rule 139-B13 of the Rules of Court.

The Ruling of the Court

The Court finds respondent liable for violation of Canon 16,14 Rule 16.01,15 Rule 16.03,16 and Rule 18.0417 of the Code of Professional Responsibility ("Code").

Respondent Failed to Inform and to Respond to Inquiries of the Complainant Regarding the Status of the Case

The relationship of lawyer-client being one of confidence, it is the lawyer’s duty to keep the client regularly and fully updated on the developments of the client’s case.18 The Code provides 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."19

The records show that after receiving P40,000, respondent was never heard of again. Respondent kept complainant in the dark about the status of the release of the car. Only after complainant filed a complaint with the NBI did respondent communicate with complainant. Moreover, it appears that respondent failed to render any legal service to facilitate the car’s release. In fact, respondent failed to secure the release of the car. Respondent’s failure to communicate with complainant was an unjustified denial of complainant’s right to be fully informed of the status of the case.20

Respondent Failed to Account and Return the Money He Received from Complainant

The Code mandates that every "lawyer shall hold in trust all moneys and properties of his client that may come into his possession."21 The Code further states that "[a] lawyer shall account for all money or property collected or received for or from the client."22 Furthermore, "[a] lawyer shall deliver the funds and property of his client when due and upon demand."23

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 the intended purpose.24 Consequently, if the lawyer does not use the money for the intended purpose, the lawyer must immediately return the money to the client.25

Respondent specifically received the P40,000 for his legal services and for the processing fee to facilitate the release of complainant’s car. Since respondent failed to render any legal service to complainant and he also failed to secure the car’s release, respondent should have promptly accounted for and returned the money to complainant. But even after demand, respondent did not return the money. Again, respondent waited until complainant filed a complaint with the NBI before he refunded the P20,000. Even then, respondent failed to return the balance of P20,000 as he promised.

Respondent’s failure to return the money to complainant upon demand is conduct indicative of lack of integrity and propriety and a violation of the trust reposed on him.26 Respondent’s unjustified withholding of money belonging to the complainant warrants the imposition of disciplinary action.27


















Respondent Failed to File an Answer and Attend the Hearings before the IBP

The Court notes that respondent’s actuation reveals a high degree of irresponsibility28 and shows his lack of respect for the IBP and its proceedings.29 Respondent’s attitude demonstrates a character which stains the nobility of the legal profession.30

On the Appropriate Penalty to be Imposed on Respondent

The Court finds the penalty recommended by the IBP to suspend respondent from the practice of law for one year well-taken. Following the rulings of this Court, those found guilty of the same or similar acts were suspended for not less than six months from the practice of law.31 Considering respondent’s lack of prior administrative record, suspension from the practice of law for one year, and not disbarment as prayed for by complainant, serves the purpose of protecting the interest of the public and the legal profession. This Court will exercise its power to disbar only in clear cases of misconduct that seriously affects the standing and character of the lawyer as an officer of the court and a member of the bar.32

WHEREFORE, we find respondent Atty. Rodolfo P. Macalino GUILTY of violation of Canon 16, Rule 16.01, Rule 16.03, and Rule 18.04 of the Code of Professional Responsibility. Accordingly, we SUSPEND respondent Atty. Rodolfo P. Macalino from the practice of law for one year effective upon finality of this decision. Respondent isORDERED TO RETURN to complainant, within 30 days from notice of this decision, the full amount of P20,000 with interest at 12% per annum from the date of promulgation of this decision until full payment. Respondent is furtherDIRECTED to submit to the Court proof of payment of the amount within 15 days from payment.

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.



Manila

EN BANC

A.C. No. 8253 March 15, 2011(Formerly CBD Case No. 03-1067)

ERLINDA R. TAROG, Complainant, vs.ATTY. ROMULO L. RICAFORT, Respondent.

D E C I S I O N

PER CURIAM:







We resolve a complaint for disbarment for alleged grave misconduct brought against Atty. Romulo L. Ricafort for his failure to account for and to return the sums of money received from his clients for purposes of the civil action to recover their property from a foreclosing banking institution he was handling for them. The original complainant was Arnulfo A. Tarog, but his wife, Erlinda R. Tarog, substituted him upon his intervening death.

Antecedents

In 1992, the Tarogs sought the advice of Atty. Jaime L. Miralles regarding their bank-foreclosed property located in the Bicol Region. Atty. Miralles advised them to engage a Bicol-based attorney for that purpose. Thus, they went to see Atty. Ricafort accompanied by Vidal Miralles, their friend who was a brother of Atty. Miralles.1 They ultimately engaged Atty. Ricafort as their attorney on account of his being well-known in the community, and being also the Dean of the College of Law of Aquinas University where their son was then studying.

Having willingly accepted the engagement, Atty. Ricafort required the Tarogs to pay P7,000.00 as filing fee, which they gave to him.2 He explained the importance of depositing P65,000.00 in court to counter the P60,000.00 deposited by Antonio Tee, the buyer of the foreclosed property. After they informed him that they had onlyP60,000.00, he required them to add some more amount (dagdagan niyo ng konti).3 To raise the P65,000.00 for the Tarogs, therefore, Vidal solicited a loan from one Sia with the guarantee of his brother Atty. Miralles. Sia issued a check in that amount in the name of Arnulfo.4

On November 7, 1992, the Tarogs and Vidal went to the office of Atty. Ricafort to deliver the P65,000.00. When Arnulfo said that he had first to encash the check at the bank, Atty. Ricafort persuaded him to entrust the check to him instead so that he (Atty. Ricafort) would be the one to encash it and then deposit the amount in court. On that representation, Arnulfo handed the check to Atty. Ricafort.5

After some time, the Tarogs visited Atty. Ricafort to verify the status of the consignation. Atty. Ricafort informed them that he had not deposited the amount in court, but in his own account. He promised to return the money, plus interest. Despite several inquiries about when the amount would be returned, however, the Tarogs received mere assurances from Atty. Ricafort that the money was in good hands.

The Tarogs further claimed that the Regional Trial Court, Branch 52, in Sorsogon (RTC), where their complaint for annulment of sale was being heard, had required the parties to file their memoranda. Accordingly, they deliveredP15,000.00 to Atty. Ricafort for that purpose, but he did not file the memorandum.6

When it became apparent to the Tarogs that Atty. Ricafort would not make good his promise of returning the P65,000.00, plus interest, Arnulfo demanded by his letter dated December 3, 2002 that Atty. Ricafort return theP65,000.00, plus interest, and the P15,000.00 paid for the filing of the memorandum.7 Yet, they did not receive any reply from Atty. Ricafort.

In his defense, Atty. Ricafort denied that the P65,000.00 was intended to be deposited in court, insisting that the amount was payment for his legal services under a "package deal," that is, the amount included his acceptance fee, attorney’s fee, and appearance fees from the filing of the complaint for annulment of sale until judgment, but excluding appeal. He claimed that the fees were agreed upon after considering the value of the property, his skill and experience as a lawyer, the labor, time, and trouble involved, and his professional character and social standing; that at the time he delivered the check, Arnulfo read, understood, and agreed to the contents of the complaint, which did not mention anything about any consignation; 8 and that Arnulfo, being a retired school principal, was a learned person who would not have easily fallen for any scheme like the one they depicted against him.

Findings of the IBP Commissioner

Following his investigation, Commissioner Wilfredo E.J.E. Reyes of the Integrated Bar of the Philippines-Commission on Bar Discipline rendered his Report and Recommendation dated October 7, 2004,9 in which he concluded that:

It is respectfully recommended that respondent, Atty. Romulo L. Ricafort be DISBARRED and be ordered to return the amount of P65,000 and P15,000 which he got from his client.

RESPECTFULLY SUBMITTED.

Commissioner Reyes regarded the testimonies of Erlinda and Vidal more credible than the testimony of Atty. Ricafort, observing:Cases in Legal Ethics Bachelor of Laws 3A 137










Based on the said testimony, statements and actuations of complainant Erlinda Tarog and his collaborating witness, we find their statements to be credible.

Atty. Ricafort in his testimony attempted to show that the amount of P65,000.00 was paid to him by the complainant as acceptance fee on a package deal basis and under said deal, he will answer the filing fee, attorney’s fees and other expenses incurred up to the time the judgment is rendered. He presented a transcript of stenographic notes wherein it was stated that complainant himself did not consign the money in court. The respondent admitted in his testimony that he did not have any retainer agreement nor any memorandum signed or any receipt which would prove that the amount of P65,000.00 was received as an acceptance fee for the handling of the case.

Atty. Romulo Ricafort stated that there was no retainer agreement and that he issued only receipt because the late Arnulfo Tarog will not pay unless a receipt is issued.

The Undersigned Commissioner asked the respondent "Basically you describe that thing that will happen in the litigation related to the payment of fees. But when you received that P65,000.00 did you not put anything there that you will describe the nature of legal work which you will undertake considering that you have considered thisP65,000.00 as your attorney’s fees? And Atty. Ricafort stated: Yes I did. I do not know why they were not showing the receipt. That is a big amount, Your Honor. They demanded for me the receipt of P30,000.00 how much more with that P65,000.00. They demanded for the receipt of that P65,000.00 but I cannot explain the reason why……

During the clarificatory questioning, the Undersigned Commissioner also asked Atty. Ricafort why he did not answer the demand letter sent by Arnulfo Tarog and the proof of service of the said letter was presented by the complainant. Conveniently, Atty. Ricafort stated that he did not receive the letter and it was received by their helper who did not forward the letter to him. He also adopted the position that the complainant was demanding theP65,000.00 wherefore this case was filed. When confronted by the testimony of Mr. Vidal Miralles, the respondent Atty. Ricafort just denied the allegation that he received the P65,000.00 for deposit to the court. He also denied that Mr. Miralles has visited his residence for follow-up the reimbursement.

The Undersigned Commissioner asked the respondent if he has personal animosity with Arnuldo Tarog, Erlinda Tarog and Vidal Miralles and if there are any reason why this case was filed against him. In his answer the respondent stated that we have been very good friends for the past ten (10) years and he said that in fact he was surprised when the complaint was filed against him and they even attached the decision of the Supreme Court for his suspension and maybe they are using this case to be able to collect from him.

The main defense of the respondent is that the complainant in this case testified that the total amount to redeem his property is P240,000.00 and when asked whether he consigned the money to the court to redeem the property he answered in the negative.

The alleged payment of P65,000.00 was made prior to the said testimony sometime in 1992. Hence, it was stated on complainant’s affidavit that on November 7, 1992, prior to filing said complaint I had given him the sum of Sixty Five Thousand Pesos to be deposited to the Regional Trial Court representing redemption money of the Real Estate Mortgage. The amount of P65,000.00 is very much close to the amount of the principal obligation of the complainant and it is not surprising for a non-lawyer to hold on to the belief that with the filing of the case for annulment of foreclosure his case would be strengthened by making a deposit in court hence, the motivation to produce the deposit was logical and natural insofar as the complainant is concerned. The testimony of the complainant in court that the bank needed P240,000.00 for the redemption of the property will have no bearing on the actuation of the complainant who has been required to deposit P65,000.00 by his lawyer. The Undersigned Commission has no alternative but to believe in the credibility and truthfulness of complainant’s narration that of Mrs. Erlinda Tarog and Vidal Miralles.10

Commissioner Reyes concluded that Atty. Ricafort violated Canon 15, and Rules 16.01, 16.02 and 16.03 of Canon 16 of the Code of Professional Responsibility by taking advantage of the vulnerability of his clients and by being dishonest in his dealings with them by refusing to return the amount of P65,000.00 to them.

On November 4, 2004, the IBP Board of Governors adopted Resolution No. XVI-2004-473,11 resolving to return the matter to Commissioner Reyes for a clarification of whether or not there was evidence to support the claim that the P65,000.00 had been in payment of attorney’s fees and other expenses.

On October 11, 2005, Commissioner Reyes issued a second Report and Recommendation, 12 in which he declared that Atty. Ricafort did not present any retainer agreement or receipt to prove that the amount ofP65,000.00 had been part of his attorney’s fees; that





Atty. Ricafort had willfully ignored the demand of Arnulfo by not replying to the demand letter; that, instead, Atty. Ricafort had insisted that the househelp who had received the demand letter had not given it to him; and that in his (Commissioner Reyes) presence, Atty. Ricafort had also promised to the complainant that he would settle his liability, but Atty. Ricafort did not make good his promise despite several resettings to allow him to settle his obligation.

Action of IBP Board of Governors

Through Resolution No. XVII-2006-569,13 therefore, the IBP Board of Governors adopted and approved the Report and Recommendation of Commissioner Reyes and recommended the disbarment of Atty. Ricafort and the order for him to return the amounts of P65,000.00 and P15,000.00 to Erlinda, viz:

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 has taken advantage of his client [sic] vulnerability and has been dishonest with his dealings to his client, Atty. Romulo L. Ricafort is hereby DISBARRED and Ordered to Return the amount of P 65,000 and P 15,000 to complainant .

Atty. Ricafort moved for reconsideration,14 maintaining that a retainer agreement was immaterial because he had affirmed having received the P65,000.00 and having issued a receipt for the amount; that he had not kept the receipt because "the practice of lawyers in most instances is that receipt is issued without duplicate as it behooves upon the client to demand for a receipt;" 15 that considering that the Tarogs had produced a photocopy of the receipt he had issued for the P30,000.00 in connection with their appeal, it followed that a similar receipt for attorney’s fees had been made at the time when the case had been about to be filed in the RTC; that the testimonies of Erlinda and Vidal were inconsistent with Arnulfo’s affidavit; and that he did not receive Arnulfo’s demand letter, which was received by one Gemma Agnote (the name printed on the registry receipt), whom he did not at all know.

Acting on Atty. Ricafort’s motion for reconsideration, the IBP Board of Governors downgraded the penalty from disbarment to indefinite suspension,16 thus:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED the Recommendation of the Board of Governors First Division 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, the Motion for Reconsideration is hereby DENIED with modification of Resolution No. XVII-2006-509 of the Board of Governors dated 18 November 2006, that in lieu of the Disbarment of Atty. Romulo Ricafort, he is INDEFINITELY SUSPENDED from the practice of law and Ordered to return the amount of P65,000 and P15,000 to complainant.

Atty. Ricafort filed a second motion for reconsideration,17 assailing the resolution of the IBP Board of Governors for violating Section 12, Rule 139-B of the Rules of Court requiring the decision of the IBP Board of Governors to be in writing and to clearly and distinctly state the facts and reasons on which the decision was based.

Hence, the administrative case is now before the Court for resolution.

Ruling

We affirm the findings of the Commissioner Reyes, because they were supported by substantial evidence. However, we impose the penalty of disbarment instead of the recommended penalty of indefinite suspension, considering that Atty. Ricafort committed a very serious offense that was aggravated by his having been previously administratively sanctioned for a similar offense on the occasion of which he was warned against committing a similar offense.

A.Version of the complainants was more credible than version of Atty. Ricafort

Atty. Ricafort admitted receiving the P65,000.00 from the Tarogs. Even so, we have two versions about the transaction. On the one hand, the Tarogs insisted that the amount was to be consigned in court for purposes of their civil case; on the other hand, Atty. Ricafort claimed that the amount was for his fees under a "package deal" arrangement.

Commissioner Reyes considered the Tarogs’ version more credible.Cases in Legal Ethics Bachelor of Laws 3A 139






We hold that Commissioner Reyes’ appreciation of the facts was correct and in accord with human experience.

Firstly, it is easier to believe that Atty. Ricafort persuaded the Tarogs on the need for that amount to be deposited in court for purposes of their civil case. Being non-lawyers, they had no idea about the requirement for them to consign any amount in court, due to the substantive and procedural implications of such requirement being ordinarily known only to lawyers. Their ready and full reliance on Atty. Ricafort’s representations about the requirement to consign that amount in court was entirely understandable in view of their awareness of Atty. Ricafort’s standing in the legal community of the place. Besides, as Commissioner Reyes observed, it was not far-fetched for the Tarogs to believe that an amount close in value to their original obligation was necessary to be deposited in court to boost their chances of recovering their property.

Secondly, Atty. Ricafort’s denial of receipt of Arnulfo’s demand letter was incredible. He already initially admitted receiving the letter through a househelp.18 His denial came only subsequently and for the first time through his motion for reconsideration dated December 30, 2006,19 in which he completely turned about to declare that the Gemma Agnote who had received the letter was unknown to him.20 Expectedly, Commissioner Reyes disregarded his denial, because not only was the denial an apparently belated afterthought, it was even contradicted by his earlier admission of receipt. In any event, the fact that Gemma Agnote was even the househelp whom Atty. Ricafort had adverted to becomes very plausible under the established circumstances.

Thirdly, Atty. Ricafort explained that he had no copies of the receipts for the P65,000.00 and P15,000.00 issued to the Tarogs because "the practice of lawyers in most instances is that receipt is issued without duplicate as it behooves upon the client to demand for a receipt."21 But such explanation does not persuade us. Ethical and practical considerations made it both natural and imperative for him to issue receipts, even if not demanded, and to keep copies of the receipts for his own records. He was all too aware that he was accountable for the moneys entrusted to him by the clients, and that his only means of ensuring accountability was by issuing and keeping receipts. Rule 16.01 of the Code of Professional Responsibility expressly enjoins such accountability, viz:

Rule 16.01 - A lawyer shall account for all money or property collected or received for or from the client.

Definitely, Atty. Ricafort had a highly fiduciary and confidential relation with the Tarogs. As such, he was burdened with the legal duty to promptly account for all the funds received from or held by him for them.22

And, fourthly, to buttress his denial that the P65,000.00 was not intended for deposit in court, Atty. Ricafort insisted that Arnulfo did not object to the omission from the complaint in the civil action of any mention of consignation. However, the complaint that he himself had written and filed for the Tarogs contradicted his insistence, specifically in its paragraph 16, which averred the plaintiffs’ (i.e., Tarogs) readiness and willingness to deposit the amount of P69,345.00 (inclusive of the redemption price and interest) in court, thus:

16. And to show willingness and sincerity of the plaintiffs, they are ready and willing to deposit the amount ofP69,345.00 as redemption price plus reasonable accrued interests, if there are any; 23

Nor could the Tarogs have conjured or invented the need for consignation. The consignation was a notion that could have emanated only from him as their lawyer. In fact, Erlinda recalled while testifying before the IBP Commission on Bar Discipline that they had brought to their meeting with Atty. Ricafort only P60,000.00 for the consignation, but that Atty. Ricafort had to instruct them to raise the amount. The excerpt of her pertinent testimony follows:

Comm. Reyes: Madam Witness, in this affidavit you stated that your late husband and Mr. Vidal Miralles went to the office of Atty. Ricafort to advise the latter that we already had the sum of P65,000.00 in the form of check, how did you come to know this fact?

Witness: Paano po ba sabi nya na magdeposit ng P65,000.00 tapos may P60,000.00 kami sabi niya dagdagan niyo ng konti.

Comm. Reyes: Kinausap ba niya kayo?

Witness: Nandoon po ako.

Comm. Reyes: Where you present when the check was given?

Witness: Yes.








Comm. Reyes: So, alam niyo, nakita niyo na binigay yong P65,000.00 na tseke?

Witness: Opo.

Comm. Reyes: Alam niyo ba kung ano ang nangyari doon sa tseke na idiniposit?

Witness: Noong una sinabi niya sa amin na ididiposit niya sa court.

Comm. Reyes: Nalaman niyo ba na hindi naman pala idiniposit sa court?

Witness: Opo.

Comm. Reyes: Kailan niyo nalaman?

Witness: Nagsabi siya tapos sinabi pa niya na yong interest sa bank ay ibinigay niya sa amin ang sabi naming salamat.24

B.Atty. Ricafort’s acts and actuations constituted serious breach of his fiduciary duties as an attorney

The Code of Professional Responsibility demands the utmost degree of fidelity and good faith in dealing with the moneys entrusted to lawyers because of their fiduciary relationship.25 In particular, Rule 16.01 of the Code of Professional Responsibility states:

Rule 16.01 - A lawyer shall account for all money or property collected or received for or from the client.

Undoubtedly, Atty. Ricafort was required to hold in trust any money and property of his clients that came into his possession,26 and he needed to be always mindful of the trust and confidence his clients reposed in him. 27 Thus, having obtained the funds from the Tarogs in the course of his professional employment, he had the obligation to deliver such funds to his clients (a) when they became due, or (b) upon demand.281avvphi1

Furthermore, Rule 16.02 of the Code of Professional Responsibility, imposes on an attorney the positive obligation to keep all funds of his client separate and apart from his own and from those of others kept by him, to wit:

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.

Atty. Ricafort’s act of obtaining P65,000.00 and P15,000.00 from the Tarogs under the respective pretexts that the amount would be deposited in court and that he would prepare and file the memorandum for the Tarogs erected a responsibility to account for and to use the amounts in accordance with the particular purposes intended. For him to deposit the amount of P65,000.00 in his personal account without the consent of the Tarogs and not return it upon demand, and for him to fail to file the memorandum and yet not return the amount of P15,000.00 upon demand constituted a serious breach of his fiduciary duties as their attorney. He reneged on his duty to render an accounting to his clients showing that he had spent the amounts for the particular purposes intended.29 He was thereby presumed to have misappropriated the moneys for his own use to the prejudice of his clients and in violation of the clients’ trust reposed in him.30 He could not escape liability, for upon failing to use the moneys for the purposes intended, he should have immediately returned the moneys to his clients.31

Atty. Ricafort’s plain abuse of the confidence reposed in him by his clients rendered him liable for violation of Canon 16,32 particularly Rule 16.01, supra, and Canon 17,33 all of the Code of Professional Responsibility. His acts and actuations constituted a gross violation of general morality and of professional ethics that impaired public confidence in the legal profession and deserved punishment.34

Without hesitation, therefore, we consider Atty. Ricafort’s acts and conduct as gross misconduct, a serious charge under Rule 140 of the Rules of Court, to wit:

Section 8. Serious charges. – Serious charges include:

xxx













3. Gross misconduct constituting violations of the Code of Judicial Conduct;

xxx

That this offense was not the first charged and decided against Atty. Ricafort aggravated his liability. In Nuñez v. Ricafort,35 decided in 2002, the Court found him to have violated Rules 1.0136 of Canon 1 and Rule 12.0337 and Rule 12.0438 of Canon 12 of the Code of Professional Responsibility in relation to his failure to turn over the proceeds of the sale of realty to the complainant (who had authorized him to sell the realty in her behalf). His failure to turn over the proceeds compelled the complainant to commence in the RTC a civil action to recover the proceeds against him and his wife. The

Court meted on him the penalty of indefinite suspension, and warned him against the commission of similar acts, stating:

We concur with the findings of the Investigating Commissioner, as adopted and approved by the Board of Governors of the IBP, that respondent Atty. Romulo Ricafort is guilty of grave misconduct in his dealings with complainant. Indeed, the record shows respondent’s grave misconduct and notorious dishonesty.

There is no need to stretch one’s imagination to arrive at an inevitable conclusion that respondent gravely abused the confidence that complainant reposed in him and committed dishonesty when he did not turn over the proceeds of the sale of her property. Worse, with palpable bad faith, he compelled the complainant to go to court for the recovery of the proceeds of the sale and, in the process, to spend money, time and energy therefor. Then, despite his deliberate failure to answer the complaint resulting in his having been declared in default, he appealed from the judgment to the Court of Appeals. Again, bad faith attended such a step because he did not pay the docket fee despite notice. Needless to state, respondent wanted to prolong the travails and agony of the complainant and to enjoy the fruits of what rightfully belongs to the latter. Unsatisfied with what he had already unjustly and unlawfully done to complainant, respondent issued checks to satisfy the alias writ of execution. But, remaining unrepentant of what he had done and in continued pursuit of a clearly malicious plan not to pay complainant of what had been validly and lawfully adjudged by the court against him, respondent closed the account against which the checks were drawn. There was deceit in this. Respondent never had the intention of paying his obligation as proved by the fact that despite the criminal cases for violation of B.P. Blg. 22, he did not pay the obligation.

All the foregoing constituted grave and gross misconduct in blatant violation of Rule 1.01 of Canon 1 of the Code of Professional Responsibility which provides:

A lawyer shall not engage in unlawful, dishonest and immoral or deceitful conduct.

Respondent’s claim of good faith in closing his account because he thought complainant has already encashed all checks is preposterous. The account was closed on or before 26 February 1996. He knew that there were still other checks due on 29 February 1996 and 15 March 1996 which could not be encashed before their maturity dates.

By violating Rule 1.01 of Canon 1 of the Code of Professional Responsibility, respondent diminished public confidence in the law and the lawyers (Busiños v. Ricafort, 283 SCRA 407 [1997]; Ducat v. Villalon,

337 SCRA 622 [2000]). Instead of promoting such confidence and respect, he miserably failed to live up to the standards of the legal profession (Gonato v. Adaza, 328 SCRA 694 [2000]; Ducat v. Villalon, supra).

Respondent’s act of issuing bad checks in satisfaction of the alias writ of execution for money judgment rendered by the trial court was a clear attempt to defeat the ends of justice. His failure to make good the checks despite demands and the criminal cases for violation of B.P. Blg. 22 showed his continued defiance of judicial processes, which he, as an officer of the court, was under continuing duty to uphold.39

Bearing in mind his administrative record, and considering that the penalty for violation of Canon 16 ranges from suspension for six months,40 to suspension for one year,41 to suspension for two years,42 depending on the amount involved and the severity of the lawyer’s misconduct, we rule that disbarment is the commensurate punishment for Atty. Ricafort, who has shown no reformation in his handling of trust funds for his clients.










WHEREFORE, we find and declare Atty. Romulo L. Ricafort guilty of a violation of Canon 16, Rule 16.01 and Canon 17 of the Code of Professional Responsibility and, accordingly, disbar him. The Bar Confidant is directed to strike out his name from the Roll of Attorneys.

Atty. Ricafort is ordered to return to Erlinda R. Tarog the sums of P65,000.00 and P15,000.00, plus interest of six percent per annum reckoned from the demand made on December 3, 2002, within twenty days from notice.

This decision is effective immediately.

Let a copy of this decision be furnished to the Office of the Court Administrator for circulation to all courts, and to the Integrated Bar of the Philippines, for its reference.

SO ORDERED.



Manila

EN BANC

G.R. No. L-24163 April 28, 1969

REGINO B. ARO, petitioner, vs.THE HON. ARSENIO NAÑAWA, Presiding Judge of Branch IV, Court of First Instance of Laguna, LUIS MAGTIBAY, PABLO MAGTIBAY, AURELLO MARTINEZ, GREGORIO LONTOK, MARIA MENDOZA, MAXIMO PORTO and ROSARlO ANDAYA, respondents.

Regino B. Aro in his own behalf as petitioner. Enrique C. Villanueva for respondents.

BARREDO, J.:

Original petition: (1) for certiorari to annul the order of the Court of First Instance of Laguna, dated November 21, 1964, dismissing its Civil Case No. SC-525 "without prejudice to the right of Atty. Regino B. Aro (petitioner herein) to file a separate action against both the plaintiffs and defendants (private respondents herein) with respect to his alleged attorney's fees", as well as its


order dated January 9, 1965, denying petitioner's motion for reconsideration thereof for lack of merit and (2) for mandamus to compel respondent Judge to take cognizance of petitioner's opposition and countermotion or petition dated November 3, 1964 and to resolve the same on the merits.

There appears to be no dispute as to the following facts alleged in the petition:

2. That the services of herein petitioner, as practising attorney, was engaged by respondents Luis Magtibay and Pablo Magtibay for the prosecution of their claim, as heirs, in the estate of their deceased uncle Lucio Magtibay, consisting of properties which were in the possession of the respondents Aurelia Martinez,1spouses Gregorio Lontok and Maria Mendoza and spouses Maximo Porto and Rosario Andaya.

3. That being without means to prosecute their claim against the persons concerned, respondents Luis Magtibay and Pablo Magtibay agreed with herein petitioner to avail of his services and entrust the prosecution of their claim on a contingent basis as shown in the agreement, copy of which is hereto attached as Annex 'A' and is made an integral part hereof.2

4. That by virtue of said agreement, herein petitioner took the necessary steps to gather the needed papers and documents for the filing of a petition to litigate as pauper and a complaint in the Court of First Instance of Laguna, in which respondents Luis Magtibay and Pablo Magtibay were the plaintiffs and the other respondents, excepting the respondent Judge, were the defendants, ....

5. That said petition to litigate as pauper filed by herein petitioner for respondents Luis Magtibay and Pablo Magtibay was granted by the respondent Judge as per the order dated September 10, 1964, .....

6. That to plaintiffs' complaint in Civil Case No. SC-525, the defendants in said case interposed a motion to dismiss dated September 29, 1964....3

7. That to the said motion to dismiss herein petitioner, as attorney for the plaintiffs (now respondents Luis Magtibay and Pablo Magtibay) filed an opposition dated October 5, 1964.....4

8. That after the hearing of the motion to dismiss filed by the defendants and the opposition thereto by the plaintiffs, which finally took place on October 24, 1964, the respondent Judge issued its resolution or order dated October 24, 1964, denying the motion to dismiss, ....5

9. That on the very day of and after the hearing of the motion to dismiss, or on October 24, 1964, before receipt of a copy of the said order (Annex 'G'), there was a conversation which took place between herein petitioner and the attorney of the defendants, Atty. Rustico de los Reyes, Jr., in the civil case and one who was then acting as a sort of spokesman for the defendants (Ex-Mayor Cordova of Sta. Maria, Laguna) for the amicable settlement of the case between the plaintiffs and the defendants to the effect that a certain property of the spouses Lucio Magtibay (deceased) and respondent Aurelia Martinez, worth P3,000.00, would be given to the plaintiffs in full settlement of their claim, as share in the properties left by their deceased uncle Lucio Magtibay, it having been agreed by herein petitioner and Atty. de los Reyes and the spokesman of the defendants that for the purpose of said amicable settlement, the plaintiffs or one of them and herein petitioner would go to Sta. Maria, Laguna, on October 23, 1964.

10. That having given notice to the plaintiffs (now respondents Luis Magtibay and Pablo Magtibay) at their given address in Calauag, Quezon to come to Candelaria for the purpose of going to Sta. Maria, Laguna on October 23, 1964, petitioner had waited for said plaintiffs to go to his office on or before said date for the engagement mentioned, but due to their (plaintiffs') failure to come to Candelaria, petitioner had to send a telegram to Ex-Mayor Cordova notifying him of his (petitioner's) and plaintiffs' not being able to go to Sta. Maria because of the failure of any of the plaintiffs to come to Candelria, ....

11. That it was only on October 28, 1964, when herein petitioner received a copy of the order dated October 24, 1964 (Annex "G") and to his surprise he also received on the said day a second motion to dismiss dated October 26, 1964; together with Annex "A" of said motion, which is entitled KASULATAN NG PAGHAHATIAN NA LABAS SA HUKUMAN AT PAGPAPALABI, dated October 23, 1964 at Sta. Cruz, Laguna and signed by the plaintiffs and defendant Aurelia Martinez (the three being now respondents in this case), it having been made to appear in said Annex "A" of the second motion to dismiss, among others, that the plaintiffs and defendant Aurelia Martinez had made an extrajudicial partition of the


properties of the deceased Lucio Magtibay and the said Aurelia Martinez adjudicating to the plaintiffs one-fourth (¼) share in the properties of the spouses and three-fourth (3/4) share of the defendant Aurelia Martinez, but making it appear also that said plaintiffs waived their share in favor of Aurelia Martinez, ..., thru which fraudulent waiver, herein petitioner was deprived of his contingent fees, agreed upon, as evidenced by Annex "A" of this petition.6

x x x x x x x x x

14. That petitioner filed by registered mail, on November 4, 1964, his "OPPOSITION TO THE SECOND MOTION TO DISMISS AND COUNTER-MOTION OR PETITION TO SET ASIDE DEED OF EXTRAJUDICIAL PARTITION AND WAIVER DATED OCTOBER 23, 1964 AND TO RECORD ATTORNEY'S LIEN", dated November 3, 1964, wherein he (petitioner) prayed, among others, invoking the provisions of Section 5(d) and Section 6, Rule 135 of the Revised Rules of Court, for the protection of the rights of herein petitioner as an officer of the Court, to wit:

(a) to deny the second motion to dismiss and get aside and annul the deed of extrajudicial partition and waiver dated October 23, 1964;

(b) to fix the compensation of herein counsel in the proportion of one-third (1/3) of the shares of plaintiffs, if in land, or in the amount of P1,000.00, if in cash, and to record the same and expenses advanced by him for the plaintiffs in the sum of P22.15 as lien in favor of herein claimant-petitioner over the properties in litigation, particularly over the one-fourth (1/4) share of the plaintiffs in all the properties of the spouses;

x x x x x x x x x

(d) as an alternative to prayer (a) above, to grant the second motion to dismiss, subjecting, however, the properties in litigation and subject-matters of the extrajudicial partition and waiver to the lien for attorney's fees and expenses in favor of herein claimant-petitioner, after fixing said attorney's fees as prayed for in (b) above.

x x x x x x x x x

15. That on the day f finally set for the hearing of the second motion to dismiss, as well as of the counter-motion or petition, or on November 21, 1964, because of the inquiries or interpellation made by respondent Judge to herein petitioner as to whether there is a Philippine precedent which allows or directs the protection by the Court of the rights of any of its officers (lawyer) against any collusion perpetrated by the parties in a case to defraud or cheat an attorney of his compensation agreed upon by him and his clients, and his answer that insofar as his researches were concerned, he could not find any, although there are a number of cases to that effect in American jurisdiction, the respondent Judge had opined in open court that the claim for and the fixing of the attorney's fees should better be done in a separate action and, in spite of petitioner's memorandum citing American authorities to the effect that,

Though a party may without the consent of his attorney money make a bona fide adjustment with the adverse party and dismiss an action or suit before a judgment or a decree has been rendered thereon, if it appears, however, that such settlement was collosive and consummated pursuant to the intent of both parties to defraud the attorney, the court in which the action was pending may interfere to protect him as one of its officers, by setting aside the order of dismissal, .... (Jackson vs. Stearns, 48 Ore. 25, 84 Pac. 798).

... the respondent Judge, instead of denying the second motion to dismiss and fixing his attorney's fees in the said case and recording the same as lien, ... dismissed the case and refused to give herein petitioner any kind of immediate protection to safeguard his rights ... in said Civil Case No. SC-525 of the Court of First Instance of Laguna.

16. That by the express terms of the agreement, Annex "A" of this petition, plaintiffs in Civil Case No. SC-525 had expressly ceded to herein petitioner one-half (½) [later verbally reduced to one-third (1/3) or P1,000.00] or whatever share they would get from the estate of their deceased uncle Lucio Magtibay, and the defendants in said Civil Case had full knowledge of said right of herein petitioner in the properties in controversy from and after the time they were served with summons and copies of the complaint in said civil case — because of the allegations contained in par. 10 thereof. 7 [Emphasis by the Court]


18. That on December 5, 1964, herein petitioner filed his motion for reconsideration dated December 4, 1664 asking for the reconsideration of the order dated November 21, 1964, ....

19. That the motion for reconsideration was denied by the court, thru the respondent Judge, as per the order dated January 9, 1965, ....

Upon these facts, petitioner tries to make out before this Court a case of certiorari for grave abuse of discretion on the part of respondent Judge in dismissing the case on the basis of the compromise agreement of the parties, entered into at the back of petitioner notwithstanding the reservation made in his favor to file an action against both parties "with respect to his alleged attorney's fees", as well as a case of mandamus "to order and command the said respondent judge" to take cognizance of and resolve his opposition and counter-motion for the court to fix the compensation he should be paid. Unable to find any local precedent to support his position, he cites American authorities thus:

In the American jurisdiction, it would seem that, even without the specific provisions of the rules of court cited above, courts had always intervened, in the mere exercise of their inherent powers, to protect attorneys against collusive agreements or fraudulent settlements entered into by the parties in a case to cheat attorneys out of their costs or of their fees. Thus, it was held or had been stated in:

(a) Coughlin vs. N.Y. Cont. & H.R.R. Co., 71 N.Y. 443, 27 Am. Rep. 75.

... But since the time of Lord Mansfield, it has been the practice of courts to intervene to protect attorneys against settlement made to cheat them out of their costs. If an attorney has commenced an action, and his client settles it with the opposite party before judgment, collusively, to deprive him of his costs, the court will permit the attorney to go on with the suit for the purpose of collecting his costs. Swain v. Senate, 5 Bos. & Pul. 99; Cole v. Bennett, 6 Price, 15; Moore v. Cook, 13 Id. 473; Talcott v. Bronson, 4 Paige, 501; Rusquin v. The Knickerbocker Stage Col., 12 Abb. Pr 324; Ward v. Syme, 9 How. Pr. 16; McDonald v. Napier, 14 Ga. 89.

There are many cases where this had been allowed to be done. It is impossible to ascertain precisely when this practice commenced, nor how originated, nor upon what principle it was based. It was not upon the principle of a lien, because an attorney has no lien upon the cause of as it upon the action before judgment for his costs; nor was it upon principle that his services had produced the money paid his client upon the settlement, because that could not be known, and in fact no money may have been paid upon the settlement. So far as I can perceive, it was based upon no principle. It was a mere arbitrary exercise of power by the courts; not arbitrary in the sense that it was unjust or improper, but in the sense that it was not based upon any right or principle recognized in other cases. The parties being in court, and a suit commenced and pending, for the purpose of protecting attorneys who were their officers and subject to their control, the courts invented this practice and assumed this extraordinary power to defeat attempts to cheat the attorneys out of their costs. The attorney's fees were fixed in definite sums, easily determined by taxation and this power was exercised to secure them their fees. (pp. 76-77)

(b) Randall v. Van Wagenan et al., 22 N.E. 361, 362.lawphi1.nêt

... But where such settlement is made collusively for the purpose of defrauding the attorney out of his costs, courts have been accustomed to intervene, and to protect the attorney by permitting him to proceed with the suit, and, if he is able to establish a right to recover on the cause of action as it originally stood, to permit such recovery to the extent of his costs in the action. Coughlin v. Railroad Co., 71 N. Y. 443, and pages cited. And the court will set aside an order of discontinuance if it stands in the way. This is an adequate remedy, and we think the exclusive remedy where the suit has been fraudulently settled by the parties before judgment to cheat the attorney out of his costs. We have found no case of an equitable action to enforce the inchoate right of an attorney, under such circumstances, and no such precedent ought, we think, to be established.

(c) Jackson v. Stearns, et al., 43 Ore 25, 84 Pac. 798.

... Though a party may, without the consent of his attorney, make a bona fide adjustment with the adverse party, and dismiss an action or suit before a judgment or a decree has been rendered therein, if it appears, however, that such settlement was collusive and consummated pursuant to the intent of both parties to defraud the attorney, the court in which the action or suit was pending may interfere to protect him, as one of its officers,


by setting aside the order of dismissal and permitting him to proceed in the cause in the name of his client to final determination to ascertain what sum of money, or interest in the subject-matter, if any, is due him for his services when fully performed. Jones v. Morgage 99 Am. Dec. 458; Randall v. Van Wagenen (N.Y.) 22 N.E. 361, 12 Am. St. Rep. 828. (p. 800)

Before a court will set aside an order dismissing a suit or an action, made upon stipulation of the parties, without the consent of plaintiff's attorney, and allow the latter to proceed with the cause in the name of his client, to determine the amount of fees due him, it must appear that the defendant participated in the fraudulent intent to deprive the attorney of his compensation. Courtney v. McGavock, 25 Wis. 619. When no adequate consideration is given by the defendant for the settlement and discharge of an action or a suit, the insufficiency of the inducement to the contract affords evidence of his bad faith. Young v. Dearborn, 27 N.E. 324. It will be remembered that the complaint alleges that the value of the real property in question is $3,000.00, and that Stearns executed to Wilson a deed to the premises for a nominal consideration. This is a sufficient averment of the defendant's intent to deprive the plaintiff of his compensation thereby imputing to Wilson bad faith. (p. 800)

(d) Desaman v. Butler Bros., 188 Minn. 198, 136 N.W. 747.

We have recently held that a client has always the right to settle his cause of action and stop litigation at any stage of the proceeding, subject, however, to the right of the attorney to receive compensation for services rendered. Burho v. Camichael 135 N.W. 386. It is therefore contended by defendant that a litigant retains the unrestricted right to determine for what amount the cause of action may be settled, and, having so done, the lien of his attorney for services is measured by the amount determined on and actually settled for. Conceding, without deciding, that this may be true of any time prior to the rendition of a verdict in the action which the attorney has been employed to bring, we are of opinion that after verdict fixing the amount of a plaintiff's cause of action a secret and collusive compromise between parties litigant does not affect the amount of the attorney's lien...; but therein is also clearly indicated by Mr. Justice Brown that, if there be fraud and collusion to deprive the attorney of his lien, the settlement will not be permitted to accomplish such result. (p. 748)

To be sure, these authorities are quite persuasive, but contrary to petitioner's impression, there is already a precedent setting decision of this Court handed down way back in 1922 in a case very similar to his, that in Rustia vs. the Judge of the Court of First Instance of Batangas, et al., 44 Phil. 62. As it is very brief, it can be quoted in full:

This is a petition for a writ of certiorari, the petitioner alleging that the respondent Judge of the Court of First Instance exceeded his jurisdiction in dismissing a pending action at the instance of the parties but without the intervention of the attorney for the plaintiff in the case, the herein petitioner.

It appears from the record that on July 31, 1921, the respondent Justo Porcuna, for himself and on behalf of his wife, the respondent Rosa H. de Porcuna, by means of a written contract, retained the petitioner to represent them as their lawyer in case No. 1435 then pending in the Court of First Instance of Batangas and in which Rosa H. de Porcuna was the plaintiff and one Eulalia Magsombol was the defendant. The contract fixed the petitioner's fee at P200 in advance with an additional contingent fee of P1,300. It was also provided in the contract that Justo Porcuna should not compromise the claim against the defendant in the case without express consent of his lawyer, the herein petitioner.

After trial, the petitioner then being plaintiff's attorney of record, the Court of First Instance, under date of December 24, 1921, rendered judgment in favor of Justo Porcuna and Rosa H. de Porcuna ordering the defendant Eulalia Magsombol to return to them 602 pieces of cloth or in default thereof to pay to them the sum of P3,250. On January 14, 1922, Eulalia Magsombol filed her exception to the judgment and on the following day presented a motion for a new trial, which was denied on the 21st of the same month. She thereupon gave notice of appeal and presented a bill of exceptions which was approved on February 20, 1922. On March 2, 1922, and before the transmission of the bill of exceptions to this court, the plaintiffs presented the following motion in the Court of First Instance:

The plaintiffs, without any further intervention of their attorney, now appear before this Honorable Court and respectfully aver:

That, through Mr. Miguel Olgado they already settled this case with the herein defendant.


That the basis of the compromise is that we, the plaintiffs, finally agree that we should be paid the amount of eight hundred pesos (P800) in two installments; P300 to be paid on this same date, and the remaining five hundred pesos (P500) at the end of March, 1922.

That we, the plaintiffs, recognize not to have any further rights in this case than to the aforesaid amount of eight hundred pesos (P800) and that this is the total amount the defendant Eulalia Magsombol should pay us, and we have no right whatever to any other amount than the aforementioned.

That we have not sold to any other person our rights as plaintiffs in this case.

Wherefore, the plaintiffs respectfully request the dismissal of this case, without any pronouncement as to costs, and that the appeal interposed by the defendant be further dismissed.

Batangas, Batangas, P.I., March 2, 1922.

(Sgd) ROSA H. PORCUNA Plaintiff

JUSTO M. PORCUNA Plaintiff

The defendant, through her attorney, Jose Mayo Librea, having signified her assent to the motion, the Court of First Instance on the same day, March 2, dismissed the action without notice to counsel for the plaintiffs.

The petitioner alleges that he did not discover the dismissal of the action until April 4, 1922. After an unsuccessful effort to obtain a reconsideration of the order of dismissal from the trial court, he filed the present petition for a writ of certiorari. By resolution dated October 24, 1922, this court denied the petition and upon motion of the petitioner we shall now briefly state our reasons for such denial.

The burden of the petitioner's contention is (1) that he, as attorney of record, was entitled to notice of his client's motion to dismiss the case, and (2) that after the approval of the bill of exceptions the lower court had lost jurisdiction of the case and had no power to dismiss it. A moment's reflection should make it clear that neither of these propositions is tenable.

Both at the common law and under section 32 of the Code of Civil Procedure a client may dismiss his lawyer at any time or at any stage of the proceedings and there is nothing to prevent a litigant from appearing before the court to conduct his own litigation. (Sec. 34, Code of Civil Procedure.) The client has also an undoubted right to compromise a suit without the intervention of his lawyer.

Though there is a valid agreement for the payment to the attorney of a large proportion of the sum recovered in case of success this does not give the attorney such an interest in the cause of action that it prevents plaintiff from compromising the suit. (4 Cyc. 990, and authorities cited in Note 6; see also Louque vs. Dejan 129 La. 519; Price vs. Western Loan & Savings Co., 19 Am. Cas. 589 and Note.)

In the present instance the clients did nothing that they did not have a perfect right to do. By appearing personally and presenting a motion they impliedly dismissed their lawyer. The petitioner's contingent interests in the judgment rendered did not appear of record. Neither as a party in interest nor as and attorney was he therefore entitled to notice of the motion.


As to the second proposition that the court below could not dismiss the case after the bill of exceptions had been approved, it is very true that upon such approval the lower court loses its jurisdiction over all contentious matters connected with the issues in the case. But there is nothing to prevent all of the parties by agreement to withdraw the bill of exceptions with the consent of said court and resubmit the case to the jurisdiction of the court. That was all that was done in this case. A valid agreement between the parties to a case is the law of the case in everything covered by the agreement. (Civil Code, art. 1091; Compania General de Tabacos vs. Obed, 13 Phil. 391.) The petitioner might have protected his interests by entering an attorney's lien under section 37 of the Code of Civil Procedure.

The petition for a writ of certiorari was therefore properly denied. So ordered.

The difference We perceive, however, between petitioner's case, on the one hand, and that of Atty. Rustia, in the above decision, on the other, is that in the latter's case, neither the court nor the party adverse to his clients were aware of the exact agreement as to his fees, whereas in the case of petitioner, both the court and the other parties knew the terms of the contract for professional services between petitioner and his clients, the Magtibay brothers, because the written contract therefor, Annex A, was made part of the complaint, and none seriously disputes its authenticity. Besides, the court had already dismissed the case when Atty. Rustia raised the question of his fees before the court; in petitioner's instance, he opposed the motion to dismiss and pleaded with the court to protect his rights as officer of the court before the first order in question was issued by respondent judge. Were it not for these differences, We would have inclined towards denying the herein petition in line with the Rustia ruling that, in any event, certiorari is not the appropriate remedy, the American authorities cited by petitioner not withstanding.

Withal, there is another Philippine case which Us to sustain petitioner. In the case of Recto vs. Harden, 100 Phil. 440, Atty. Claro M. Recto found himself practically in the same situation as petitioner herein. After Atty. Recto had rendered services to Mrs. Esperanza P. de Harden in a protracted suit against her husband for the purposes of securing an increase of her and her daughter's monthly support, (the spouses were separated), to P10,000.00 and of protecting and preserving her rights in the properties of the conjugal partnership, which suit lasted from 1941 to 1949, and after the Court of First Instance of Manila had rendered a judgment favorable to Mrs. Harden acknowledging, inter alia, her rights to the assets of the conjugal partnership, which turned out to be P4,000,000, and awarding her a monthly support of P2,500, practically as prayed for in Atty. Recto's pleadings, while the case was already pending on appeal before this Court, Mrs. Harden and her husband, Mr. Fred Harden, entered into a compromise of their case, without the knowledge of Atty. Recto, whereby said spouses "purportedly agreed to settle their differences in consideration of the sum of P5,000 paid by Mr. Harden to Mrs. Harden, and a monthly pension of $500 to be paid by him to her; (2) Mr. Harden created a trust fund of $20,000 from which said monthly pension of $500 would be taken; and (3) Mr. and Mrs. Harden had mutually released and forever discharged each other from all actions, debts, duties, accounts, demands and claims to the conjugal partnership, in consideration of the sum of $1." (p. 435)

Whereupon Atty. Recto filed a motion with this Court praying that:

a) Pending the resolution of this motion, the receiver appointed herein be authorized to continue holding the properties above mentioned in his custody in order not to defeat the undersigned's inchoate lien on them;

b) A day set aside to receive the evidence of the undersigned and those of the plaintiff and the defendant Fred M. Harden, in order to determine the amount of fees due to the undersigned, by the appointment of a referee or commissioner for the reception of such evidence;

c) After due hearing, the undersigned be declared entitled to the sum of P400,000 as his fees for services rendered in behalf of the plaintiff in this case, under paragraph 3 of the contract, Annex "A" and to that end a charging lien therefore be established upon the properties above-mentioned;

d) And the receiver be ordered to pay to the undersigned the full amount of the fees to which the latter is found to be entitled.

This motion was objected to by Mr. Hardens counsel, who in turn, moved for the dismissal of the case, to which Atty. Recto objected. Under these circumstances, this Court acceded to Atty. Recto's prayer that the case be not dismissed, that the receivership be maintained except as to certain properties not material to mention here, and that the case be remanded to the lower court so that his fees may be determined and ordered paid. Upon the remand of the case to the lower court, a commissioner was appointed to hear the matter of the amount of the fees in question, and after the commissioner had submitted a report recommending the


payment to Atty. Recto of the 20,70 attorney's fees stipulated in the contract for his services, equivalent to P369,410.04, the court rendered judgment as follows:

The contingent fee to which the claimant is entitled under paragraph 3 of the contract, Exhibit JJJ or 20, is 20% of P1,920,554.85 or the sum of P384,110.97.

WHEREFORE, this Court hereby approves the recommendation of the Commissioner with the above-stated modification, and finds that Attorney Claro M. Recto is entitled to the sum of THREE HUNDRED EIGHTY-FOUR THOUSAND ONE HUNDRED AND TEN PESOS AND NINETY-SEVEN CENTAVOS (P384,110.97), representing 20% of Esperanza P. de Harden's share in the conjugal properties owned by her and her husband, Fred M. Harden, as contingent fee stipulated in paragraph 3 of the Contract of Professional Services, Exhibit JJJ or 20, and the said Esperanza P. de Harden is hereby ordered to pay the said amount above-stated.

On appeal from this judgment to this Court, the same was affirmed, the decision stating pertinently in part:

The last objection is based upon principles of equity, but, pursuant thereto, one who seeks equity must come with clean hands (Bastida et al. vs. Dy Buncio & Co., 93 Phil. 195; 30 C.J.S. 475), and appellants have not done so, for the circumstances surrounding the case show, to our satisfaction, that their aforementioned agreements, ostensibly for the settlement of the differences between husband and wife, were made for the purpose of circumventing or defeating the rights of herein appellee, under his above-quoted contract of services with Mrs. Harden. Indeed, having secured a judgment in her favor, acknowledging her rights to the assets of the conjugal partnership, which turned out to be worth almost P4,000,000 in addition to litis expensae in the sum of P175,000, it is inconceivable that Mrs. Harden would have waived such rights, as well as the benefits of all orders and judgments in her favor, in consideration of the paltry sum of $5,000 allegedly paid to her by Mr. Harden and the additional sum of $20,000 to be paid by him in installments, at the rate of $500 a month. In fact, no explanation has been given for this moat unusual avowed settlement between Mr. and Mrs. Harden. One can not even consider the possibility of a reconciliation between the spouses, the same being inconsistent with the monetary consideration for said alleged settlement. What is more, the records show that the relations between said spouses — which were bad indeed, not only in July, 1941, when Mrs. Harden engaged the services of the appellee, but, even, before, for Mr. and Mrs. Harden were separated since 1938 — had worsened considerably thereafter, as evidenced by an action for divorce filed by Mr. Harden in New Jersey, in July 1948, upon the ground of repeated acts of infidelity allegedly committed by Mrs. Harden in 1940 and 1941.

On the same considerations of equity, and for the better protection of lawyers, who, trusting in the good faith of their clients, render professional services on contingent basis, and so that it may not be said that this Court, sanctions in any way the questionable practice of clients of compromising their cases at the back of their counsel with the consequence that the stipulated contingent fees of the lawyer are either unreasonably reduced or even completely rendered without basis, as in this case — wherein the clients waived the whole of their rights in favor of their opponent after the latter had acknowledged, in effect, the correctness of said clients' contention — We have decided to grant the herein petition, in so far as the rights of petitioner have been prejudiced by the questioned compromise agreement. While We here reaffirm the rule that "the client has an undoubted right to compromise a suit without the intervention of his lawyer", 8 We hold that when such compromise is entered into in fraud of the lawyer, with intent to deprive him of the fees justly due him, the compromise must be subject to the said fees, and that when it is evident that the said fraud is committed in confabulation with the adverse party who had knowledge of the lawyer's contingent interest or such interest appears of record and who would benefit under such compromise, the better practice is to settle the matter of the attorney's fees in the same proceeding, after hearing all the affected parties and without prejudice to the finality of the compromise in so far as it does not adversely affect the rights of the lawyer. Surely, "the client cannot, by setting, compromising or dismissing his suit during its pendency, deprive the attorney of his compensation for the agreed amount, unless the lawyer consents to such settlement, compromise or dismissal", (Legal and Judicial Ethics by Martin, 1967 Rev. Ed p. 121) for the, attorney is or "Shall be entitled to have and recover from his client - a reasonable compensation (not more) for his services, with a view to the importance of the subject-matter of the controversy, the extent of the services rendered, and the professional standing of the attorney", (Sec. 24, Rule 138, on Attorney and Admission to Bar) albeit, under Canon 12 of the Canons of Professional Ethics, "in fixing fees, it should not be forgotten that the profession is a branch of the administration of justice and not a mere money-getting trade."

True it is also that "a client may, at anytime, dismiss his attorney or substitute another in his place", (Sec. 26, Rule 138) but it must be emphasized that the same provision, which is an incorporation of Republic Act 636 into the Rules of Court, also provides that "if the contract between client and attorney had been reduced to writing and the dismissal of the attorney was without justifiable cause, he shall be entitled to recover from the client full compensation ..." In the case at bar, by entering into the compromise agreement in question and even inserting therein a prayer to the court to dismiss their case filed by petitioner, (see Cases in Legal Ethics Bachelor of Laws 3A 150

footnote 6, ante) petitioner's clients impliedly dismissed him. (Rustia vs. the Court, etc., supra.) Such implied dismissal appears to Us to have been made without justifiable cause, none is urged anywhere in the record, and so, the above-quoted provision of Section 26, Rule 138 applies here. The terms of the compromise in question, as spelled out in Annex A of Annex I of the petition, indicate clearly that Aurelia Martinez, the defendant aunt in-law of petitioner's clients, acknowledged that the rights of said clients were practically as alleged by petitioner in the complaint he filed for them. In other words, through the services of petitioner, his clients secured, in effect, a recognition, which had been previously denied by their aunt-in-law, that they were entitled to a ¼ share in the estate left by their uncle. We hold that under these circumstances, and since it appears that said clients have no other means to pay petitioner, since they instituted their case as paupers, and that their aunt-in-law was aware of the terms of their contract of professional services with petitioner', said clients had no right to waive the portion of their such acknowledged rights in favor of their opponent to the extent that such waiver would prejudice the stipulated contingent interest of their lawyer and their aunt-in-law had no right to accept such waiver unqualified. The Civil Code enjoins that:

ART. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.

Under the circumstance extant in the record, it is clear that the compromise agreement in question falls short of the moral requirements of this quoted article of the Civil Code. If for this reason alone, it should not be allowed to prejudice the rights of petitioner. Accordingly, as all of these circumstances were presented to respondent judge before he issued the challenged order of dismissal and all the parties were heard thereon, it was incumbent upon His Honor, in equity and to avoid multiplicity of suits, particularly, because the amount claimed by petitioner is only P1,000.00, to have directly passed upon petitioner's claim, and not having done so, it would appear that the court a quo abused its discretion gravely enough to warrant the writ of certiorari herein prayed for in so far as the questioned orders prejudiced petitioner's right to the fees for the professional services which appear to have been creditably rendered by him. Respondents allege that the judgment of dismissal in question is already final because no appeal was taken therefrom, but since We hold that the same was rendered with enough grave abuse of discretion to warrant the certiorari prayed for, such alleged finality could not have materialized; obviously, petitioner could not have appealed, not being a party in the case.

IN VIEW OF THE FOREGOING, the orders of the respondent court dated November 21, 1964 and January 9, 1965 in Civil Case No. SC-525 are hereby set aside in so far as they prejudice the payment of petitioner's claim of attorney's fees in the form of either one-third of the ¼ share acknowledged as his clients in the compromise in question or P1,000.00, which should constitute as a lien on the said share, in spite of the waiver thereof in favor of respondent Aurelia Martinez. It is unnecessary to consider the petition for mandamus. Costs against, private respondents.



Manila

SECOND DIVISION

Adm. Case No. 5020 December 18, 2001

ROSARIO JUNIO, complainant, vs.ATTY. SALVADOR M. GRUPO, respondent.

MENDOZA, J.:

This is a complaint for disbarment filed against Atty. Salvador M. Grupo for malpractice and gross misconduct.

Complainant Rosario N. Junio alleged that —


3. Sometime in 1995, [she] engaged the services of [respondent], then a private practitioner, for the redemption of a parcel of land covered by Transfer Certificate of Title No. 20394 registered in the name of her parents, spouses Rogelio and Rufina Nietes, and located at Concepcion, Loay, Bohol.

4. On 21 August 1995, [complainant] entrusted to [respondent] the amount of P25,000.00 in cash to be used in the redemption of the aforesaid property. Respondent received the said amount as evidenced by an acknowledgment receipt, a copy of which is being hereto attached as Annex "A".

5. Notwithstanding the foregoing and for no valid reason, respondent did not redeem the property; as a result of which the right of redemption was lost and the property was eventually forfeited.

6. Because of respondent's failure to redeem the property, complainant had demanded [the] return of the money which she entrusted to the former for the above-stated purpose.

7. Despite repeated demands made by the complainant and without justifiable cause, respondent has continuously refused to refund the money entrusted to him.1

In his Answer, petitioner admitted receiving the amount in question for the purpose for which it was given. However, he alleged that —

6. The subject land for which the money of complainant was initially intended to be applied could really not be redeemed anymore . .;

7. Complainant knew the mortgage agreement between her parents and the mortgage-owner had already expired, and what respondent was trying to do was a sort of [a] desperate, last-ditch attempt to persuade the said mortgagee to relent and give back the land to the mortgagors with the tender of redemption; but at this point, the mortgagee simply would not budge anymore. For one reason or another, he would no longer accept the sum offered;

8. By the time that complainant was to return to Manila, it was already a foregone matter that respondent's efforts did not succeed. And so, when transaction failed, respondent requested the complainant that he be allowed, in the meantime, to avail of the money because he had an urgent need for some money himself to help defray his children's educational expenses. It was really a personal request, a private matter between respondent and complainant, thus, respondent executed a promissory note for the amount, a copy of which is probably still in the possession of the complainant.

9. . . . [T]he family of the complainant and that of the respondent were very close and intimate with each other. Complainant, as well as two of her sisters, had served respondent's family as household helpers for many years when they were still in Manila, and during all those times they were treated with respect, affection, and equality. They were considered practically part of respondent's own family.

That is why, when complainant requested . . . assistance regarding the problem of the mortgaged property which complainant wanted to redeem, respondent had no second-thoughts in extending a lending hand . . . .

Respondent did not ask for any fee. His services were purely gratuitous; his acts [were] on his own and by his own. It was more than pro bono; it was not even for charity; it was simply an act of a friend for a friend. It was just lamentably unfortunate that his efforts failed.

xxx xxx xxx

Of course, respondent accepts his fault, because, indeed, there were occasions when complainant's sisters came to respondent to ask for the payment in behalf of complainant, and he could not produce the money because the circumstances somehow, did not allow it. [I]t does not mean that respondent will not pay, or that he is that morally depraved as to wilfully and deliberately re[nege] in his obligation towards the complainant.2

Complainant filed a reply denying that respondent informed her of his failure to redeem the property and that respondent requested her to instead lend the money to him.3


The case was thereafter referred to the Integrated Bar of the Philippines (IBP) for investigation, report, and recommendation. However, while two hearings were set for this purpose, both were postponed at the instance of respondent. For this reason, on August 28, 2000, complainant asked the Investigating Commissioner4 to consider the case submitted for decision on the basis of the pleadings theretofore filed. Respondent was required to comment on complainant's motion, but he failed to do so. Consequently, the case was considered submitted for resolution.

In his report, dated January 5, 2001, the Investigating Commissioner found respondent liable for violation of Rule 16.04 of the Code of Professional Responsibility which forbids lawyers from borrowing money from their clients unless the latter's interests are "protected by the nature of the case or by independent advice." The Investigating Commissioner found that respondent failed to pay his client's money. However, in view of respondent's admission of liability and "plea for magnanimity," the Investigating Commissioner recommended that respondent be simply reprimanded and ordered to pay the amount of P25,000.00 loan plus interest at the legal rate.

In its Resolution No. XIV-2001-183, dated April 29, 2001, the IBP Board of Governors adopted and approved the Investigating Commissioner's findings. However, it ordered —

[R]espondent . . . suspended indefinitely from the practice of law for the commission of an act which falls short of the standard of the norm of conduct required of every attorney and . . . ordered [him] to return to the complainant the amount of P25,000.00 plus interest at the legal rate from the time the said amount was misappropriated, until full payment; provided that the total suspension shall be at least one (1) year from the date of said full payment

On July 4, 2001, respondent filed a motion for reconsideration alleging that —

(a) there was no actual hearing of the case wherein respondent could have fully ventilated and defended his position;

(b) the subject Resolution gravely modified the Report and Recommendation of the Trial Commissioner, Hon. Pedro Magpayo, Jr., . . . such that the resultant sanctions that are ordered imposed are too leonine, unjust and cruel;

(c) that the factual circumstances attending the matter which gave rise to the complaint were not rightly or fairly appreciated.5

He argues that the Court should adopt the report and recommendation of the IBP Investigating Commissioner.

In its resolution of August 15, 2001, the Court resolved to treat respondent's motion for reconsideration as a petition for review of IBP Resolution No. XIV 2001-183 and required complainant to comment on the petition.

In her comment, complainant states that her primary interest is to recover the amount of P25,000.00 with interest and that she is leaving it to the Court to decide whether respondent deserves the penalty recommended by the IBP.6

The Court resolves to partially grant the petition. In his report and recommendation, Investigating Commissioner Magpayo, Jr. made the following findings:

In his Answer, the respondent ADMITS all the allegations in paragraph 4 of the complaint which avers:

4. On 21 August 1995, complainant entrusted to respondent the amount of P25,000.00 in cash to be used in the redemption of the aforesaid property (parcel of land covered by TCT No. 20394 registered in the name of complainant's parents located at Concepcion, Loay, Bohol). Respondent received the said amount as evidenced by an acknowledgment receipt (Annex A).

By way of confession and avoidance, the respondent, . . . however, contended that when the mortgagee refused to accept the sum tendered as the period of redemption had already expired, he requested the complainant to allow him in the meantime to use the money for his children's educational expenses[,] to which request the complainant allegedly acceded and respondent even executed a promissory note (please see 4th par. of Annex "B" of complaint).

Respondent takes further refuge in the intimate and close relationship existing between himself and the complainant's family on the basis of which his legal services were purely gratuitous or "simply an act of a friend for a friend" with "no


consideration involved." Unfortunately, his efforts to redeem the foreclosed property, as already stated, did not produce the desired result because the mortgagee "would not budge anymore" and "would not accept the sum offered."

Thus, the respondent concluded that there was, strictly speaking, no attorney-client [relationship] existing between them. Rather, right from the start[,] everything was sort of personal, he added.

Granting to the respondent the benefit of the doubt, we shall assume that there was in reality a loan in the amount of P25,000.00. This is likewise confirmed by the execution of a promissory note on 12 December 1996 by the respondent who "undertook to pay Mrs. Junio on or before January 1997" (Annex B of complaint). Moreover, the demand letter of 12 March 1998 (Annex B) mentions of "reimbursement of the sum received" and interest of "24% per annum until fully paid" giving the impression that the funds previously intended to be used for the repurchase of a certain property (Annex A of complaint) was converted into a loan with the consent of the complainant who gave way to the request of the respondent "to help defray his children's educational expenses" (par. 8 of Answer).

Be that as it may, the duty and obligation to repay the loan remains unshaken. Having utilized the sum to fulfill his "urgent need for some money," it is but just and proper that he return the amount borrowed together with interest.

Five (5) years had already passed since respondent retained the cash for his own personal use. But notwithstanding the same and his firm promise "to pay Mrs. Junio on or before January 1997" he has not demonstrated any volition to settle his obligation to his creditor[,] although admittedly "there w[ere] occasions when complainant's sister came to respondent to ask for the payment in behalf of complainant," worse, "the passage of time made respondent somehow forgot about the obligation."

A lawyer shall not borrow money from his client unless the client's interests are fully protected by the nature of the case or by independent advice (Rule 16.04, Code of Professional Responsibility). This rule is intended to prevent the lawyer from taking advantage of his influence over the client.

This rule is especially significant in the instant case where the respondent enjoys an immense ascendancy over the complainant who, "as well as two of his sisters, had served respondent's family as household helpers for many years."

Having gained dominance over the complainant by virtue of such long relation of master and servant, the respondent took advantage of his influence by not returning the money entrusted to him. Instead, he imposed his will on the complainant and borrowed her funds without giving adequate security therefor and mindless of the interest of the complainant

In the light of the foregoing, . . . respondent has committed an act which falls short of the standard of the norm of conduct required of every attorney. If an ordinary borrower of money is required by the law to repay the loan failing which he may be subjected to court action, it is more so in the case of a lawyer whose conduct serves as an example.7

It would indeed appear from the records of the case that respondent was allowed to borrow the money previously entrusted to him by complainant for the purpose of securing the redemption of the property belonging to complainant's parents. Respondent, however, did not give adequate security for the loan and subsequently failed to settle his obligation. Although complainant denied having loaned the money to respondent, the fact is that complainant accepted the promissory note given her by respondent on December 12,1996. In effect, complainant consented to and ratified respondent's use of the money. It is noteworthy that complainant did not attach this promissory note to her complaint nor explain the circumstances surrounding its execution. She only mentioned it in her demand letter of March 12, 1998 (Annex B), in which she referred to respondent's undertaking to pay her the P25,000.00 on or before January 1997. Under the circumstances and in view of complainant's failure to deny the promissory note, the Court is constrained to give credence to respondent's claims that the money previously entrusted to him by complainant was later converted into a loan.

Respondent's liability is thus not for misappropriation or embezzlement but for violation of Rule 16.04 of the Code of Professional Responsibility which forbids lawyers from borrowing money from their clients unless the latter's interests are protected by the nature of the case or by independent advice. In this case, respondent's liability is compounded by the fact that not only did he not give any security for the payment of the amount loaned to him but that he has also refused to pay the said amount. His claim that he could not pay the loan "because circumstances . . . did not allow it" and that, because of the passage of time, "he somehow forgot about his obligation" only underscores his blatant disregard of his obligation which reflects on his honesty and candor. A lawyer is bound to observe candor, fairness, and loyalty in all his dealings and transactions with his client.8


Respondent claims that complainant is a close personal friend and that in helping redeem the property of complainant's parents, he did not act as a lawyer but as a friend, hence there is no client-attorney relationship between them. This contention has no merit. As explained in Hilado v. David,9

To constitute professional employment it is not essential that the client should have employed the attorney professionally on any previous occasion . . . It is not necessary that any retainer should have been paid. promised, or charged for; neither is it material that the attorney consulted did not afterward undertake the case about which the consultation was had. If a person, in respect to his business affairs or troubles of any kind, consults with his attorney in his professional capacity with the view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces in such consultation, then the professional employment must be regarded as established . . .

Considering the foregoing, the Investigating Commissioner's recommendation to impose on respondent the penalty of reprimand and restitution of the amount loaned by him is clearly inadequate. On the other hand, the penalty of indefinite suspension with restitution imposed by the IBP Board of Governors is too harsh in view of respondent's apparent lack of intent to defraud complainant and of the fact that this appears to be his first administrative transgression. It is the penalty imposed in Igual v. Javier10 which applies to this case. In that case, this Court ordered the respondent suspended for one month from the practice of law and directed him to pay the amount given him by his clients within 30 days from notice for his failure to return the money in question notwithstanding his admission that he did not use the money for the filing of the appellee's brief, as agreed by them, because of an alleged quarrel with his clients.

Anent petitioner's allegation regarding the lack of hearing during the IBP investigation, suffice it to say that he waived such right when he failed to comment on petitioner's motion to submit the case for resolution on the basis of the pleadings theretofore filed despite due notice to him, not to mention the fact that it was he who had requested the postponement of the two hearings scheduled by the Investigating Commissioner.

WHEREFORE, the Court finds petitioner guilty of violation of Rule 16.04 of the Code of Professional Responsibility and orders him suspended from the practice of law for a period of one (1) month and to pay to respondent, within 30 days from notice, the amount of P25,000.00 with interest at the legal rate, computed from December 12, 1996.

SO ORDERED.



Manila

FIRST DIVISION

A.C. No. 7023 March 30, 2006

BUN SIONG YAO, Complainant, vs.ATTY. LEONARDO A. AURELIO, Respondent.

D E C I S I O N


On November 11, 2004, a complaint-affidavit1 was filed against Atty. Leonardo A. Aurelio by Bun Siong Yao before the Integrated Bar of the Philippines (IBP) seeking for his disbarment for alleged violations of the Code of Professional Responsibility.



The complainant alleged that since 1987 he retained the services of respondent as his personal lawyer; that respondent is a stockholder and the retained counsel of Solar Farms & Livelihood Corporation and Solar Textile Finishing Corporation of which complainant is a majority stockholder; that complainant purchased several parcels of land using his personal funds but were registered in the name of the corporations upon the advice of respondent; that respondent, who was also the brother in-law of complainant’s wife, had in 1999 a disagreement with the latter and thereafter respondent demanded the return of his investment in the corporations but when complainant refused to pay, he filed eight charges for estafa and falsification of commercial documents against the complainant and his wife and the other officers of the corporation; that respondent also filed a complaint against complainant for alleged non-compliance with the reportorial requirements of the Securities and Exchange Commission (SEC) with the Office of the City Prosecutor of Mandaluyong City and another complaint with the Office of the City Prosecutor of Malabon City for alleged violation of Section 75 of the Corporation Code; that respondent also filed a similar complaint before the Office of the City Prosecutor of San Jose Del Monte, Bulacan.

Complainant alleged that the series of suits filed against him and his wife is a form of harassment and constitutes an abuse of the confidential information which respondent obtained by virtue of his employment as counsel. Complainant argued that respondent is guilty of representing conflicting interests when he filed several suits not only against the complainant and the other officers of the corporation, but also against the two corporations of which he is both a stockholder and retained counsel.

Respondent claimed that he handled several labor cases in behalf of Solar Textile Finishing Corporation; that the funds used to purchase several parcels of land were not the personal funds of complainant but pertain to Solar Farms & Livelihood Corporation; that since 1999 he was no longer the counsel for complainant or Solar Textile Finishing Corporation; that he never used any confidential information in pursuing the criminal cases he filed but only used those information which he obtained by virtue of his being a stockholder.

He further alleged that his requests for copies of the financial statements were ignored by the complainant and his wife hence he was constrained to file criminal complaints for estafa thru concealment of documents; that when he was furnished copies of the financial statements, he discovered that several parcels of land were not included in the balance sheet of the corporations; that the financial statements indicated that the corporations suffered losses when in fact it paid cash dividends to its stockholders, hence, he filed additional complaints for falsification of commercial documents and violation of reportorial requirements of the SEC.

On July 19, 2005, the Investigating Commissioner2 submitted a Report and Recommendation3 finding that from 1987 up to 1999, respondent had been the personal lawyer of the complainant and incorporator and counsel of Solar Farms & Livelihood Corporation. However, in 1999 complainant discontinued availing of the services of respondent in view of the admission of his (complainant’s) son to the bar; he also discontinued paying dividends to respondent and even concealed from him the corporations’ financial statements which compelled the respondent to file the multiple criminal and civil cases in the exercise of his rights as a stockholder.

The investigating commissioner further noted that respondent is guilty of forum shopping when he filed identical charges against the complainant before the Office of the City Prosecutor of Malabon City and in the Office of the City Prosecutor of San Jose del Monte, Bulacan. It was also observed that respondent was remiss in his duty as counsel and incorporator of both corporations for failing to advise the officers of the corporation, which he was incidentally a member of the Board of Directors, to comply with the reportorial requirements of the SEC and the Bureau of Internal Revenue. Instead, he filed cases against his clients, thereby representing conflicting interests.

The investigating commissioner recommended that respondent be suspended from the practice of law for a period of six months4 which was adopted and approved by the IBP Board of Governors.

We agree with the findings and recommendation of the IBP.

We find that the professional relationship between the complainant and the respondent is more extensive than his protestations that he only handled isolated labor cases for the complainant’s corporations. Aside from being the brother-in-law of complainant’s wife, it appears that even before the inception of the companies, respondent was already providing legal services to the complainant, thus:

COMM. NAVARRO:

Was there a formal designation or you where only called upon to do so?





ATTY. AURELIO:

Well, I understand in order to show to the employees that they have labor lawyer and at that time I went to the office at least half day every week but that was cut short. And so when there are cases that crop-up involving labor then they called me up.

x x x x

ATTY. OLEDAN:

Will counsel deny that he was the personal lawyer of the complainant long before he joined the company?

ATTY. AURELIO:

Yes, with respect to the boundary dispute between his land and his neighbor but the subject matter of all the cases I filed they all revolved around the Financial Statement of the 2 corporations. I never devolves any information with respect to labor cases and the MERALCO case with respect to boundary dispute, nothing I used.

ATTY. OLEDAN:

Was he not also the lawyer at that time of complainant when he incorporated the second corporation in 1992?

ATTY. AURELIO:

Well, I was the one submitted the corporate papers and I think after that I have nothing to do with the SEC requirements regarding this corporation. Just to submit the incorporation papers to the SEC and anyway they have already done that before. They have already created or established the first corporation way back before the second corporation started and there was no instance where I dealt with the Financial Statement of the corporation with respect to its filing with the SEC.

ATTY. OLEDAN:

My only question is whether he incorporated and therefore was aware of the corporate matters involving Solar Farms?

ATTY. AURELIO:

As a stockholder I’m aware.

ATTY. OLEDAN:

As a lawyer?

ATTY. AURELIO:

Well, as a stockholder I’m aware.

x x x x

ATTY. OLEDAN:

You are not the one who filed….

ATTY. AURELIO:

I was the one who filed the corporate paper but that’s all the participation I had with respect to the requirement of the SEC with respect to the corporation.


COMM. NAVARRO:

So, you acted as legal counsel of the corporation even before the initial stage of the incorporation?

ATTY. AURELIO:

There are two (2) corporations involving in this case, Your Honor, and the first was I think Solar Textile and this was….

COMM. NAVARRO:

You were already the legal counsel?

ATTY. AURELIO:

No, this was created before I became a stockholder.

COMM. NAVARRO:

Who was then the legal counsel before of Solar?

MR. YAO:

Siya pa rin pero hindi pa siya stockholder.

ATTY. OLEDAN:

Because, Your Honor, he happens to be the brother-in-law of the wife of the complainant and he is the husband of the wife of her sister so that’s why he was… (inaudible)… other legal matters even before the corporation that was formed and he became also a stockholder and in fact he charge the corporation certain amounts for professional service rendered it is part of the Resolution of the Office of the City Prosecutor of Malabon as annex to the complaint so he cannot say that he only presented, that he only filed the papers at SEC and aside from that when the corporation, the Solar Farms was already formed and the property which he is now questioning was purchased by complainant. He was the one who negotiated with the buyer, he was always with the complainant and precisely acted as complainant’s personal lawyer. The truth of the matter he is questioning the boundary and in fact complainant had survey conducted in said parcel of land which he bought with the assistance and legal advice of respondent and in fact complainant gave him only a copy of that survey. Him alone. And he used this particular copy to insists that this property allegedly belong to the corporation when in truth and in fact he was fully aware that it was the complainant’s personal funds that were used to pay for the whole area and this was supported by the stockholders who admitted that they were aware that the parcel of land which he claims does not appear in the Financial Statement of the corporation was purchased by the complainant subject to reimbursement by the Board and should the corporation finally have sufficient fund to cover the payment advance by complainant then the property will be transferred to the corporation. All of these facts he was privy to it, Your Honor, so he cannot say that and he is also a stockholder but the fact is, prior to the incorporation and during the negotiation he was the personal counsel of the complainant.5

It appears that the parties’ relationship was not just professional, but they are also related by affinity. The disagreement between complainant’s wife and the respondent affected their professional relationship. Complainant’s refusal to disclose certain financial records prompted respondent to retaliate by filing several suits.

It is essential to note that the relationship between an attorney and his client is a fiduciary one. 6 Canon 17 of the Code of Professional Responsibility provides that a lawyer owes fidelity to the cause of his client and shall be mindful of the trust and confidence reposed on him. The long-established rule is that an attorney is not permitted to disclose communications made to him in his professional character by a client, unless the latter consents. This obligation to preserve the confidences and secrets of a client arises at the inception of their relationship. The protection given to the client is perpetual and does not cease with the termination of the litigation, nor is it affected by the party's ceasing to employ the attorney and retaining another, or by any other change of relation between them. It even survives the death of the client.7





Notwithstanding the veracity of his allegations, respondent’s act of filing multiple suits on similar causes of action in different venues constitutes forum-shopping, as correctly found by the investigating commissioner. This highlights his motives rather than his cause of action. Respondent took advantage of his being a lawyer in order to get back at the complainant. In doing so, he has inevitably utilized information he has obtained from his dealings with complainant and complainant’s companies for his own end.

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 Lawyers cannot be allowed to exploit their profession for the purpose of exacting vengeance or as a tool for instigating hostility against any person—most especially against a client or former client. As we stated in Marcelo v. Javier, Sr.:9

A lawyer shall at all times uphold the integrity and dignity of the legal profession. The trust and confidence necessarily reposed by clients require in the attorney a high standard and appreciation of his duty to his clients, his profession, the courts and the public. The bar should maintain a high standard of legal proficiency as well as of honesty and fair dealing. Generally speaking, a lawyer can do 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, nothing should be done by any member of the legal fraternity which might tend to lessen in any degree the confidence of the public in the fidelity, honesty and integrity of the profession.10 (Emphasis supplied)

In sum, we find that respondent's actuations amount to a breach of his duty to uphold good faith and fairness, sufficient to warrant the imposition of disciplinary sanction against him.

WHEREFORE, respondent Atty. Leonardo A. Aurelio is ordered SUSPENDED from the practice of law for a period of SIX (6) MONTHS effective upon receipt of this Decision. Let a copy of this Decision be furnished the Office of the Bar Confidant and the Integrated Bar of the Philippines. The Court Administrator is directed to circulate this order of suspension to all courts in the country.

SO ORDERED.



Manila

FIRST DIVISION


VERONICA S. SANTIAGO, BENJAMIN Q. HONTIVEROS, MR. SOCORRO F. MANAS, and TRINIDAD NORDISTA, complainants, vs.ATTY. AMADO R. FOJAS, respondent.

DAVIDE JR., J.:





In their letter of 8 September 1993, the complainants, former clients of the respondent, pray that the latter be disbarred for "malpractice, neglect and other offenses which may be discovered during the actual investigation of this complaint." They attached thereto an Affidavit of Merit wherein they specifically allege:

1. That we are Defendants-Appellates [sic] in the Court of Appeals Case No. CA-G.N. CV No. 38153 of which to our surprise lost unnecessarily the aforesaid Petition [sic]. A close perusal of the case reveals the serious misconduct of our attorney on record, Atty. Amado Fojas tantamount to malpractice and negligence in the performance of his duty obligation to us, to defend us in the aforesaid case. That the said attorney without informing us the reason why and riding high on the trust and confidence we repose on him either abandoned, failed to act accordingly, or seriously neglected to answer the civil complaint against us in the sala of Judge Teresita Capulong Case No. 3526-V-91 Val. Metro Manila so that we were deduced [sic] in default.

2. That under false pretenses Atty. Fojas assured us that everything was in order. That he had already answered the complaint so that in spite of the incessant demand for him to give us a copy he continued to deny same to us. Only to disclose later that he never answered it after all because according to him he was a very busy man. Please refer to Court of Appeals decision dated August 17, 1993.

3. That because of Atty. Amado Foja's neglect and malpractice of law we lost the Judge Capulong case and our appeal to the Court of Appeals. So that it is only proper that Atty. Fojas be disciplined and disbarred in the practice of his profession.

In his Comment, the respondent admits his "mistake" in failing to file the complainants' answer in Civil Case No. 3526-V-91, but he alleges that it was cured by his filing of a motion for reconsideration, which was unfortunately denied by the court. He asserts that Civil Case No. 3526-V-91 was a "losing cause" for the complainants because it was based on the expulsion of the plaintiff therein from the Far Eastern University Faculty Association (FEUFA) which was declared unlawful in the final decision in NCR-OD-M-90-10-050. Thus, "[t]he unfavorable judgment in the Regional Trial Court is not imputable to [his] mistake but rather imputable to the merits of the case, i.e., the decision in the Expulsion case wherein defendants (complainants herein) illegally removed from the union (FEUFA) membership Mr. Paulino Salvador. . . ." He further claims that the complainants filed this case to harass him because he refused to share his attorney's fees in the main labor case he had handled for them. The respondent then prays for the dismissal of this complaint for utter lack of merit, since his failure to file the answer was cured and, even granting for the sake of argument that such failure amounted to negligence, it cannot warrant his disbarment or suspension from the practice of the law profession.

The complainants filed a Reply to the respondent's Comment.

Issues having been joined, we required the parties to inform us whether they were willing to submit this case for decision on the basis of the pleadings they have filed. In their separate compliance, both manifested in the affirmative.

The facts in this case are not disputed.

Complainants Veronica Santiago, Benjamin Hontiveros, Ma. Socorro Manas, and Trinidad Nordista were the President, Vice-President, Treasurer, and Auditor, respectively, of the FEUFA. They allegedly expelled from the union Paulino Salvador. The latter then commenced with the Department of Labor and Employment (DOLE) a complaint (NCR-OD-M-90-10-050) to declare illegal his expulsion from the union.

In his resolution of 22 November 1990, Med-Arbiter Tomas Falconitin declared illegal Salvador's expulsion and directed the union and all its officers to reinstate Salvador's name in the roll of union members with all the rights and privileges appurtenant thereto. This resolution was affirmed in toto by the Secretary of Labor and Employment.

Subsequently, Paulino Salvador filed with the Regional Trial Court (RTC) of Valenzuela, Metro Manila, Branch 172, a complaint against the complainants herein for actual, moral, and exemplary damages and attorney's fees, under Articles 19, 20, and 21 of the Civil Code. The case was docketed as Civil Case No. 3526-V-91.

As the complainants' counsel, the respondent filed a motion to dismiss the said case on grounds of (1) res judicataby virtue of the final decision of the Med-Arbiter in NCR-OD-M-90-10-050 and (2) lack of jurisdiction, since what was involved was an intra-union issue cognizable by the DOLE. Later, he filed a supplemental motion to dismiss.


The trial court, per Judge Teresita Dizon-Capulong, granted the motion and ordered the dismissal of the case. Upon Salvador's motion for reconsideration, however, it reconsidered the order of dismissal, reinstated the case, and required the complainants herein to file their answer within a nonextendible period of fifteen days from notice.

Instead of filing an answer, the respondent filed a motion for reconsideration and dismissal of the case. This motion having been denied, the respondent filed with this Court a petition for certiorari, which was later referred to the Court of Appeals and docketed therein as CA-G.R. SP No. 25834.

Although that petition and his subsequent motion for reconsideration were both denied, the respondent still did not file the complainants' answer in Civil Case No. 3526-V-91. Hence, upon plaintiff Salvador's motion, the complainants were declared in default, and Salvador was authorized to present his evidence ex-parte.

The respondent then filed a motion to set aside the order of default and to stop the ex-parte reception of evidence before the Clerk of Court, but to no avail.

Thereafter, the trial court rendered a decision ordering the complainants herein to pay, jointly and severally, plaintiff Salvador the amounts of P200,000.00 as moral damages; P50,000.00 as exemplary damages or corrective damages; and P65,000.00 as attorney's fees; plus cost of suit.

The complainants, still assisted by the respondent, elevated the case to the Court of Appeals, which, however, affirmed in toto the decision of the trial court.

The respondent asserts that he was about to appeal the said decision to this Court, but his services as counsel for the complainants and for the union were illegally and unilaterally terminated by complainant Veronica Santiago.

The core issue that presents itself is whether the respondent committed culpable negligence, as would warrant disciplinary action, in failing to file for the complainants an answer in Civil Case No. 3526-V-91 for which reason the latter were declared in default and judgment was rendered against them on the basis of the plaintiff's evidence, which was received ex-parte.

It is axiomatic that no lawyer is obliged to act either as adviser or advocate for every person who may wish to become his client. He has the right to decline employment, 1 subject, however, to Canon 14 of the Code of Professional Responsibility. Once he agrees to take up the cause of a client, the lawyer owes fidelity to such cause and must always be mindful of the trust and confidence reposed in him. 2 He must serve the client with competence and diligence, 3 and champion the latter's cause with wholehearted fidelity, care, and devotion. 4Elsewise stated, he owes entire devotion to the interest of the 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. 5 This simply means that 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. 6 If much is demanded from an attorney, it is because the entrusted privilege to practice law carries with it the correlative duties not only to the client but also to the court, to the bar, and to the public. A lawyer who performs his duty with diligence and candor not only protects the interest of his client; he also serves the ends of justice, does honor to the bar, and helps maintain the respect of the community to the legal profession. 7

The respondent admits that it was his duty to file an answer in Civil Case No. 3526-V-91. He justifies his failure to do so in this wise:

[I]n his overzealousness to question the Denial Order of the trial court, 8 [he] instead, thru honest mistake and excusable neglect, filed a PETITION FOR CERTIORARI with the Honorable Court, docketed as G.R. No. 100983. . . .

And, when the Court of Appeals, to which G.R. No. 100983 was referred, dismissed the petition, he again "inadvertently" failed to file an answer "[d]ue to honest mistake and because of his overzealousness as stated earlier. . . . "

In their Reply, the complainants allege that his failure to file an answer was not an honest mistake but was "deliberate, malicious and calculated to place them on the legal disadvantage, to their damage and prejudice" for, as admitted by him in his motion to set aside the order of default, his failure to do so was "due to volume and pressure of legal work." 9 In short, the complainants want to impress upon this Court that the respondent has given inconsistent reasons to justify his failure to file an answer.


We agree with the complainants. In his motion for reconsideration of the default order, the respondent explained his non-filing of the required answer by impliedly invoking forgetfulness occasioned by a large volume and pressure of legal work, while in his Comment in this case he attributes it to honest mistake and excusable neglect due to his overzealousness to question the denial order of the trial court.

Certainly, "overzealousness" on the one hand and "volume and pressure of legal work" on the other are two distinct and separate causes or grounds. The first presupposes the respondent's full and continuing awareness of his duty to file an answer which, nevertheless, he subordinated to his conviction that the trial court had committed a reversible error or grave abuse of discretion in issuing an order reconsidering its previous order of dismissal of Salvador's complaint and in denying the motion to reconsider the said order. The second ground is purely based on forgetfulness because of his other commitments.

Whether it be the first or the second ground, the fact remains that the respondent did not comply with his duty to file an answer in Civil Case No. 3526-V-91. His lack of diligence was compounded by his erroneous belief that the trial court committed such error or grave abuse of discretion and by his continued refusal to file an answer even after he received the Court of Appeals' decision in the certiorari case. There is no showing whatsoever that he further assailed the said decision before this Court in a petition for review under Rule 45 of the Rules of Court to prove his claim of overzealousness to challenge the trial court's order. Neither was it shown that he alleged in his motion to lift the order of default that the complainants had a meritorious defense. 10 And, in his appeal from the judgment by default, he did not even raise as one of the errors of the trial court either the impropriety of the order of default or the court's grave abuse of discretion in denying his motion to lift that order.

Pressure and large volume of legal work provide no excuse for the respondent's inability to exercise due diligence in the performance of his duty to file an answer. Every case a lawyer accepts deserves his full attention, diligence, skill, and competence, regardless of its importance and whether he accepts it for a fee or for free.

All told, the respondent committed a breach of Canon 18 of the Code of Professional Responsibility which requires him to serve his clients, the complainants herein, with diligence and, more specifically, Rule 18.03 thereof which provides: "A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable."

The respondent's negligence is not excused by his claim that Civil Case No. 3526-V-91 was in fact a "losing cause" for the complainants since the claims therein for damages were based on the final decision of the Med-Arbiter declaring the complainants' act of expelling Salvador from the union to be illegal. This claim is a mere afterthought which hardly persuades us. If indeed the respondent was so convinced of the futility of any defense therein, he should have seasonably informed the complainants thereof. Rule 15.05, Canon 15 of the Code of Professional Responsibility expressly provides:

A lawyer, when advising his client, shall give a candid and honest opinion on the merits and probable results of the client's case, neither overstating nor understanding the prospects of the case.

Then too, if he were unconvinced of any defense, we are unable to understand why he took all the trouble of filing a motion to dismiss on the grounds of res judicata and lack of jurisdiction and of questioning the adverse ruling thereon initially with this Court and then with the Court of Appeals, unless, of course, he meant all of these to simply delay the disposition of the civil case. Finally, the complainants were not entirely without any valid or justifiable defense. They could prove that the plaintiff was not entitled to all the damages sought by him or that if he were so, they could ask for a reduction of the amounts thereof.

We do not therefore hesitate to rule that the respondent is not free from any blame for the sad fate of the complainants. He is liable for inexcusable negligence.

WHEREFORE, ATTY. AMADO R. FOJAS is hereby REPRIMANDED and ADMONISHED to be, henceforth, more careful in the performance of his duty to his clients.

SO ORDERED.




Manila

FIRST DIVISION

A.C. No. 7813 April 21, 2009

CARLITO P. CARANDANG, Complainant, vs.ATTY. GILBERT S. OBMINA, Respondent.

D E C I S I O N

CARPIO, J.:

The Case


This is a complaint filed by Carlito P. Carandang (Carandang) against Atty. Gilbert S. Obmina (Atty. Obmina). Atty. Obmina was counsel for Carandang in Civil Case No. B-5109 entitled "Sps. Emilia A. Carandang and Carlito Carandang v. Ernesto Alzona." Carandang brought suit for Atty. Obmina’s failure to inform Carandang of the adverse decision in Civil Case No. B-5109 and for failure to appeal the decision.

The Facts

The facts of CBD Case No. 06-1869 in the Report and Recommendation of the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP) read as follows:

Complainant’s Sworn Statement is hereto reproduced as follows:

SWORN STATEMENT

Ako si CARLITO P. CARANDANG, nasa wastong gulang, may asawa’t mga anak, at nakatira sa 5450 Alberto Apt., St. Francis Homes, Halang Biñan, Laguna.

Na ako ay may kasong isinampa kay ERNESTO T. ALSONA tungkol sa aming bahay at lupa, at isinampa sa BIÑAN RTC BRANCH 25, CIVIL CASE NO. B-5109.

Na ang naturang kaso ay natapos at nadisisyunan noong Enero 28, 2000 at ako ay natalo sa naturang kaso.

Na ang aking naging abogado ay si ATTY. GILBERT S. OBMINA, tubong Quezon at bilang kababayan ako ay nagtiwala sa kanyang kakayahan upang maipagtanggol sa naturang kaso, ngunit taliwas sa aking pananalig sa kanya ang nasabing kaso ay napabayaan hanggang sa magkaroon ng desisyon ang korte na kunin ang aking lupa’t bahay, sa madali’t sabi kami ay natalo ng hindi ko man lang nalalaman at huli na ang lahat ng malaman ko dahil hindi na kami pwedeng umapila.

Na nalaman ko lang na may desisyon na pala ang korte pagkatapos ng anim na buwan. Ang aking anak na si ROSEMARIE ay nagpunta sa BIÑAN, sa RTC ay binati at tinatanong kung saan kayo nakatira at ang sagot [ng] aking anak BAKIT? At ang sagot naman [ng] taga RTC, HINDI MO BA ALAM NA ANG INYONG KASO AY TAPOS NA. Nang marinig yon ay umuwi na siya at sinabi agad sa akin. Tapos na daw yung kaso [ng] ating bahay at ako ay pumunta sa opisina ni ATTY. OBMINA at aking tinanong "BAKIT DI MO SINABI SA AKIN NA TAPOS NA ANG KASO?" At ang sagot niya sa akin "AY WALA KANG IBABAYAD SA ABOGADO DAHIL WALA KANG PERA PANG-APILA" dahil sa sagot sa akin ay para akong nawalan [ng] pag-asa sa kaso.

Lumapit ako sa Malacañang at binigay yung sulat pero doon ay aking nakausap yung isang abogado at ako’y kanyang pinakinggan at aking inabot ang papeles at aking pinakita at ang sabi ay hindi na pwede dahil anim na buwan na [nang] lumipas ang kaso. Kaya aking sinabi sa ATTY. ng Malacañang na hindi sinabi sa akin agad ni ATTY. OBMINA na may order na pala ang kaso.

Kaya ang ginawang paraan ay binigyan ako ng sulat para ibigay sa IBP, at nang mabasa ang sulat ay sinabi sa akin na doon sa SAN PABLO ang hearing, at tinanong ako kung nasaan ang ATTORNEY’S WITHDRAWAL NYO? Ang sagot ko ay "WALA HO," kaya inutusan ako na kunin ang ATTORNEY’S WITHDRAWAL at agad akong nagpunta sa opisina ni ATTY. OBMINA at tinanong ko sa sekretarya niya kung nasaan si ATTY. OBMINA ang sagot sa akin ay nasa AMERICA NA! Kaya’t aking tinanong kung sinong pwede magbigay sa akin ng attorney’s withdrawal at ang sabi ay yung anak nya na si CARMELITSA OBMINA. Bumalik ako noong araw ng Biyernes at aking nakuha, pero hindi na ako nakabalik sa IBP dahil noong araw na iyon ay hindi ko na kayang maglakad, kaya hindi na natuloy ang hearing sa SAN PABLO.

CARLITO P. CARANDANGAffiant

CTC No. 21185732Issued on March 7, 2006At Biñan, Laguna

On November 16, 2006, the Commission on Bar Discipline, through Rogelio A. Vinluan, the then Director for Bar Discipline (now the incumbent Executive Vice President of the Integrated Bar of the Philippines), issued an Order directing respondent Atty. Gilbert S.


Obmina to submit his Answer, duly verified, in six (6) copies, and furnish the complainant with a copy thereof, within fifteen (15) days from receipt of the Order.

On December 12, 2006, this Commission was in receipt of a Manifestation dated December 11, 2006 filed by a certain Atty. Ma. Carmencita C. Obmina-Muaña. Allegedly, she is the daughter of respondent Atty. Gilbert S. Obmina. She further alleged that [her] father is already a permanent resident of the United States of America since March 2001 and had already retired from the practice of law.

That on February 20, 2007, undersigned Commissioner [Jose I. De La Rama, Jr.] scheduled the Mandatory Conference/Hearing of the case on March 20, 2007 at 9:30 a.m.1awphi1

On March 19, 2007, Atty. Ma. Carmencita C. Obmina-Muaña filed a Manifestation and Motion reiterating her earlier Manifestation that the respondent, Atty. Gilbert S. Obmina is already a permanent resident of the United States for the last six (6) years and likewise, she reiterated her request that summons be served on her father thru extraterritorial service. Atty. Muaña likewise requested the cancellation of the mandatory conference and resetting of the same on April 10, 2007.

On the scheduled Mandatory Conference on March 20, 2007, complainant Carlito P. Carandang appeared. The undersigned Commissioner directed Atty. Carmelita Muaña to appear before this Commission on May 18, 2007 at 2:00 p.m. and to bring with her the alleged withdrawal of appearance filed by her father and to bring proof that her father is now really a permanent resident of the United States of America.

That on May 18, 2007, Atty. Muaña again filed a Manifestation and Motion informing this Honorable Commission that she cannot possibly appear for the reason that she is the legal counsel of a candidate in Muntinlupa City and that the canvassing of the election results is not yet finished. She likewise submitted copies of her father’s Passport and US Permanent Residence Card. That with respect [to] the Withdrawal of Appearance, Atty. Muaña alleged that copies of the same were all given to complainant Carlito P. Carandang.1avvphi1

That an Order dated May 18, 2007 was issued by the undersigned Commissioner granting the aforesaid Manifestation and Motion. Atty. Muaña was likewise directed to appear before this Office on June 22, 2007 at 2:00 p.m.

On June 22, 2007, in the supposed Mandatory Conference, Atty. Carmencita Obmina Muaña appeared. Likewise presented was Mr. Carlito Carandang who is the complainant against Atty. Gilbert Obmina. In the interest of justice, Atty. Muaña was given a period of ten (10) days within which to file a verified answer. The Mandatory Conference was set on August 3, 2007 at 3:00 o’clock in the afternoon.

On June 29, 2007, Atty. Muaña filed a Motion for Extension of Time to file Answer.

On July 3, 2007, this Commission is in receipt of the verified Answer filed by respondent Atty. Gilbert S. Obmina.

On August 3, 2007, during the Mandatory Conference, complainant Carlito Carandang appeared. Atty. Muaña appeared in behalf of [her] father. After making some admissions, stipulations and some clarificatory matters, the parties were directed to submit their verified position papers within ten (10) days. Thereafter, the case will be submitted on report and recommendation.

On August 10, 2007, complainant, by himself, filed an Urgent Motion for Extension of Time to File Position Paper. Likewise, respondent, through Atty. Muaña, filed a Motion for Extension of Time to File Position Paper on August 13, 2007.

On September 3, 2007, the Commission on Bar Discipline received copy of the Respondent’s Memorandum.

On September 12, 2007, this Commission received copy of complainant’s Position Paper.1

The IBP’s Report and Recommendation

In a Report2 dated 2 October 2007, IBP Commissioner for Bar Discipline Jose I. De La Rama, Jr. (Commissioner De La Rama) found that Atty. Obmina was still counsel of record for complainant at the time the decision was rendered and up to the time of the issuance of the writ of execution. Atty. Obmina received the Decision dated 28 January 2000 on 1 March 2000. Atty. Carmencita




Obmina-Muaña manifested in Court that her father has been living in the United States of America since 2001. There is nothing on record that will show that Atty. Obmina notified complainant in any manner about the decision.

Although Commissioner De La Rama observed that complainant is partly to blame for his loss for failure to maintain contact with Atty. Obmina and to inform himself of the progress of his case, Commissioner De La Rama nonetheless underscored the duty of Atty. Obmina to notify his client as to what happened to his case. Thus:

One cannot escape the fact that the complainant himself failed to communicate with his counsel for quite sometime. There is nothing in the complainant’s Sworn Statement that would show that he regularly visited the office of the respondent, Atty. Gilbert S. Obmina. Complainant is partly to blame for his loss and it should not be attributed solely to the respondent.

The Supreme Court held that "clients should maintain contact with their counsel from time to time and inform themselves of the progress of their case, thereby exercising that standard of care which an ordinary prudent man bestows upon his business (Leonardo vs. S.T. Best, Inc., 422 SCRA 347)

However, the respondent who has in his possession the complete files and address of the complainant, should have exerted efforts to even notify Mr. Carandang as to what happened to his case. Whether the decision is adverse [to] or in favor of his client, respondent is duty bound to notify the clients pursuant to Canon 18 of the Code of Professional Ethics which provides that "a lawyer shall serve his client with competence and diligence."Further under Rule 18.03 of Canon 18, "a lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable." Lastly, under Rule 18.04, "a lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to client’s request for information."

That as a result of the respondent’s failure to notify the complainant, the latter lost the case leading to his eviction.

In the case of Mijares vs. Romana 425 SCRA 577, the Supreme Court held that "as an officer of the court, it is the duty of an attorney to inform his client of whatever information he may have acquired which it is important that the client should have knowledge of." In another case, the Supreme Court held that "respondent’s failure to perfect an appeal within the prescribed period constitutes negligence and malpractice proscribed by the Code of Professional Responsibility" (Cheng vs. Agravante, 426 SCRA 42).

WHEREFORE, in view of the foregoing, with head bowed in sadness, it is respectfully recommended that Atty. Gilbert S. Obmina be suspended from the practice of law for a period of one (1) year.

Although the said respondent is reportedly in the United States of America and accordingly retired from the practice of law, this Commission will not close its eyes on the negligence that he has committed while in the active practice.

SO ORDERED.3 (Emphasis in the original)

In a Resolution4 dated 19 October 2007, the IBP Board of Governors adopted and approved the Report and Recommendation of Commissioner De La Rama. The Office of the Bar Confidant received the notice of the Resolution and the records of the case on 14 March 2008.


We sustain the findings of the IBP and adopt its recommendations. Atty. Obmina violated Canon 18, and Rules 18.03 and 18.04 of the Code of Professional Responsibility.

Atty. Obmina Failed to Serve Complainant with Competence and Diligence

Canon 18 states that "[a] lawyer shall serve his client with competence and diligence." Rules 18.03 and 18.04 provide that "[a] lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable" and "[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."

In his Memorandum, Atty. Obmina admitted that he was counsel for Carandang in Civil Case No. B-5109. Atty. Obmina blamed Carandang for the adverse decision in Civil Case No. B-5109 because Carandang did not tell him that there was a Compromise Cases in Legal Ethics Bachelor of Laws 3A 166



Agreement executed prior to Atty. Obmina’s filing of the complaint in Civil Case No. B-5109. Carandang, on the other hand, stated that Atty. Obmina made him believe that they would win the case. In fact, Carandang engaged the services of Atty. Obmina on a contingent basis. Carandang shall pay Atty. Obmina 40% of the sale proceeds of the property subject matter of the case. Atty. Obmina promised to notify Carandang as soon as the decision of the court was given.

Contrary to Atty. Obmina’s promise, there is no evidence on record that Atty. Obmina took the initiative to notify Carandang of the trial court’s adverse decision. Atty. Obmina again put Carandang at fault for failure to advance the appeal fee. Atty. Obmina’s version of Carandang’s confrontation with him was limited to this narrative:

Sometime in the year 2000, complainant went to respondent’s law office. He was fuming mad and was blaming respondent for having lost his case. He asked for the records of the case because according to him, he will refer the case to a certain Atty. Edgardo Salandanan. Respondent gave complainant the case file. Complainant did not return to pursue the appeal or at least had given an appeal fee to be paid to Court in order to perfect the appeal.5

Atty. Obmina’s futile efforts of shifting the blame on Carandang only serve to emphasize his failure to notify Carandang that the trial court already promulgated a decision in Civil Case No. B-5109 that was adverse to Carandang’s interests. Atty. Obmina cannot overlook the fact that Carandang learned about the promulgation of the decision not through Atty. Obmina himself, but through a chance visit to the trial court. Instead of letting Carandang know of the adverse decision himself, Atty. Obmina should have immediately contacted Carandang, explained the decision to him, and advised them on further steps that could be taken. It is obvious that Carandang lost his right to file an appeal because of Atty. Obmina’s inaction. Notwithstanding Atty. Obmina’s subsequent withdrawal as Carandang’s lawyer, Atty. Obmina was still counsel of record at the time the trial court promulgated the decision in Civil Case No. B-5109.

In Tolentino v. Mangapit, we stated that:

As an officer of the court, it is the duty of an attorney to inform her client of whatever information she may have acquired which it is important that the client should have knowledge of. She should notify her client of any adverse decision to enable her client to decide whether to seek an appellate review thereof. Keeping the client informed of the developments of the case will minimize misunderstanding and [loss] of trust and confidence in the attorney.6

The relationship of lawyer-client being one of confidence, there is ever present the need for the lawyer to informtimely and adequately the client of important developments affecting the client’s case. The lawyer should not leave the client in the dark on how the lawyer is defending the client’s interests.7

The Court finds well-taken the recommendation of the IBP to suspend Atty. Gilbert S. Obmina from the practice of law for one year. In the cases of Credito v. Sabio8 and Pineda v. Macapagal,9 we imposed the same penalty upon attorneys who failed to update their clients on the status of their cases. Considering Atty. Obmina’s advanced age, such penalty serves the purpose of protecting the interest of the public and legal profession.

WHEREFORE, the Court AFFIRMS the resolution of the IBP Board of Governors approving and adopting the report and recommendation of the Investigating Commissioner. Accordingly, Atty. Gilbert S. Obmina is foundGUILTY of violation of Canon 18 and of Rules 18.03 and 18.04 of the Code of Professional Responsibility. The Court SUSPENDS Atty. Gilbert S. Obmina from the practice of law for one year, and WARNS him that a repetition of the same or similar offense will 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 the Integrated Bar of the Philippines and all courts in the country for their information and guidance.

SO ORDERED.









Manila

EN BANC

Administrative Case No. 5169 November 24, 1999

(Formerly Adm. Case No. CBD 367)

ELMO S. MOTON, complainant, vs.ATTY. RAYMUNDO D. CADIAO, respondent.

R E S O L U T I O N


PARDO, J.:

The case is a verified letter-complaint for disbarment 1 against Atty. Raymundo D. Cadiao, for violation of the lawyer's oath.

The antecedent facts show that on September 29, 1987, complainant Elmo S. Moton filed with the Regional Trial Court, Quezon City, a civil complaint against Pablito M. Castillo and The Philippine Veterans Bank denominated as Right to Use Urban Land and Damages. 2

On August 14, 1990, when the case was scheduled for pre-trial conference, the complainant's counsel, Atty. Raymundo D. Cadiao, failed to appear, hence, the court dismissed the case. 3 On August 15, 1990, Atty. Cadiao filed with the trial court an entry of appearance for the complainant and a motion for reconsideration of the dismissal of the case. 4 Acting on the motion, the court set aside the August 14, 1990 order of dismissal and reset the pre-trial conference on May 5, 1991. 5

On May 5, 1991, upon motion of Atty. Cadiao, the court declared the defendant Castillo in default and allowed plaintiffs to present their evidence ex-parte before a Commissioner. 6 It turned out that the court appointed Commissioner was on official leave. Consequently, plaintiffs filed a motion for appointment of a substitute Commissioner. The court granted the motion in an order dated June 28, 1991. The reception of evidence was set on August 13, 1991. 7

On August 2, 1991, Atty. Cadiao filed a motion to reset the hearing from August 13, 1991 to August 26, 27, 28 or 29, 1991, for the reason that he had to attend a scheduled hearing in Antique. 8 At the hearing of the motion on August 9, 1991, respondent was absent because he had left for Antique. Therefore, the court denied the motion to reset hearing. A subsequent motion for reconsideration with prayer to set case for reception of evidence was similarly denied. 9

On November 20, 1991, Atty. Cadiao filed with the Court of Appeals a petition for certiorari alleging that the trial court acted with grave abuse of discretion amounting to lack of jurisdiction when it dismissed the case. On October 23, 1992, the Court of Appeals dismissed the petition for lack ofmerit. 10

On January 20, 1993, respondent filed with the Court of Appeals a Withdrawal of Appearance. 11

Hence, this complaint. 12

After conducting hearings at which respondent was allowed to adduce evidence, on November 28, 1998, the Commission on Bar Discipline, Integrated Bar of the Philippines, submitted its Report finding respondent Atty. Raymundo D. Cadiao liable for negligence in handling the complainant's case and recommended that Atty. Cadiao be fined Two Thousand (P2,000.00) Pesos with a warning that any similar negligence will be dealt with more severely. 13

In his answer to the complaint filed with the Commission on Bar Discipline, 14 Atty. Raymundo D. Cadiao contended that the main reason for the undue delay in the presentation of evidence in Civil Case No. Q-51909 was the inability of the complainant to furnish him with the original copies of the evidence and that his failure to appear during the scheduled hearing was due to a compelling need to appear in another case in Antique which made it impossible for him to attend both hearings.

Canon 18, Rule 18.03 of the Code of Professional Responsibility provides that a lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable. In this case, by reason of Atty. Cadiao's negligence, actual loss has been caused to his client Elmo S. Moton. He should give adequate attention, care and time to his cases. This is why a practising lawyer may accept only so many cases that he can efficiently handle. Otherwise, his clients will be prejudiced. 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 lawyer's oath.

In light of the foregoing, the Court agrees with the findings of the Commission on Bar Discipline, Integrated Bar of the Philippines, declaring respondent liable for negligence in the handling of complainant's case.

ACCORDINGLY, the Court resolved to impose on respondent Atty. Raymundo D. Cadiao a fine of P2,000,00 payable to this Court within ten (10) days from notice, with warning that a repetition of similar acts will be dealt with more severely.

SO ORDERED.Cases in Legal Ethics Bachelor of Laws 3A 169



Manila

SECOND DIVISION

A.C. No. 5736 June 18, 2010

RURAL BANK OF CALAPE, INC. (RBCI) BOHOL, Complainant, vs.ATTY. JAMES BENEDICT FLORIDO, Respondent.

D E C I S I O N

CARPIO, J.:

The Case

This 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 coercion and threats when he, as counsel


http://www.lawphil.net/judjuris/juri2010/jun2010/ac_5736_2010.html#fnt1

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 Facts

On 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 IBP

On 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







We 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.



Manila

SECOND DIVISION

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 N

TINGA, 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:

1. Tax evasion by the millions of pesos of income not reported to the government.

2. Criminal Charges for Tax Evasion

3. Criminal Charges for Falsification of Documents

4. 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 the

1997 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.

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.





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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 ORDERED.

Case 45: Junio vs. Grupo / Topic: Canon 20 (See Case 38)



Manila

THIRD DIVISION

A. C. No. 6281 September 26, 2011

VALENTIN C. MIRANDA, Complainant, vs.ATTY. MACARIO D. CARPIO, Respondent.

- versus- Present:


PERALTA, J., Acting Chairperson,

ABAD,

PEREZ,*

MENDOZA, and

PERLAS-BERNABE, JJ.

Promulgated:

x---------------------------------------------------------------------------------------x

DECISION

PERALTA, J.:

This is a disbarment case against Atty. Macario D. Carpio filed by Valentin C. Miranda.[1]

The facts, as culled from the records, are as follows:

Complainant Valentin C. Miranda is one of the owners of a parcel of land consisting of 1,890 square meters located at Barangay Lupang Uno, Las Piñas, Metro Manila. In 1994, complainant initiated Land Registration Commission (LRC) Case No. M-226 for the registration of the aforesaid property. The case was filed before the Regional Trial Court of Las Piñas City, Branch 275. During the course of the proceedings, complainant engaged the services of respondent Atty. Carpio as counsel in the said case when his original counsel, Atty. Samuel Marquez, figured in a vehicular accident.

In complainant's Affidavit,[2] complainant and respondent agreed that complainant was to pay respondent Twenty Thousand Pesos (PhP20,000.00) as acceptance fee and Two Thousand Pesos (PhP2,000.00) as appearance fee. Complainant paid respondent the amounts due him, as evidenced by receipts duly signed by the latter. During the last hearing of the case, respondent demanded the additional amount of Ten Thousand Pesos (PhP10,000.00) for the preparation of a memorandum, which he said would further strengthen complainant's position in the case, plus twenty percent (20%) of the total area of the subject property as additional fees for his services.

Complainant did not accede to respondent's demand for it was contrary to their agreement. Moreover, complainant co-owned the subject property with his siblings, and he could not have agreed to the amount being demanded by respondent without the knowledge and approval of his co-heirs. As a result of complainant's refusal to satisfy respondent's demands, the latter became furious and their relationship became sore.

On January 12, 1998, a Decision was rendered in LRC Case No. M-226, granting the petition for registration, which Decision was declared final and executory in an Order dated June 5, 1998. On March 24, 2000, the Land Registration Authority (LRA) sent complainant a copy of the letter addressed to the Register of Deeds (RD) of Las Piñas City, which transmitted the decree of registration and the original and owner's duplicate of the title of the property.

On April 3, 2000, complainant went to the RD to get the owner's duplicate of the Original Certificate of Title (OCT) bearing No. 0-94. He was surprised to discover that the same had already been claimed by and released to respondent on March 29, 2000. On May 4, 2000, complainant talked to respondent on the phone and asked him to turn over the owner's duplicate of the OCT, which he had claimed without complainant's knowledge, consent and authority. Respondent insisted that complainant first pay him the PhP10,000.00 and the 20% share in the property equivalent to 378 square meters, in exchange for which, respondent would deliver the owner's duplicate of the OCT. Once again, complainant refused the demand, for not having been agreed upon.


In a letter[3] dated May 24, 2000, complainant reiterated his demand for the return of the owner's duplicate of the OCT. On June 11, 2000, complainant made the same demand on respondent over the telephone. Respondent reiterated his previous demand and angrily told complainant to comply, and threatened to have the OCT cancelled if the latter refused to pay him.

On June 26, 2000, complainant learned that on April 6, 2000, respondent registered an adverse claim on the subject OCT wherein he claimed that the agreement on the payment of his legal services was 20% of the property and/or actual market value. To date, respondent has not returned the owner's duplicate of OCT No. 0-94 to complainant and his co-heirs despite repeated demands to effect the same.

In seeking the disbarment or the imposition of the appropriate penalty upon respondent, complainant invokes the following provisions of the Code of Professional Responsibility:

Canon 20. A lawyer shall charge only fair and reasonable fees.

Canon 16. A lawyer shall hold in trust all moneys and properties of his client that may come into his possession.

Canon 16.03. A lawyer shall deliver the funds and properties of his client when due or upon demand. x x x

In defense of his actions, respondent relied on his alleged retaining lien over the owner's duplicate of OCT No. 0-94. Respondent admitted that he did not turn over to complainant the owner's duplicate of OCT No. 0-94 because of complainant's refusal, notwithstanding repeated demands, to complete payment of his agreed professional fee consisting of 20% of the total area of the property covered by the title, i.e., 378 square meters out of 1,890 square meters, or its equivalent market value at the rate of PhP7,000.00 per square meter, thus, yielding a sum of PhP2,646,000.00 for the entire 378-square-meter portion and that he was ready and willing to turn over the owner's duplicate of OCT No. 0-94, should complainant pay him completely the aforesaid professional fee.

Respondent admitted the receipt of the amount of PhP32,000.00, however, he alleged that the amount earlier paid to him will be deducted from the 20% of the current value of the subject lot. He alleged that the agreement was not reduced into writing, because the parties believed each other based on their mutual trust. He denied that he demanded the payment of PhP10,000.00 for the preparation of a memorandum, since he considered the same unnecessary.

In addition to the alleged agreement between him and complainant for the payment of the 20% professional fees, respondent invoked the principle of "quantum meruit" to justify the amount being demanded by him.

In its Report and Recommendation[4] dated June 9, 2005, the Integrated Bar of the Philippines-Commission on Bar Discipline (IBP-CBD) recommended that respondent be suspended from the practice of law for a period of six (6) months for unjustly withholding from complainant the owner's duplicate of OCT No. 0-94 in the exercise of his so-called attorney's lien. In Resolution No. XVII-2005-173,[5] dated December 17, 2005, the IBP Board of Governors adopted and approved the Report and Recommendation of the IBP-CBD.

Respondent filed a motion for reconsideration of the resolution of the IBP Board of Governors adopting the report and recommendation of the IBP-CBD. Pending the resolution of his motion for reconsideration, respondent filed a petition for review[6] with this Court. The Court, in a Resolution[7] dated August 16, 2006, directed that the case be remanded to the IBP for proper disposition, pursuant to this Court's resolution in Noriel J. Ramientas v. Atty. Jocelyn P. Reyala.[8]

In Notice of Resolution No. XVIII-2008-672, dated December 11, 2008, the IBP Board of Governors affirmed Resolution No. XVII-2005-173, dated December 17, 2005, with modification that respondent is ordered to return the complainant's owner's duplicate of OCT No. 0-94 within fifteen days from receipt of notice. Hence, the present petition.

The Court sustains the resolution of the IBP Board of Governors, which affirmed with modification the findings and recommendations of the IBP-CBD. Respondent's claim for his unpaid professional fees that would legally give him the right to retain the property of his client until he receives what is allegedly due him has been paid has no basis and, thus, is invalid.

Section 37, Rule 138 of the Rules of Court specifically provides:


Section 37. Attorney’s liens. – An attorney shall have a lien upon the funds, documents and papers of his client, which have lawfully come into his possession and may retain the same until his lawful fees and disbursements have been paid, and may apply such funds to the satisfaction thereof. He shall also have a lien to the same extent upon all judgments for the payment of money, and executions issued in pursuance of such judgments, which he has secured in a litigation of his client, from and after the time when he shall have caused a statement of his claim of such lien to be entered upon the records of the court rendering such judgment, or issuing such execution, and shall have caused written notice thereof to be delivered to his client and to the adverse party; and he shall have the same right and power over such judgments and executions as his client would have to enforce his lien and secure the payment of his just fees and disbursements.

An attorney's retaining lien is fully recognized if the presence of the following elements concur: (1) lawyer-client relationship; (2) lawful possession of the client's funds, documents and papers; and (3) unsatisfied claim for attorney's fees.[9] Further, the attorney's retaining lien is a general lien for the balance of the account between the attorney and his client, and applies to the documents and funds of the client which may come into the attorney's possession in the course of his employment.[10]

In the present case, complainant claims that there is no such agreement for the payment of professional fee consisting of 20% of the total area of the subject property and submits that their agreement was only for the payment of the acceptance fee and the appearance fees.

As correctly found by the IBP-CBD, there was no proof of any agreement between the complainant and the respondent that the latter is entitled to an additional professional fee consisting of 20% of the total area covered by OCT No. 0-94. The agreement between the parties only shows that respondent will be paid the acceptance fee and the appearance fees, which the respondent has duly received. Clearly, there is no unsatisfied claim for attorney's fees that would entitle respondent to retain his client's property. Hence, respondent could not validly withhold the title of his client absence a clear and justifiable claim.

Respondent's unjustified act of holding on to complainant's title with the obvious aim of forcing complainant to agree to the amount of attorney's fees sought is an alarming abuse by respondent of the exercise of an attorney's retaining lien, which by no means is an absolute right, and cannot at all justify inordinate delay in the delivery of money and property to his client when due or upon demand.[11]

Atty. Carpio failed to live up to his duties as a lawyer by unlawfully withholding and failing to deliver the title of the complainant, despite repeated demands, in the guise of an alleged entitlement to additional professional fees. He has breached Rule 1.01 of Canon 1 and Rule 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 16.03 - 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 lawful 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.

Further, in collecting from complainant exorbitant fees, respondent violated Canon 20 of the Code of Professional Responsibility, which mandates that "a lawyer shall charge only fair and reasonable fees." It is highly improper for a lawyer to impose additional professional fees upon his client which were never mentioned nor agreed upon at the time of the engagement of his services. At the outset, respondent should have informed the complainant of all the fees or possible fees that he would charge before handling the case and not towards the near conclusion of the case. This is essential in order for the complainant to determine if he has the financial capacity to pay respondent before engaging his services.

Respondent's further submission that he is entitled to the payment of additional professional fees on the basis of the principle of quantum meruit has no merit. "Quantum meruit, meaning `as much as he deserved' is used as a basis for determining the lawyer's professional fees in the absence of a contract but recoverable by him from his client."[12] The principle of quantum meruit applies if


a lawyer is employed without a price agreed upon for his services. In such a case, he would be entitled to receive what he merits for his services, as much as he has earned.[13] In the present case, the parties had already entered into an agreement as to the attorney's fees of the respondent, and thus, the principle of quantum meruit does not fully find application because the respondent is already compensated by such agreement.

The Court notes that respondent did not inform complainant that he will be the one to secure the owner's duplicate of the OCT from the RD and failed to immediately inform complainant that the title was already in his possession. Complainant, on April 3, 2000, went to the RD of Las Piñas City to get the owner's duplicate of OCT No. 0-94, only to be surprised that the said title had already been claimed by, and released to, respondent on March 29, 2000. A lawyer must conduct himself, especially in his dealings with his clients, with integrity in a manner that is beyond reproach. His relationship with his clients should be characterized by the highest degree of good faith and fairness.[14] By keeping secret with the client his acquisition of the title, respondent was not fair in his dealing with his client. Respondent could have easily informed the complainant immediately of his receipt of the owner's duplicate of the OCT on March 29, 2000, in order to save his client the time and effort in going to the RD to get the title.

Respondent's inexcusable act of withholding the property belonging to his client and imposing unwarranted fees in exchange for the release of said title deserve the imposition of disciplinary sanction. Hence, the ruling of the IBP Board of Governors, adopting and approving with modification the report and recommendation of the IBP-CBD that respondent be suspended from the practice of law for a period of six (6) months and that respondent be ordered to return the complainant's owner's duplicate of OCT No. 0-94 is hereby affirmed. However, the fifteen-day period from notice given to respondent within which to return the title should be modified and, instead, respondent should return the same immediately upon receipt of the Court's decision.

WHEREFORE, Atty. Macario D. Carpio is SUSPENDED from the practice of law for a period of six (6) months, effective upon receipt of this Decision. He is ordered to RETURN to the complainant the owner's duplicate of OCT No. 0-94 immediately upon receipt of this decision. He is WARNED that a repetition of the same or similar act shall 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. Macario D. Carpio 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.

SO ORDERED.



Manila

THIRD DIVISION

A.C. No. 5798 January 20, 2005

ALEX B. CUETO, complainant, vs.ATTY. JOSE B. JIMENEZ, JR., respondent.

R E S O L U T I O N

CORONA, J.:


Before us is a complaint1 for disciplinary action against Atty. Jose Jimenez, Jr. filed by Engr. Alex B. Cueto with the Integrated Bar of the Philippines (IBP), Commission on Bar Discipline.

Engr. Alex Cueto alleged that sometime in October 1999 he engaged the services of respondent as notary public, the latter being the father of the owner of the building subject of the Construction Agreement2 to be notarized. He was then accompanied by a certain Val Rivera, the building administrator of respondent’s son Jose Jimenez III.

After notarizing the agreement, respondent demanded P50,000 as notarial fee. Despite his surprise as to the cost of the notarial service, complainant informed respondent that he only had P30,000 in cash. Respondent persuaded complainant to pay the P30,000 and to issue a check for the remaining P20,000. Being unfamiliar with the cost of notarial services, complainant paid all his cash3 and issued a Far East Bank check dated December 28, 1999 for the balance.1ªvvphi1.nét

Before the maturity date of the check, complainant requested respondent not to deposit the same for lack of sufficient funds. He also informed respondent that the latter’s son Jose Jimenez III had not yet paid his services as general contractor. Still, respondent deposited the check which was consequently dishonored for insufficient funds. Meanwhile, the P2,500,000 check issued by respondent’s son to complainant as initial payment pursuant to the Construction Agreement was itself dishonored for having been drawn against a closed account.

Subsequently, Atty. Jimenez lodged a complaint for violation of BP 22 against Cueto before the City Prosecutor’s Office in Angeles City. The criminal case was tried in the Metropolitan Trial Court of Angeles City, Branch I.

In the meantime, Cueto filed his own administrative complaint against Jimenez on November 16, 2001. He alleged that Jimenez violated the Code of Professional Responsibility and Canons of Professional Ethics when he filed the criminal case against Cueto so he could collect the balance of his notarial fee.

Pursuant to Rule 139-B, Section 6 of the Rules of Court, respondent Jimenez was required to answer the complaint filed against him.4 Despite notice, however, respondent failed to file his answer and to appear before the IBP Commission on Bar Discipline. After hearing the case ex-parte, the case was deemed submitted for resolution.5

In its report6 dated April 21, 2002, the IBP Commission on Bar Discipline found respondent guilty of violating Canon 20, Rule 20.4 of the Code of Professional Responsibility and recommended that Atty. Jose B. Jimenez, Jr. be reprimanded.

On June 29, 2002, the Board of Governors passed a resolution7 adopting and approving the report and recommendation of the Investigating Commissioner:8

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 in view of respondent’s violation of Canon 20, Rule 20.4 of the Code of Professional Responsibility, respondent is hereby reprimanded.

Complainant’s claim that respondent’s P50,000 notarial fee was exorbitant is debatable. As confirmed by the IBP, it is a recognized legal practice in real estate transactions and construction projects to base the amount of notarial fees on the contract price. Based on the amount demanded by respondent, the fee represented only 1% of the contract price of P5,000,000. It cannot be said therefore that respondent notary demanded more than a reasonable recompense for his service.

We are also convinced that the two contracting parties implicitly agreed on the cost of Jimenez’s notarial service. It was Cueto’s responsibility to first inquire how much he was going to be charged for notarization. And once informed, he was free to accept or reject it, or negotiate for a lower amount. In this case, complainant’s concern that the other party to the construction agreement was the son of respondent notary and that his non-availment of respondent’s service might jeopardize the agreement, was purely speculative. There was no compulsion to avail of respondent’s service.l^vvphi1.net Moreover, his failure to negotiate the amount of the fee was an implicit acquiescence to the terms of the notarial service. His subsequent act of paying in cash and in check all the more proved it.

However, we agree with the IBP that respondent’s conduct in filing a criminal case for violation of BP 22 against complainant (when the check representing the P20,000 balance was dishonored for insufficient funds) was highly improper.


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Canon 20, Rule 20.4 of the Code of Professional Responsibility 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." Likewise, in Canon 14 of the Canons of Professional Ethics it states that, "[c]ontroversies with clients concerning compensation are to be avoided by the lawyer so far as shall be compatible with his self-respect and with his right to receive reasonable recompense for his service; and lawsuits with the clients should be resorted to only to prevent injustice, imposition or fraud."1a\^/phi1.net

There was clearly no imposition, injustice or fraud obtaining in this case to justify the legal action taken by respondent. As borne out by the records, complainant Cueto had already paid more than half of respondent’s fee. To resort to a suit to recover the balance reveals a certain kind of shameful conduct and inconsiderate behavior that clearly undermines the tenet embodied in Canon 15 that "[A] lawyer should observe candor, fairness and loyalty in all his dealings and transactions with his client." And what can we say about the failure of respondent’s son Jose III to pay his own obligation to complainant Cueto? It in all probability explains why Cueto ran short of funds. Respondent therefore should have been more tolerant of the delay incurred by complainant Cueto.

We cannot overstress the duty of a lawyer to uphold the integrity and dignity of the legal profession. 9 He can do this by faithfully performing his duties to society, to the bar, to the courts and to his clients. He should always remind himself that the legal profession is imbued with public service. Remuneration is a mere incident.

Although we acknowledge that every lawyer must be paid what is due to him, he must never resort to judicial action to recover his fees, in a manner that detracts from the dignity of the profession.

WHEREFORE, Atty. Jose Jimenez, Jr. is hereby SEVERELY REPRIMANDED for violating Canon 20, Rule 20.4 of the Code of Professional Responsibility.

SO ORDERED.



Manila

EN BANC

December 8, 1923

VICENTE DIAZ, complainant, vs.RUPERTO KAPUNAN, respondent.

Attorney-General Villa-Real for the Government. Perfecto Gabriel and Rafael Palma for respondent.



MALCOLM, J.:

This action for malpractice brought by Vicente Diaz against Attorney Ruperto Kapunan, has to do with the conduct of Attorney Kapunan during the legal proceedings which followed the business troubles of Vicente Diaz and Secundino de Mendezona, and particularly relates to the conduct of Attorney Kapunan in civil case No. 2098 of the Court of First Instance of Leyte. The ultimate question on which we would concentrate attention concerns the agreement between Diaz and Kapunan at the time of the sale of the property of Mendoza, whereby Kapunan, on the promise of Diaz to pay him P1,000, agreed to desist from further participation in the sale, all in alleged violation of article 1459 of the Civil Code and article 542 of the Penal Code.

Omitting the irrelevant matter interjected into this case, the principal facts of record are the following:

In 1917, Vicente Diaz and Secundino de Mendezona formed a partnership and entered into extensive business transactions in the Province of Leyte. The capital of the partnership was P380,000. Unfortunately, however, the business failed to prosper, with the result that on liquidation, it was found to have suffered a loss of P67,000. When Diaz and Mendezona came to settle up their affairs, they eventually formulated a document of sale and mortgage in which Mendezona recognized a debt in favor of Diaz in the sum of P80,000 and an additional sum of P10,000 owing to Diaz, laid upon the hacienda "Mapuyo," and to be paid within the term of one year. When the year had expired Mendezona was not to be found and his family was unable to meet the payment. There followed the usual proceedings for foreclosure and sale, which, after considerable delay, resulted in the hacienda's being offered for sale at public auction.

At the time fixed for the sale, December 23, 1922, there appeared Vicente Diaz, accompanied by his lawyer Emilio Benitez, and Attorney Ruperto Kapunan. Luis Velarde, the deputy sheriff of Leyte, is authority for the statement that Kapunan told him that he, Kapunan, was ready to bid on the property up to P16,000 in order to assist the Mendezona family which was in financial straits. At any rate, the bidding was opened by Kapunan offering P12,000 for the property and with Diaz and Kapunan raising the bids until finally Diaz offered P12,500. There the bids stopped on account of Diaz and Kapunan entering into the agreement, of decisive importance, which we next quote in full:

We, Vicente Diaz and Ruperto Kapunan, both being the bidders at the auction held for the sale of the properties of Secundino Mendezona, do hereby agreed that Don Ruperto Kapunan should withdraw his bid and refrain from bidding at the said auction as he does hereby withdraw his bid, and in consideration thereof, the said Mr. Diaz offers him a premium of one thousand pesos (P1,000) which, out of consideration to said Don Vicente Diaz, Mr. Kapunan accepts and has, for this reason, refrained from bidding in competition with said Mr. Diaz.lawphi1.net

Tacloban, Leyte, December 23, 1922.

(Sgd.) "V. DIAZ. (Sgd.) RUPERTO KAPUNAN."

Following the termination of the sheriff's sale, Diaz on December 26, 1922, gave Kapunan P500 of the P1,000 mentioned in the above quoted document. Diaz further followed the usual procedure to take over the property of Mendezona pursuant to his bid of P12,500, which covered the amount of the mortgage with its accumulated interest and with the judicial expenses.

Although it was on December 23, 1922, that Diaz and Kapunan entered into the agreement, Diaz could only wait until January 4, 1923, following, to lay before this court charges against Attorney Kapunan for alleged unprofessional conduct. Undoubtedly, before Kapunan had knowledge of the disbarment proceedings, on January 10, 1923, he presented a motion in the Court of First Instance of Leyte asking that he be permitted to retain the P500 in question, in part payment of his professional fees. Later, on February 4, 1923, when Kapunan must have had knowledge of the disbarment proceedings, he filed another motion, withdrawing his former motion and asking the court to permit him to turn over the P500 to Diaz, which Judge Causing refused to do on the ground that it was a personal matter. Nevertheless, on July 10, 1923, the clerk of the Court of First Instance of Leyte handed the P500 to Diaz who, in turn, receipted for that amount. lawphil.net

From correspondence, it further is evident that the family of Mendezona was led to believe that the P500 would shortly be sent them. Without doubt, the Mendezona family would have been gratified to receive even the P500 pittance out of the business wreck in Leyte of the senior Mendezona.


During much of the time here mentioned, Kapunan was the attorney of Mendezona. Kapunan was given extensive authority by the letter of Mendezona of April 12, 1919. When Kapunan took part in the sale, it must be assumed that he was bidding in representation of his client and for the benefit of the client.

It remains to be said that following the presentation of the charges against Attorney Kapunan in this court, he was given an opportunity to answer, and the usual investigation of his professional conduct was made by the provincial fiscal of Leyte acting under the supervision of the Attorney-General. From the report of the fiscal, indorsed by the Attorney-General, three charges seem to have been considered. The first two, relating to Kapunan's attempt to represent both the parties in the case, and to molest and disturb Diaz by frivolous motions, the law officer of the Government finds not substantiated; and with this conclusion we fully agree. The third charge is more serious and has to do with Kapunan having intervened in the manner in which he did in the sale of the property of his client Mendezona. The Attorney-General is of the opinion on this point that the facts constitute a flagrant violation of the provisions of article 1459 of the Civil Code and article 542 of the Penal Code. "In view thereof, it is recommended that corrective measures commensurate with the irregularity committed by Attorney Kapunan, be taken against him."

Article 1459 of the Civil Code was held in force in the case of Hernandez vs. Villanueva ([1920], 40 Phil., 775). It provides that the following persons, naming them, "cannot take by purchase, even at a public or judicial auction, either in person or through the mediation of another." The provision contained in the last paragraph of said article is made to include lawyers, with respect to any property or rights involved in any litigation in which they may take party by virtue of their profession and office. We do not believe this article has been infringed by the respondent because he has not purchased property at a public or judicial auction and because his participation in the auction was in representation of his client. It has been held that an execution sale to the attorney of the defendant is not unlawful if made in good faith, with the consent of the client, and without any purpose of defrauding the latter's creditors. (2 R. C. L., 1011; 1 Thornton on Attorneys at Law, pp. 298, 299; Smith vs. Smith [1848], 1 Iowa, 307.)

The more puzzling question relates to the alleged violation by Attorney Kapunan of article 542 of the Penal Code. This article punishes "any person who shall solicit any gift or promise as a consideration for agreeing to refrain from taking part in any public auction." The crime is consummated by the mere act of soliciting a gift or promise for the purpose of abstaining from taking part in the auction. Not permitting our minds to be confused by the varied explanations of Diaz and Kapunan, the document formulated by them and hereinbefore quoted, demonstrates that Kapunan, on the promise of Diaz to pay P1,000, refrained from further participation in the sale of the property of Mendezona, which is exactly the situation covered by article 542 of the Penal Code.

Public policy discountenances combinations or agreements on the part of bidders at execution sales, the objects and effects of which are to stifle competition. The courts will consider an agreement between a judgment creditor and one claiming an interest in the thing about to be sold under an execution, that neither shall bid against the other, as void, unless all parties concerned know of the arrangement and consent thereto. Execution sales should be open to free and full competition, in order to secure the maximum benefit for the debtor. Article 542 of the Penal Code is, therefore, a wise provision even though rarely invoked, and should be used to discourage the stifling of bids at judicial sales. (23 C.J., 647; Packard vs. Bird and Chapman [1870], 40 Cal., 378; 3 Viada, Codigo Penal, 594.)

We conclude that Attorney Kapunan has been guilty of a technical violation of article 542 of the Penal Code. But we cannot adopt the vigorous recommendation of the Attorney-General, for we consider present certain mitigating circumstances which exert an influence in favor of the respondent. In the first place, as disclosed by the judicial records, no reported prosecution under article 542 has been attempted, which is eloquent proof of the practical disuse of this article; and the Spanish jurisprudence, while indicative of the meaning of the article, relies principally on the decisions of the French Court of Cassation. (See Code of Napoleon, arts. 222, 223; decisions of the French Court of Cassation of October 16, 1844, May 15, 1857, and January 8, 1863.) In the next place, the complainant Diaz is equally guilty with the respondent Kapunan. And lastly, Kapunan appears to have been acting in good faith for his client, although adopting an irregular procedure, and although attempting to make tardy restitution of the money received by him.

Our judgment is that Attorney Ruperto Kapunan shall stand reprimanded and that the complainant, Vicente Diaz, shall immediately return to the clerk of the Court of First Instance of Leyte the P500 received by Diaz from the clerk and receipted for by Diaz, and the clerk of court shall transmit the P500 to Secundino de Mendezona or, in case of his absence, to Miss Carmen de Mendezona. Costs shall be taxed in accordance with the provisions of the Code of Civil Procedure. So ordered.


Case 49 Topic: Canon 21


Manila

EN BANC

A.C. No. 5859 November 23, 2010(Formerly CBD Case No. 421)

ATTY. CARMEN LEONOR M. ALCANTARA, VICENTE P. MERCADO, SEVERINO P. MERCADO AND SPOUSES JESUS AND ROSARIO MERCADO, Complainants, vs.ATTY. EDUARDO C. DE VERA, Respondent.

R E S O L U T I O NCases in Legal Ethics Bachelor of Laws 3A 185

PER CURIAM:

For our review is the Resolution1 of the Board of Governors of the Integrated Bar of the Philippines (IBP) finding respondent Atty. Eduardo C. De Vera liable for professional malpractice and gross misconduct and recommending his disbarment.

The facts, as appreciated by the investigating commissioner,2 are undisputed.

The respondent is a member of the Bar and was the former counsel of Rosario P. Mercado in a civil case filed in 1984 with the Regional Trial Court of Davao City and an administrative case filed before the Securities and Exchange Commission, Davao City Extension Office.3

Pursuant to a favorable decision, a writ of execution pending appeal was issued in favor of Rosario P. Mercado. Herein respondent, as her legal counsel, garnished the bank deposits of the defendant, but did not turn over the proceeds to Rosario. Rosario demanded that the respondent turn over the proceeds of the garnishment, but the latter refused claiming that he had paid part of the money to the judge while the balance was his, as attorney’s fees. Such refusal prompted Rosario to file an administrative case for disbarment against the respondent.4

On March 23, 1993, the IBP Board of Governors promulgated a Resolution holding the respondent guilty of infidelity in the custody and handling of client’s funds and recommending to the Court his one-year suspension from the practice of law.5

Following the release of the aforesaid IBP Resolution, the respondent filed a series of lawsuits against the Mercado family except George Mercado. The respondent also instituted cases against the family corporation, the corporation’s accountant and the judge who ruled against the reopening of the case where respondent tried to collect the balance of his alleged fee from Rosario. Later on, the respondent also filed cases against the chairman and members of the IBP Board of Governors who voted to recommend his suspension from the practice of law for one year. Complainants allege that the respondent committed barratry, forum shopping, exploitation of family problems, and use of intemperate language when he filed several frivolous and unwarranted lawsuits against the complainants and their family members, their lawyers, and the family corporation.6 They maintain that the primary purpose of the cases is to harass and to exact revenge for the one-year suspension from the practice of law meted out by the IBP against the respondent. Thus, they pray that the respondent be disbarred for malpractice and gross misconduct under Section 27,7 Rule 138 of the Rules of Court.

In his defense the respondent basically offers a denial of the charges against him.

He denies he has committed barratry by instigating or stirring up George Mercado to file lawsuits against the complainants. He insists that the lawsuits that he and George filed against the complainants were not harassment suits but were in fact filed in good faith and were based on strong facts.8

Also, the respondent denies that he has engaged in forum shopping. He argues that he was merely exhausting the remedies allowed by law and that he was merely constrained to seek relief elsewhere by reason of the denial of the trial court to reopen the civil case so he could justify his attorney’s fees.

Further, he denies that he had exploited the problems of his client’s family. He argues that the case that he and George Mercado filed against the complainants arose from their perception of unlawful transgressions committed by the latter for which they must be held accountable for the public interest.

Finally, the respondent denies using any intemperate, vulgar, or unprofessional language. On the contrary, he asserts that it was the complainants who resorted to intemperate and vulgar language in accusing him of "extorting from Rosario shocking and unconscionable attorney’s fees."9

After careful consideration of the records of this case and the parties’ submissions, we find ourselves in agreement with the findings and recommendation of the IBP Board of Governors.

It is worth stressing that the practice of law is not a right but a privilege bestowed by the State upon those who show that they possess, and continue to possess, the qualifications required by law for the conferment of such privilege.10 Membership in the bar is a privilege burdened with conditions. A lawyer has the privilege and right to practice law only during good behavior and can only be deprived of it for misconduct ascertained and declared by judgment of the court after opportunity to be heard has been afforded Cases in Legal Ethics Bachelor of Laws 3A 186

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him. Without invading any constitutional privilege or right, an attorney’s right to practice law may be resolved by a proceeding to suspend or disbar him, based on conduct rendering him unfit to hold a license or to exercise the duties and responsibilities of an attorney. It must be understood that the purpose of suspending or disbarring an attorney is to remove from the profession a person whose misconduct has proved him unfit to be entrusted with the duties and responsibilities belonging to an office of an attorney, and thus to protect the public and those charged with the administration of justice, rather than to punish the attorney.11 In Maligsa v. Cabanting,12 we explained that the bar should maintain a high standard of legal proficiency as well as of 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 profession 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. An attorney may be disbarred or suspended for any violation of his oath or of his duties as an attorney and counselor, which include statutory grounds enumerated in Section 27, Rule 138 of the Rules of Court.

In the present case, the respondent committed professional malpractice and gross misconduct particularly in his acts against his former clients after the issuance of the IBP Resolution suspending him from the practice of law for one year. In summary, the respondent filed against his former client, her family members, the family corporation of his former client, the Chairman and members of the Board of Governors of the IBP who issued the said Resolution, the Regional Trial Court Judge in the case where his former client received a favorable judgment, and the present counsel of his former client, a total of twelve (12) different cases in various fora which included the Securities and Exchange Commission; the Provincial Prosecutors Office of Tagum, Davao; the Davao City Prosecutors Office; the IBP-Commission on Bar Discipline; the Department of Agrarian Reform; and the Supreme Court.13

In addition to the twelve (12) cases filed, the respondent also re-filed cases which had previously been dismissed. The respondent filed six criminal cases against members of the Mercado family separately docketed as I.S. Nos. 97-135; 97-136; 97-137; 97-138; 97-139; and 97-140. With the exception of I.S. No. 97-139, all the aforementioned cases are re-filing of previously dismissed cases.14

Now, there is nothing ethically remiss in a lawyer who files numerous cases in different fora, as long as he does so in good faith, in accordance with the Rules, and without any ill-motive or purpose other than to achieve justice and fairness. In the present case, however, we find that the barrage of cases filed by the respondent against his former client and others close to her was meant to overwhelm said client and to show her that the respondent does not fold easily after he was meted a penalty of one year suspension from the practice of law.

The nature of the cases filed by the respondent, the fact of re-filing them after being dismissed, the timing of the filing of cases, the fact that the respondent was in conspiracy with a renegade member of the complainants’ family, the defendants named in the cases and the foul language used in the pleadings and motions15 all indicate that the respondent was acting beyond the desire for justice and fairness. His act of filing a barrage of cases appears to be an act of revenge and hate driven by anger and frustration against his former client who filed the disciplinary complaint against him for infidelity in the custody of a client’s funds.

In the case of Prieto v. Corpuz,16 the Court pronounced that it is professionally irresponsible for a lawyer to file frivolous lawsuits. Thus, we stated in Prieto,

Atty. Marcos V. Prieto must be sanctioned for filing this unfounded complaint. Although no person should be penalized for the exercise of the right to litigate, however, this right must be exercised in good faith.17

As officers of the court, lawyers have a responsibility to assist in the proper administration of justice.1avvphil They do not discharge this duty by filing frivolous petitions that only add to the workload of the judiciary.

A lawyer is part of the machinery in the administration of justice. Like the court itself, he is an instrument to advance its ends – the speedy, efficient, impartial, correct and inexpensive adjudication of cases and the prompt satisfaction of final judgments. A lawyer should not only help attain these objectives but should likewise avoid any unethical or improper practices that impede, obstruct or prevent their realization, charged as he is with the primary task of assisting in the speedy and efficient administration of justice.18 Canon 12 of the Code of Professional Responsibility promulgated on 21 June 1988 is very explicit that lawyers must exert every effort and consider it their duty to assist in the speedy and efficient administration of justice.

Further, the respondent not only filed frivolous and unfounded lawsuits that violated his duties as an officer of the court in aiding in the proper administration of justice, but he did so against a former client to whom he owes loyalty and fidelity. Canon 21 and Rule 21.02 of the Code of Professional Responsibility 19 provides:











CANON 21 - A lawyer shall preserve the confidence and secrets of his client even after the attorney-client relation is terminated.

Rule 21.02 – 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.

The cases filed by the respondent against his former client involved matters and information acquired by the respondent during the time when he was still Rosario’s counsel. Information as to the structure and operations of the family corporation, private documents, and other pertinent facts and figures used as basis or in support of the cases filed by the respondent in pursuit of his malicious motives were all acquired through the attorney-client relationship with herein complainants. Such act is in direct violation of the Canons and will not be tolerated by the Court.

WHEREFORE, respondent Atty. Eduardo C. De Vera is hereby DISBARRED from the practice of law effective immediately upon his receipt of this Resolution.

Let copies of this Resolution be furnished the Bar Confidant to be spread on the records of the respondent; the Integrated Bar of the Philippines for distribution to all its chapters; and the Office of the Court Administrator for dissemination to all courts throughout the country.

SO ORDERED.



Manila

SECOND DIVISION

A.C. No. 5280 March 30, 2004

WILLIAM S. UY, complainant, vs.ATTY. FERMIN L. GONZALES, respondent.

R E S O L U T I O N

AUSTRIA-MARTINEZ, J.:


William S. Uy filed before this Court an administrative case against Atty. Fermin L. Gonzales for violation of the confidentiality of their lawyer-client relationship. The complainant alleges:

Sometime in April 1999, he engaged the services of respondent lawyer to prepare and file a petition for the issuance of a new certificate of title. After confiding with respondent the circumstances surrounding the lost title and discussing the fees and costs, respondent prepared, finalized and submitted to him a petition to be filed before the Regional Trial Court of Tayug, Pangasinan. When the petition was about to be filed, respondent went to his (complainant’s) office at Virra Mall, Greenhills and demanded a certain amount from him other than what they had previously agreed upon. Respondent left his office after reasoning with him. Expecting that said petition would be filed, he was shocked to find out later that instead of filing the petition for the issuance of a new certificate of title, respondent filed a letter-complaint dated July 26, 1999 against him with the Office of the Provincial Prosecutor of Tayug, Pangasinan for "Falsification of Public Documents."1 The letter-complaint contained facts and circumstances pertaining to the transfer certificate of title that was the subject matter of the petition which respondent was supposed to have filed. Portions of said letter-complaint read:

The undersigned complainant accuses WILLIAM S. UY, of legal age, Filipino, married and a resident of 132-A Gilmore Street corner 9th Street, New Manila, Quezon City, Michael Angelo T. UY, CRISTINA EARL T. UY, minors and residents of the aforesaid address, Luviminda G. Tomagos, of legal age, married, Filipino and a resident of Carmay East, Rosales, Pangasinan, and F. Madayag, with office address at A12, 2/F Vira Mall Shopping Complex, Greenhills, San Juan, Metro Manila, for ESTAFA THRU FALSIFICATION OF PUBLIC DOCUMENTS, committed as follows:

That on March 15, 1996, William S. Uy acquired by purchase a parcel of land consisting of 4.001 ha. for the amount of P100,000.00, Philippine Currency, situated at Brgy. Gonzales, Umingan, Pangasinan, from FERMIN C. GONZALES, as evidenced by a Deed of Sale executed by the latter in favor of the former…; that in the said date, William S. Uy received the Transfer Certificate of Title No. T-33122, covering the said land;

That instead of registering said Deed of Sale and Transfer Certificate of Title (TCT) No. T-33122, in the Register of Deeds for the purpose of transferring the same in his name, William S. Uy executed a Deed of Voluntary Land Transfer of the aforesaid land in favor of his children, namely, Michael Angelo T. Uy and Cristina Earl T. Uy, wherein William S. Uy made it appear that his said children are of legal age, and residents of Brgy. Gonzales, Umingan, Pangasinan, when in fact and in truth, they are minors and residents of Metro Manila, to qualify them as farmers/beneficiaries, thus placing the said property within the coverage of the Land Reform Program;

That the above-named accused, conspiring together and helping one another procured the falsified documents which they used as supporting papers so that they can secure from the Office of the Register of Deeds of Tayug, Pangasinan, TCT No. T-5165 (Certificate of Land Ownership Award No. 004 32930) in favor of his above-named children. Some of these Falsified documents are purported Affidavit of Seller/Transferor and Affidavit of Non-Tenancy, both dated August 20, 1996, without the signature of affiant, Fermin C. Gonzales, and that on that said date, Fermin C. Gonzales was already dead… ;

That on December 17, 1998, William S. Uy with deceit and evident intent to defraud undersigned, still accepted the amount of P340,000.00, from Atty. Fermin L. Gonzales, P300,000.00, in PNB Check No. 0000606, and P40,000.00, in cash, as full payment of the redemption of TCT No. 33122…knowing fully well that at that time the said TCT cannot be redeemed anymore because the same was already transferred in the name of his children;

That William S. Uy has appropriated the amount covered by the aforesaid check, as evidenced by the said check which was encashed by him…;

That inspite of repeated demands, both oral and in writing, William S. Uy refused and continue to refuse to deliver to him a TCT in the name of the undersigned or to return and repay the said P340,000.00, to the damage and prejudice of the undersigned.2

With the execution of the letter-complaint, respondent violated his oath as a lawyer and grossly disregarded his duty to preserve the secrets of his client. Respondent unceremoniously turned against him just because he refused to grant respondent’s request for additional compensation. Respondent’s act tarnished his reputation and social standing.3

In compliance with this Court’s Resolution dated July 31, 2000,4 respondent filed his Comment narrating his version, as follows:


On December 17, 1998, he offered to redeem from complainant a 4.9 hectare-property situated in Brgy. Gonzales, Umingan, Pangasinan covered by TCT No. T-33122 which the latter acquired by purchase from his (respondent’s) son, the late Fermin C. Gonzales, Jr.. On the same date, he paid complainant P340,000.00 and demanded the delivery of TCT No. T-33122 as well as the execution of the Deed of Redemption. Upon request, he gave complainant additional time to locate said title or until after Christmas to deliver the same and execute the Deed of Redemption. After the said period, he went to complainant’s office and demanded the delivery of the title and the execution of the Deed of Redemption. Instead, complainant gave him photocopies of TCT No. T-33122 and TCT No. T-5165. Complainant explained that he had already transferred the title of the property, covered by TCT No.T-5165 to his children Michael and Cristina Uy and that TCT No. T-5165 was misplaced and cannot be located despite efforts to locate it. Wanting to protect his interest over the property coupled with his desire to get hold of TCT No. T-5165 the earliest possible time, he offered his assistance pro bono to prepare a petition for lost title provided that all necessary expenses incident thereto including expenses for transportation and others, estimated at P20,000.00, will be shouldered by complainant. To these, complainant agreed.

On April 9, 1999, he submitted to complainant a draft of the petition for the lost title ready for signing and notarization. On April 14, 1999, he went to complainant’s office informing him that the petition is ready for filing and needs funds for expenses. Complainant who was with a client asked him to wait at the anteroom where he waited for almost two hours until he found out that complainant had already left without leaving any instructions nor funds for the filing of the petition. Complainant’s conduct infuriated him which prompted him to give a handwritten letter telling complainant that he is withdrawing the petition he prepared and that complainant should get another lawyer to file the petition.

Respondent maintains that the lawyer-client relationship between him and complainant was terminated when he gave the handwritten letter to complainant; that there was no longer any professional relationship between the two of them when he filed the letter-complaint for falsification of public document; that the facts and allegations contained in the letter-complaint for falsification were culled from public documents procured from the Office of the Register of Deeds in Tayug, Pangasinan.5

In a Resolution dated October 18, 2000, the Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.6

Commissioner Rebecca Villanueva-Maala ordered both parties to appear on April 2, 2003 before the IBP.7 On said date, complainant did not appear despite due notice. There was no showing that respondent received the notice for that day’s hearing and so the hearing was reset to May 28, 2003.8

On April 29, 2003, Commissioner Villanueva-Maala received a letter from one Atty. Augusto M. Macam dated April 24, 2003, stating that his client, William S. Uy, had lost interest in pursuing the complaint he filed against Atty. Gonzales and requesting that the case against Atty. Gonzales be dismissed.9

On June 2, 2003, Commissioner Villanueva-Maala submitted her report and recommendation, portions of which read as follows:

The facts and evidence presented show that when respondent agreed to handle the filing of the Verified Petition for the loss of TCT No. T-5165, complainant had confided to respondent the fact of the loss and the circumstances attendant thereto. When respondent filed the Letter-Complaint to the Office of the Special Prosecutor in Tayug, Pangasinan, he violated Canon 21 of the Code of Professional Responsibility which expressly provides that "A lawyer shall preserve the confidences and secrets of his client even after the attorney-client relation is terminated." Respondent cannot argue that there was no lawyer-client relationship between them when he filed the Letter-Complaint on 26 July 1999 considering that as early as 14 April 1999, or three (3) months after, respondent had already terminated complainant’s perceived lawyer-client relationship between them. The duty to maintain inviolate the client’s confidences and secrets is not temporary but permanent. It is in effect perpetual for "it outlasts the lawyer’s employment" (Canon 37, Code of Professional Responsibility) which means even after the relationship has been terminated, the duty to preserve the client’s confidences and secrets remains effective. Likewise Rule 21.02, Canon 21 of the Rules of Professional Responsibility provides 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 the full knowledge of the circumstances consents thereto."

On 29 April 2003, the Commission received a letter dated 24 April 2003 from Atty. Augusto M. Macam, who claims to represent complainant, William S. Uy, alleging that complainant is no longer interested in pursuing this case and requested that the same be dismissed. The aforesaid letter hardly deserves consideration as proceedings of this nature cannot be "interrupted by reason of desistance, settlement, compromise, restitution, withdrawal of the charges, or failure of the complainant to prosecute the same. (Section 5, Rule 139-B, Rules of Court). Moreover, in Boliver vs. Simbol, 16 SCRA 623,


the Court ruled that "any person may bring to this Court’s attention the misconduct of any lawyer, and action will usually be taken regardless of the interest or lack of interest of the complainant, if the facts proven so warrant."

IN VIEW OF THE FOREGOING, we find respondent Atty. Fermin L. Gonzales to have violated the Code of Professional Responsibility and it is hereby recommended that he be SUSPENDED for a period of SIX (6) MONTHS from receipt hereof, from the practice of his profession as a lawyer and member of the Bar.10

On June 21, 2003, the Board of Governors of the Integrated Bar of the Philippines issued Resolution No. XV-2003-365, 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 applicable laws and rules, and considering that respondent violated Rule 21.02, Canon 21 of the Canons of Professional Responsibility, Atty. Fermin L. Gonzales is hereby SUSPENDED from the practice of law for six (6) months.11

Preliminarily, we agree with Commissioner Villanueva-Maala that the manifestation of complainant Uy expressing his desire to dismiss the administrative complaint he filed against respondent, has no persuasive bearing in the present case.

Sec. 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 the charges, or failure of the complainant to prosecute the same.

This is because:

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. 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.12

Now to the merits of the complaint against the respondent.

Practice of law embraces any activity, in or out of court, which requires the application of law, as well as legal principles, practice or procedure and calls for legal knowledge, training and experience.13 While it is true that a lawyer may be disbarred or suspended for any misconduct, whether in his professional or private capacity, which shows him to be wanting in moral character, in honesty, probity and good demeanor or unworthy to continue as an officer of the court,14 complainant failed to prove any of the circumstances enumerated above that would warrant the disbarment or suspension of herein respondent.

Notwithstanding respondent’s own perception on the matter, a scrutiny of the records reveals that the relationship between complainant and respondent stemmed from a personal transaction or dealings between them rather than the practice of law by respondent. Respondent dealt with complainant only because he redeemed a property which complainant had earlier purchased from his (complainant’s) son. It is not refuted that respondent paid complainant P340,000.00 and gave him ample time to produce its title and execute the Deed of Redemption. However, despite the period given to him, complainant failed to fulfill his end of the bargain because of the alleged loss of the title which he had admitted to respondent as having prematurely transferred to his children, thus prompting respondent to offer his assistance so as to secure the issuance of a new title to the property, in lieu of the lost one, with complainant assuming the expenses therefor.

As a rule, an attorney-client relationship is said to exist when a lawyer voluntarily permits or acquiesces with the consultation of a person, who in respect to a business or trouble of any kind, consults a lawyer with a view of obtaining professional advice or assistance. It is not essential that the client should have employed the attorney on any previous occasion or that any retainer should Cases in Legal Ethics Bachelor of Laws 3A 191

have been paid, promised or charged for, neither is it material that the attorney consulted did not afterward undertake the case about which the consultation was had, for as long as the advice and assistance of the attorney is sought and received, in matters pertinent to his profession.15

Considering the attendant peculiar circumstances, said rule cannot apply to the present case. Evidently, the facts alleged in the complaint for "Estafa Through Falsification of Public Documents" filed by respondent against complainant were obtained by respondent due to his personal dealings with complainant. Respondent volunteered his service to hasten the issuance of the certificate of title of the land he has redeemed from complainant. Respondent’s immediate objective was to secure the title of the property that complainant had earlier bought from his son. Clearly, there was no attorney-client relationship between respondent and complainant. The preparation and the proposed filing of the petition was only incidental to their personal transaction.

Canon 21 of the Code of Professional Responsibility reads:

Canon 21 – A LAWYER SHALL PRESERVE THE CONFIDENCE AND SECRETS OF HIS CLIENT EVEN AFTER THE ATTORNEY-CLIENT RELATION IS TERMINATED.Rule 21.01 – A lawyer shall not reveal the confidences or secrets of his client except:a) When authorized by the client after acquainting him of the consequences of the disclosure;b) When required by law;c) When necessary to collect his fees or to defend himself, his employees or associates or by judicial action.

The alleged "secrets" of complainant were not specified by him in his affidavit-complaint. Whatever facts alleged by respondent against complainant were not obtained by respondent in his professional capacity but as a redemptioner of a property originally owned by his deceased son and therefore, when respondent filed the complaint for estafa against herein complainant, which necessarily involved alleging facts that would constitute estafa, respondent was not, in any way, violating Canon 21. There is no way we can equate the filing of the affidavit-complaint against herein complainant to a misconduct that is wanting in moral character, in honesty, probity and good demeanor or that renders him unworthy to continue as an officer of the court. To hold otherwise would be precluding any lawyer from instituting a case against anyone to protect his personal or proprietary interests.

WHEREFORE, Resolution No. XV-2003-365 dated June 21, 2003 of the Integrated Bar of the Philippines is REVERSED and SET ASIDE and the administrative case filed against Atty. Fermin L. Gonzales, docketed as A.C. No. 5280, is DISMISSED for lack of merit.

SO ORDERED.



Manila

SECOND DIVISION

A.C. No. 5108 May 26, 2005

ROSA F. MERCADO, complainant, vs.ATTY. JULITO D. VITRIOLO, respondent.

D E C I S I O N

PUNO, 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


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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, 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 Cases in Legal Ethics Bachelor of Laws 3A 194













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 ORDERED.

















Manila

A.C. No. 8242 October 2, 2009

REBECCA J. PALM, Complainant, vs.ATTY. FELIPE ILEDAN, JR., Respondent.

CARPIO, J.:

The Case

The case before the Court is a disbarment proceeding filed by Rebecca J. Palm (complainant) against Atty. Felipe Iledan, Jr. (respondent) for revealing information obtained in the course of an attorney-client relationship and for representing an interest which conflicted with that of his former client, Comtech Worldwide Solutions Philippines, Inc. (Comtech).

The Antecedent Facts


Complainant is the President of Comtech, a corporation engaged in the business of computer software development. From February 2003 to November 2003, respondent served as Comtech’s retained corporate counsel for the amount of P6,000 per month as retainer fee. From September to October 2003, complainant personally met with respondent to review corporate matters, including potential amendments to the corporate by-laws. In a meeting held on 1 October 2003, respondent suggested that Comtech amend its corporate by-laws to allow participation during board meetings, through teleconference, of members of the Board of Directors who were outside the Philippines.

Prior to the completion of the amendments of the corporate by-laws, complainant became uncomfortable with the close relationship between respondent and Elda Soledad (Soledad), a former officer and director of Comtech, who resigned and who was suspected of releasing unauthorized disbursements of corporate funds. Thus, Comtech decided to terminate its retainer agreement with respondent effective November 2003.

In a stockholders’ meeting held on 10 January 2004, respondent attended as proxy for Gary Harrison (Harrison). Steven C. Palm (Steven) and Deanna L. Palm, members of the Board of Directors, were present through teleconference. When the meeting was called to order, respondent objected to the meeting for lack of quorum. Respondent asserted that Steven and Deanna Palm could not participate in the meeting because the corporate by-laws had not yet been amended to allow teleconferencing.

On 24 March 2004, Comtech’s new counsel sent a demand letter to Soledad to return or account for the amount of P90,466.10 representing her unauthorized disbursements when she was the Corporate Treasurer of Comtech. On 22 April 2004, Comtech received Soledad’s reply, signed by respondent. In July 2004, due to Soledad’s failure to comply with Comtech's written demands, Comtech filed a complaint for Estafa against Soledad before the Makati Prosecutor’s Office. In the proceedings before the City Prosecution Office of Makati, respondent appeared as Soledad’s counsel.

On 26 January 2005, complainant filed a Complaint1 for disbarment against respondent before the Integrated Bar of the Philippines (IBP).

In his Answer,2 respondent alleged that in January 2002, Soledad consulted him on process and procedure in acquiring property. In April 2002, Soledad again consulted him about the legal requirements of putting up a domestic corporation. In February 2003, Soledad engaged his services as consultant for Comtech. Respondent alleged that from February to October 2003, neither Soledad nor Palm consulted him on confidential or privileged matter concerning the operations of the corporation. Respondent further alleged that he had no access to any record of Comtech.

Respondent admitted that during the months of September and October 2003, complainant met with him regarding the procedure in amending the corporate by-laws to allow board members outside the Philippines to participate in board meetings.

Respondent further alleged that Harrison, then Comtech President, appointed him as proxy during the 10 January 2004 meeting. Respondent alleged that Harrison instructed him to observe the conduct of the meeting. Respondent admitted that he objected to the participation of Steven and Deanna Palm because the corporate by-laws had not yet been properly amended to allow the participation of board members by teleconferencing.

Respondent alleged that there was no conflict of interest when he represented Soledad in the case for Estafa filed by Comtech. He alleged that Soledad was already a client before he became a consultant for Comtech. He alleged that the criminal case was not related to or connected with the limited procedural queries he handled with Comtech.

The IBP’s Report and Recommendation

In a Report and Recommendation dated 28 March 2006,3 the IBP Commission on Bar Discipline (IBP-CBD) found respondent guilty of violation of Canon 21 of the Code of Professional Responsibility and of representing interest in conflict with that of Comtech as his former client.

The IBP-CBD ruled that there was no doubt that respondent was Comtech’s retained counsel from February 2003 to November 2003. The IBP-CBD found that in the course of the meetings for the intended amendments of Comtech’s corporate by-laws, respondent obtained knowledge about the intended amendment to allow members of the Board of Directors who were outside the Philippines to participate in board meetings through teleconferencing. The IBP-CBD noted that respondent knew that the corporate by-laws have not yet been amended to allow the teleconferencing. Hence, when respondent, as representative of Harrison, objected


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to the participation of Steven and Deanna Palm through teleconferencing on the ground that the corporate by-laws did not allow the participation, he made use of a privileged information he obtained while he was Comtech’s retained counsel.

The IBP-CBD likewise found that in representing Soledad in a case filed by Comtech, respondent represented an interest in conflict with that of a former client. The IBP-CBD ruled that the fact that respondent represented Soledad after the termination of his professional relationship with Comtech was not an excuse.

The IBP-CBD recommended that respondent be suspended from the practice of law for one year, thus:

WHEREFORE, premises considered, it is most respectfully recommended that herein respondent be found guilty of the charges preferred against him and be suspended from the practice of law for one (1) year.4

In Resolution No. XVII-2006-5835 passed on 15 December 2006, the IBP Board of Governors adopted and approved the recommendation of the Investigating Commissioner with modification by suspending respondent from the practice of law for two years.

Respondent filed a motion for reconsideration.6

In an undated Recommendation, the IBP Board of Governors First Division found that respondent’s motion for reconsideration did not raise any new issue and was just a rehash of his previous arguments. However, the IBP Board of Governors First Division recommended that respondent be suspended from the practice of law for only one year.

In Resolution No. XVIII-2008-703 passed on 11 December 2008, the IBP Board of Governors adopted and approved the recommendation of the IBP Board of Governors First Division. The IBP Board of Governors denied respondent’s motion for reconsideration but reduced his suspension from two years to one year.

The IBP Board of Governors forwarded the present case to this Court as provided under Section 12(b), Rule 139-B7 of the Rules of Court.

The Ruling of this Court

We cannot sustain the findings and recommendation of the IBP.

Violation of the Confidentiality of Lawyer-Client Relationship

Canon 21 of the Code of Professional Responsibility provides:

Canon 21. A lawyer shall preserve the confidence and secrets of his client even after the attorney-client relationship is terminated. (Emphasis supplied)

We agree with the IBP that in the course of complainant’s consultations, respondent obtained the information about the need to amend the corporate by-laws to allow board members outside the Philippines to participate in board meetings through teleconferencing. Respondent himself admitted this in his Answer.

However, what transpired on 10 January 2004 was not a board meeting but a stockholders’ meeting. Respondent attended the meeting as proxy for Harrison. The physical presence of a stockholder is not necessary in a stockholders’ meeting because a member may vote by proxy unless otherwise provided in the articles of incorporation or by-laws. 8 Hence, there was no need for Steven and Deanna Palm to participate through teleconferencing as they could just have sent their proxies to the meeting.

In addition, although the information about the necessity to amend the corporate by-laws may have been given to respondent, it could not be considered a confidential information. The amendment, repeal or adoption of new by-laws may be effected by "the board of directors or trustees, by a majority vote thereof, and the owners of at least a majority of the outstanding capital stock, or at least a majority of members of a non-stock corporation."9 It means the stockholders are aware of the proposed amendments to the by-laws. While the power may be delegated to the board of directors or trustees, there is nothing in the records to show that a delegation was made in the present case. Further, whenever any amendment or adoption of new by-laws is made, copies of the








amendments or the new by-laws are filed with the Securities and Exchange Commission (SEC) and attached to the original articles of incorporation and by-laws.10 The documents are public records and could not be considered confidential.1avvphi1

It is settled that the mere relation of attorney and client does not raise a presumption of confidentiality. 11 The client must intend the communication to be confidential.12 Since the proposed amendments must be approved by at least a majority of the stockholders, and copies of the amended by-laws must be filed with the SEC, the information could not have been intended to be confidential. Thus, the disclosure made by respondent during the stockholders’ meeting could not be considered a violation of his client’s secrets and confidence within the contemplation of Canon 21 of the Code of Professional Responsibility.

Representing Interest in Conflict With the Interest of a Former Client

The IBP found respondent guilty of representing an interest in conflict with that of a former client, in violation of Rule 15.03, Canon 15 of the Code of Professional Responsibility which provides:

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.

We do not agree with the IBP.

In Quiambao v. Bamba,13 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.14 The Court has ruled that 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.15

We find no conflict of interest when respondent represented Soledad in a case filed by Comtech. The case where respondent represents Soledad is an Estafa case filed by Comtech against its former officer. There was nothing in the records that would show that respondent used against Comtech any confidential information acquired while he was still Comtech’s retained counsel . Further, respondent made the representation after the termination of his retainer agreement with Comtech. A lawyer’s immutable duty to a former client does not cover transactions that occurred beyond the lawyer’s employment with the client. 16 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.17

WHEREFORE, we DISMISS the complaint against Atty. Felipe Iledan, Jr. for lack of merit. SO ORDERED.



Manila

SECOND DIVISION


ANGELITA C. ORCINO, complainant, vs.ATTY. JOSUE GASPAR, respondent.

PUNO, J.:










On June 14, 1992, complainant Angelita C. Orcino filed with this Court a letter-complaint dated December 10, 1991 against respondent Atty. Josue Gaspar, her former counsel. Complainant prayed that this Court impose disciplinary sanctions on respondent for abandoning his duties and for failing to return the legal fees she fully paid for his services.

The complaint arose from the following facts: Complainant engaged the services of respondent to prosecute a criminal case she intended to file against several suspects in the slaying of her husband. In consideration thereof, complainant bound herself to pay respondent legal fees of P20,000.00 — P10,000.00 to be paid upon signing of the contract and the balance to be paid on or before the conclusion of the case. Complainant was also to pay P500.00 per appearance of respondent before the court and fiscal. This agreement was embodied in a contract executed on February 22, 1991. 1

In accordance with the contract, complainant paid respondent the sum of P5,000.00 on February 25, 1991, 2another P5,000.00 on March 31, 1991, 3 and P10,000.00 on May 21, 1991, 4 for a total of P20,000.00.

Forthwith, respondent entered into his duties. He interviewed witnesses and gathered evidence to build a case against the suspects. He drew up the necessary sworn statements and dutifully attended the preliminary investigation. The case was thereafter filed with the Regional Trial Court, Branch 37, Baloc, Sto. Domingo, Nueva Ecija. 5

As private prosecutor, respondent religiously attended the bail hearings for the accused although these hearings were postponed on motion of the accused's counsel. Respondent however failed to attend the hearing scheduled in August 1991. It was at this nearing that the court, over complainant's objections, granted bail to all the accused. After the hearing, complainant immediately went to respondent's residence and confronted him with his absence. 6Respondent explained that he did not receive formal notice of the hearing. 7 Complainant became belligerent and started accusing him of jeopardizing the case by his absence. Respondent said that her suspicions were based on rumors and intrigues fed to her by her relatives. 8 Complainant, however, continued accusing him belligerently. She asked for the records of the case saying that she could refer them to another lawyer. Stung by her words, respondent gave her the records. 9

Complainant never returned the records nor did she see respondent. On September 18, 1991, respondent filed before the trial court a "Motion to Withdraw as Counsel." 10 The motion did not bear the consent of complainant.

On October 23, 1991, the court issued an order directing respondent to secure complainant's consent to the motion "and his appearance as private prosecutor shall continue until he has secured this consent." 11

Complainant refused to sign her conformity to respondent's withdrawal. 12 Meanwhile, the hearings in the criminal case continued. Respondent did not appear at the hearings nor did he contact complainant. Complainant was thus compelled to engage the services of another lawyer. Hence, the letter-complaint.

We referred the letter-complaint to the Integrated Bar of the Philippines, Commission on Bar Discipline, for investigation, report and recommendation.

The rule in this jurisdiction is that a client has the absolute right to terminate the attorney-client relation at any time with or without cause. 13 The right of an attorney to withdraw or terminate the relation other than for sufficient cause is, however, considerably restricted. 14 Among the fundamental rules of ethics is the principle that an attorney who undertakes to conduct an action impliedly stipulates to carry it to its conclusion. 15 He is not at liberty to abandon it without reasonable cause. 16 A lawyer's right to withdraw from a case before its final adjudication arises only from the client's written consent or from a good cause. 17

Section 26 of Rule 138 of the Revised Rules of Court provides:

Sec. 26. Change of attorneys — An attorney may retire at any time from any action or special proceeding, by the written consent of his client filed in court. He may also retire at any time from an action or special proceeding, without the consent of his client, should the court, on notice to the client and attorney, and on hearing, determine that he ought to be allowed to retire. In case of substitution, the name of the attorney newly employed shall be entered on the docket of the court in place of the former one, and written notice of the change shall be given to the adverse party.

xxx xxx xxx


A lawyer may retire at any time from any action special proceeding with the written consent of his client filed in court and copy thereof served upon the adverse party. Should the client refuse to give his consent, the lawyer must file an application with the court. The court, on notice to the client and adverse party, shall determine whether he ought to be allowed to retire. The application for withdrawal must be based on a good cause. 18

In the instant case, complainant did not give her written consent to respondent's withdrawal. The court thus ordered respondent to secure this consent. Respondent allegedly informed the court that complainant had become hostile and refused to sign his motion. 19 He, however, did not file an application with the court for it to determine whether he should be allowed to withdraw.

Granting that respondent's motion without complainant's consent was an application for withdrawal with the court, we find that this reason is insufficient to justify his withdrawal from the case. Respondent's withdrawal was made on the ground that "there no longer exist[ed] the . . . confidence" between them and that there had been "serious differences between them relating to the manner of private prosecution." 20

Rule 22.01 of Canon 22 of the Code of Professional Responsibility provides:

CANON 22 — A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE CIRCUMSTANCES.

Rule 22.01— A lawyer may withdraw his services in any of the following cases:

a) When the client pursues an illegal or immoral course of conduct in connection with the matter he is handling;

b) When the client insists that the lawyer pursue conduct violative of these canons and rules;

c) When his inability to work with co-counsel will not promote the best interest of the client;

d) When the mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively;

e) When the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement;

f) When the lawyer is elected or appointed to public office; and

g) Other similar cases.

A lawyer may withdraw his services from his client only in the following instances: (a) when a client insists upon an unjust or immoral conduct of his case; (b) when the client insists that the lawyer pursue conduct violative of the Code of Professional Responsibility; (c) when the client has two or more retained lawyers and the lawyers could not get along to the detriment of the case; (d) when the mental or physical condition of the lawyer makes him incapable of handling the case effectively; (e) when the client deliberately fails to pay the attorney's fees agreed upon; (f) when the lawyer is elected or appointed to public office; (g) other similar cases.

The instant case does not fall under any of the grounds mentioned. Neither can this be considered analogous to the grounds enumerated. As found by the Commission on Bar Discipline, this case arose from a simple misunderstanding between complainant and respondent. Complainant was upset by respondent's absence at the hearing where bail was granted to the suspected killers of her husband. She vehemently opposed the grant of bail. It was thus a spontaneous and natural reaction for her to confront respondent with his absence. Her belligerence arose from her overzealousness, nothing more. Complainant's words and actions may have hurt respondent's feelings considering the work he had put into the case. But her words were uttered in a burst of passion. And even at that moment, complainant did not expressly terminate respondent's services. She made this clear when she refused to sign his "Motion to Withdraw as Counsel."

Assuming, nevertheless, that respondent was justified in terminating his services, he, however, cannot just do so and leave complainant in the cold unprotected. The lawyer has no right to presume that his petition for withdrawal will be granted by the court. 21 Until his withdrawal shall have been approved, the lawyer remains counsel of record who is expected by his client as well as Cases in Legal Ethics Bachelor of Laws 3A 201

by the court to do what the interests of his client require. 22 He must still appear on the date of hearing 23 for the attorney-client relation does not terminate formally until there is a withdrawal of record. 24

Respondent expressly bound himself under the contract to bring the criminal case to its termination. He was in fact paid in full for his services. Respondent failed to comply with his undertaking, hence, it is but fair that he return to complainant half of the amount paid him. The peculiar circumstances of the case have rendered it impossible for respondent and complainant to continue their relation under the contract.

IN VIEW WHEREOF, respondent is admonished to exercise more prudence and judiciousness in dealing with his clients. He is also ordered to return to complainant within fifteen (15) days from notice the amount of ten thousand pesos (P10,000.00) representing a portion of his legal fees received from the latter with a warning that failure on his part to do so will result in the imposition of stiffer disciplinary action.

SO ORDERED.



Manila

ADM. CASE NO. 5018 January 26, 2007

ROGELIO H. VILLANUEVA, Complainant, vs.ATTY. AMADO B. DELORIA, Respondent.

This treats of the Complaint1 for Disbarment dated February 17, 1999 filed by Rogelio H. Villanueva (Villanueva) against Atty. Amado B. Deloria in connection with HLRB Case No. REM-080592-5166, entitled "Spouses Conrado De Gracia v. Estate of Jaime Gonzales, et al." Atty. Deloria, a former full-time Commissioner of the Housing and Land Use Regulatory Board (HLURB), appeared as counsel for the spouses De Gracia.



Villanueva avers that a decision in that case was rendered by Housing and Land Use Arbiter, 2 Atty. Teresita R. Alferez, requiring the Estate of Jaime Gonzales to, among other things, refund to the spouses De Gracia the amount of P69,000.00 plus interest at the prevailing commercial interest rates. The case was eventually assigned to Villanueva upon the latter’s designation as Arbiter.

It appears that Atty. Deloria filed a Motion for Issuance of Substitute Judgment and for Consignation 3 claiming that the Estate of Jaime Gonzales does not want to pay interest based on commercial interest rates. Villanueva asserts, however, that Atty. Deloria’s allegation is belied by two motions filed by counsel for the Estate of Jaime Gonzales which merely seek to clarify the precise interest rate applicable to the case in order for it to fully comply with the decision.

Atty. Deloria’s misrepresentation is allegedly a violation of the Code of Professional Responsibility (Code), particularly Canons 1,4

10,5 126 and 197 thereof, the Attorney’s Oath of Office and Art. 19 of the Civil Code. Atty. Deloria also allegedly violated Canon 11 8 of the Code because he sought the substitution of a decision which he knew had already become final and partially executed.

Villanueva notes that Atty. Deloria enclosed with his motion a check in the amount of P69,000.00 payable to the order of the Estate of Jaime Gonzales and Corazon Gonzales, representing the principal refunded to the spouses De Gracia in compliance with the decision. Villanueva states that the check was drawn against Atty. Deloria’s personal checking account in violation of Canon 16 9 of the Code.

Moreover, according to Villanueva, Atty. Deloria offered him 50% of the recoverable amount in the case if he resolves the latter’s motion favorably.10 Atty. Deloria’s conduct allegedly violates the previously cited canons of the Code, Canon 13,11 Rule 15.06,12 Canon 15 of the Code, Art. 212 of the Revised Penal Code, the Attorney’s Oath of Office and Art. 19 of the Civil Code.

Villanueva also alleges that Atty. Deloria used his influence as former Commissioner of the HLURB to persuade Atty. Alferez to impose interest based on commercial rates instead of the interest rate fixed in Resolution No. R-421 13 and Memorandum Circular No. 19,14 both of which provide a uniform rate of interest in decisions involving refunds. Atty. Deloria also allegedly used his connections in the HLURB to prevent Villanueva from releasing an Order denying the former’s motion and to prevail upon the agency’s Legal Services Group to interpret the term "commercial rate of interest" in a way that is favorable to his client’s case, again in violation of the Code.15

Further, Villanueva claims that Atty. Deloria assisted his client in filing an unfounded criminal case against him before the Office of the Ombudsman with the purpose of getting even with Villanueva for denying their motion. When his client pursued this course of action, Atty. Deloria allegedly should have withdrawn his services in accordance with Rule 22.01,16 Canon 22 of the Code.

In his Comment17 dated September 22, 2000, Atty. Deloria denies any wrongdoing and sought the dismissal of the Complaint for lack of merit. He avers that the refusal of the Estate of Jaime Gonzales to pay the interest stipulated in the decision is evident from the various motions it has filed. On the alleged commingling of his funds with those of his clients’, Atty. Deloria claims that the spouses De Gracia requested him to advance the amount intended for consignation as they were then on vacation in the United States. He also maintains that he did not exert any influence on the HLURB to rule in his clients’ favor, adding that the draft order which he filed in the case is required under the rules of the agency.

Atty. Deloria counters that it is Villanueva who has exhibited partiality in favor of the Estate of Jaime Gonzales by failing to rule on the motions for clarification filed by the latter, thereby forcing the spouses De Gracia to wait for an inordinately long time for the decision in their favor to be fully implemented.

Villanueva, in his Reply18 dated November 10, 2000, contends that he would have been indicted by the Office of the Ombudsman if it were true that his Order in the case was motivated by bias and partiality in favor of the Estate of Jaime Gonzales.

In a Resolution19 dated February 19, 2001, we referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.

Investigating Commissioner Renato G. Cunanan submitted a Report20 dated September 29, 2005, finding merit in the Complaint and recommending that Atty. Deloria be suspended from the practice of law for two (2) years and/or be fined in the amount of P20,000.00. This recommendation was annulled and set aside by the IBP in its Resolution No. XVII-2006-279 dated May 26, 2006. The case was instead dismissed for lack of merit.





















The report and recommendation of the Investigating Commissioner appears to be based solely on the Rollo of the case which the Court sent to the IBP pursuant to the Resolution dated February 19, 2001. The Investigating Commissioner did not conduct any hearing to determine the veracity of the allegations in Villanueva’s Complaint and the truthfulness of Atty. Deloria’s answers thereto.

A formal investigation is a mandatory requirement which may not be dispensed with except for valid and compelling reasons.21 In Baldomar v. Paras,22 we held:

Complaints against lawyers for misconduct are normally addressed to the Court. If, at the outset, the Court finds a complaint to be clearly wanting in merit, it outrightly dismisses the case. If, however, the Court deems it necessary that further inquiry should be made, such as when the matter could not be resolved by merely evaluating the pleadings submitted, a referral is made to the IBP for a formal investigation of the case during which the parties are accorded an opportunity to be heard. An ex-parte investigation may only be conducted when respondent fails to appear despite reasonable notice. x x x

Rule 139-B of the Rules of Court provides the procedure for investigation in disbarment and disciplinary proceedings against attorneys before the IBP, thus:

Sec. 8. Investigation.—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.

The Investigator shall terminate the investigation within three (3) months from the date of its commencement, unless extended for good cause by the Board of Governors upon prior application.

Willful failure or refusal to obey a subpoena or any other lawful order issued by the Investigator shall be dealt with as for indirect contempt of court. The corresponding charge shall be filed by the Investigator before the IBP Board of Governors which shall require the alleged contemnor to show cause within ten (10) days from notice. The IBP Board of Governors may thereafter conduct hearings, if necessary, in accordance with the procedure set forth in this Rule for hearings before the Investigator. Such hearing shall as far as practicable be terminated within fifteen (15) days from its commencement. Thereafter, the IBP Baord of Governors shall within a like period of fifteen (15) days issue a resolution setting forth its findings and recommendations, which shall forthwith be transmitted to the Supreme Court for final action and if warranted, the imposition of penalty.

We find that due observance of the foregoing rules is necessary for the proper resolution of this case.

WHEREFORE, the instant administrative case is REMANDED to the Integrated Bar of the Philippines for further proceedings. The IBP is also directed to act on this referral with deliberate dispatch. SO ORDERED.



Manila

A.C. No. 6166 October 2, 2009

MARIA EARL BEVERLY C. CENIZA, Complainant, vs.ATTY. VIVIAN G. RUBIA, Respondent.


In a verified complaint1 dated July 25, 2003 filed with the Office of the Bar Confidant, Maria Earl Beverly C. Ceniza charged Atty. Vivian G. Rubia with grave misconduct, gross ignorance of the law and falsification of public documents.





The facts of the case are as follows:

On May 3, 2002, complainant sought the legal services of the respondent in regard to the share of her mother-in-law in the estate of her husband Carlos Ceniza. As she had no money to pay for attorney’s fees since her mother-in-law would arrive from the United States only in June 2002, respondent made her sign a promissory note for P32,000.00, which amount was lent by Domingo Natavio. After her mother-in-law arrived and paid the loan, respondent furnished them a copy of the complaint for partition and recovery of ownership/possession representing legitime but with no docket number on it. They kept on following up the progress of the complaint. However, three months lapsed before respondent informed them that it was already filed in court. It was then that they received a copy of the complaint with "Civil Case No. 4198" and a rubber stamped "RECEIVED" thereon. However, when complainant verified the status of the case with the Clerk of Court of the Regional Trial Court of Davao del Sur, she was informed that no case with said title and docket number was filed.2

Further, complainant alleged that respondent was guilty of gross ignorance of the law for intending to file the complaint in Davao del Sur when the properties to be recovered were located in Koronadal, South Cotabato and Malungon, Sarangani Province, in violation of the rule on venue that real actions shall be filed in the place where the property is situated. Complainant also alleged that respondent forged the signature of her husband, Carlito C. Ceniza, in the Affidavit of Loss attached to a petition for the issuance of a new owner’s duplicate certificate of title filed with the Regional Trial Court (RTC) of Digos City, Branch 20, in Misc. Case No. 114-2202.3

In her comment, respondent assailed the personality of the complainant to institute the administrative complaint for disbarment as she was not a party to the action for partition and recovery of ownership/possession. As such, her allegations in the administrative complaint were all hearsay, self-serving and unsubstantiated. Further, the charge of forgery of the Affidavit of Loss was belied by the March 3, 2003 decision of the trial court, wherein Carlito C. Ceniza affirmed his statements in the said affidavit when he was called to testify.4

On February 2, 2004, the Court resolved to refer the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.

On April 29, 2004, respondent filed a Supplemental Comment explaining the rubber stamped "RECEIVED" on the complaint. According to her, when her staff Jan Kirt Lester Soledad was at the RTC Office of the Clerk of Court, she called him through cellular phone and directed him to stop the filing of the complaint as the same lacked certain attachments. However, one copy thereof was already stamped "RECEIVED" by the receiving court personnel, who also assigned a docket number. She kept the copies of the complaint, including the one with the stamp, to be filed later when the attachments are complete.

Meanwhile, on November 7, 2005, respondent filed a Manifestation with Urgent Motion praying that the administrative complaint be likewise dismissed in view of the dismissal of the criminal case due to complainant’s apparent lack of interest to prosecute.

On January 19, 2007, the IBP Investigating Commissioner recommended that respondent be found guilty of falsification of public document and be meted the penalty of suspension from the practice of law for a period of three years. The report reads in part, as follows:

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. It involved no private interest. The complainant or person who called the attention of the court to the attorney’s misconduct is in no sense a party and has generally no interest in its outcome except as all good citizens may have in the proper administration of justice. It affords no redress for private grievance. (Tejan v. Cusi, 57 SCRA 154)

Prescinding from the aforequoted ruling, it is therefore irrelevant and immaterial if herein complainant is not a party to the subject civil complaint prepared by 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 has been proven.

On the payment of the acceptance fee in the amount of P32,000.00, respondent’s contention that she acted as guarantor of Carlos Ceniza, complainant’s husband, when he borrowed money from a money lender, Domingo Natavio, the amount representing the acceptance, does not inspire belief. The promissory note dated May 3, 2002, appended as Annex "A" of the complaint-affidavit eloquently shows that consistent with the complainant’s allegation, she was made to borrow said amount to be paid as respondent’s acceptance fee. It bears stress that the date of the promissory note is the same date when respondent’s services were engaged





leading to the preparation of the subject civil complaint. Complainant’s allegation is further enhanced by the fact that such promissory note was even notarized by the respondent.

On the alleged filing of the subject civil complaint, it is undisputed that the same was not filed before the Office of the Clerk of Court, RTC Davao Del Sur, as evidenced by a Certification from the said office appended as Annex "A" of complainant’s Manifestation dated October 14, 2005. Thus, the claim of complainant that respondent falsified or caused it to falsify the stamp marked received dated May 10, 2002 including the case number "4198", finds factual and legal bases.

It bears stress that a copy of the subject civil complaint was obtained by complainant from the respondent herself who tried to impress upon the former that contrary to her suspicion, the subject civil complaint was already filed in court. However, inquiry made by the complainant shows otherwise.

Respondent’s contention that after one copy of the complaint was already stamped by court personnel in preparation for receiving the same and entering in the court’s docket, she caused it to be withdrawn after realizing that the same lacked certain attachments, is bereft of merit.

In the first place, respondent miserably failed to mention these lacking attachments that allegedly caused the withdrawal of the complaint. Secondly, and assuming arguendo that the withdrawal was due to lacking attachments, how come the same was not filed in the next office day complete with attachments. And lastly, the Certification of the Clerk of Court clearly states that Civil Case No. 4188 is not the case of Mercedes Callejo vda. De Ceniza, et al. vs. Charlotte Ceniza, et al.

x x x x

The fact that the City Prosecutor’s Office of Digos, upon motion for reconsideration of the respondent, dismissed a similar complaint filed by herein complainant will not in anyway affect the above captioned administrative complaint.

The pendency of a criminal action against the respondent, from the facts of which the disciplinary proceeding is predicated, does not pose prejudicial question to the resolution of the issues in the disbarment case. (Calo vs. Degano, 20 SCRA 447) His conviction is not necessary to hold the lawyer administratively liable because the two proceedings and their objectives are different and it is not sound public policy to await the final resolution of a criminal case before the court act on a complaint against a lawyer as it may emasculate the disciplinary power of the court. (In re Brillantes, 76 SCRA 1) Nor is his acquittal, by this fact alone, a bar to an administrative complaint against him. (Piatt vs. Abordo, 58 Phil. 350).

The other allegations in the complaint about ignorance of the law are found to be without basis.

R E C O M M E N D A T I O N

WHEREFORE, it is most respectfully recommended that herein respondent Atty. Vivian C. Rubia, be found guilty of the charge of falsification of public document and be meted the penalty of suspension from the practice of law for a period of three (3) years.

On May 31, 2007, the Board of Governors of the IBP issued a Resolution adopting the Investigating Commissioner’s recommendation with modification, as follows:

RESOLUTION NO. XVII-2007-237

Adm. Case No. 6166

Maria Earl Beverly C. Ceniza vs.Atty. Vivian G. Rubia

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 Respondent’s falsification of public document, Atty. Vivian G. Rubia is hereby DISBARRED.


However, in its December 11, 2008 Resolution, the Board of Governors reconsidered its May 31, 2007 Resolution by reducing the recommended penalty of disbarment to five years suspension from the practice of law, thus:

RESOLUTION NO. XVIII-2008-715

Adm. Case No. 6166

Maria Earl Beverly C. Ceniza vs.Atty. Vivian G. Rubia

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED the Recommendation of the Board of Governors First Division 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, the Motion for Reconsideration is hereby DENIED with modification, that Resolution RESOLUTION NO. XVII-2007-237 of the Board of Governors dated 31 May 2007 recommending the Disbarment of Atty. Vivian G. Rubia is reduced to Five (5) years Suspension from the practice of law.

On April 20, 2009, the IBP forwarded the instant case to this Court as provided under Rule 139-B, Section 12(b) of the Rules of Court.

Complainant seeks the disbarment of respondent from the practice of law for gross misconduct, ignorance of the law and for falsification of public document. In disbarment proceedings, the burden of proof rests upon the complainant, and for the court to exercise its disciplinary powers, the case against the respondent must be established by clear, convincing and satisfactory proof. Considering the serious consequence of the disbarment or suspension of a member of the Bar, this Court has consistently held that clear preponderant evidence is necessary to justify the imposition of the administrative penalty.5

The sole issue in this case is whether or not there is preponderant evidence to warrant the imposition of administrative sanction against the respondent.

In accusing respondent of falsification of public document, complainant alleged that respondent misrepresented to her that the complaint was already filed in court, when in fact, upon verification with the RTC Clerk of Court, it was not. Such misrepresentation is shown by the copy of the complaint with a stamped "RECEIVED" and docket number thereon. Apart from said allegations, complainant has not proferred any proof tending to show that respondent deliberately falsified a public document.

A perusal of the records shows that complainant’s evidence consists solely of her Affidavit-Complaint and the annexes attached therewith. She did not appear in all the mandatory conferences set by the investigating commissioner in order to give respondent the chance to test the veracity of her assertions. It is one thing to allege gross misconduct, ignorance of the law or falsification of public document and another to demonstrate by evidence the specific acts constituting the same.

Indeed, complainant has no way of knowing the surrounding circumstances behind the filing of the complaint by respondent’s staff because she was not present when the same was filed with the trial court. Complainant failed to disprove by preponderant evidence respondent’s claim that the case was not filed but was in fact withdrawn after it was stamped with "RECEIVED" and assigned with a docket number. We find this explanation satisfactory and plausible considering that the stamp did not bear the signature of the receiving court personnel, which is normally done when pleadings are received by the court.

Further, the certification of the RTC Clerk of Court that the complaint was not filed and that "CIVIL CASE NO. 4198" pertained to another case, did not diminish the truthfulness of respondent’s claim, but even tended to bolster it. Necessarily, as the complaint was not filed, docket number "4198" indicated in the copy of the complaint was assigned to another case thereafter filed in court.

Thus, for lack of preponderant evidence, the investigating commissioner’s ruling that respondent was guilty of falsification of public document, as adopted by the IBP Board of Governors, has no factual basis to stand on.1avvphi1

However, we find that respondent committed some acts for which she should be disciplined or administratively sanctioned.

We find nothing illegal or reprehensible in respondent’s act of charging an acceptance fee of P32,000.00, which amount appears to be reasonable under the circumstances. The impropriety lies in the fact that she suggested that complainant borrow money from Domingo Natavio for the payment thereof. This act impresses upon the Court that respondent would do nothing to the cause of complainant’s mother-in-law unless payment of the acceptance fee is made. Her duty to render legal services to her client with Cases in Legal Ethics Bachelor of Laws 3A 207


competence and diligence should not depend on the payment of acceptance fee, which was in this case promised to be paid upon the arrival of complainant’s mother-in-law in June 2002, or barely a month after respondent accepted the case.

Respondent’s transgression is compounded further when she severed the lawyer-client relationship due to overwhelming workload demanded by her new employer Nakayama Group of Companies, which constrained her to return the money received as well as the records of the case, thereby leaving her client with no representation. Standing alone, heavy workload is not sufficient reason for the withdrawal of her services.

Moreover, respondent failed to maintain an open line of communication with her client regarding the status of their complaint.

Clearly, respondent violated the Lawyer’s Oath which imposes upon every member of the bar the duty to delay no man for money or malice, Rules 18.03 and 18.04 of Canon 18, and Canon 22 of the Code of Professional Responsibility, thus:

CANON 18 - A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.x x x xRule 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.

CANON 22 - A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE CIRCUMSTANCES.

When a lawyer accepts to handle a case, whether for a fee or gratis et amore, he undertakes to give his utmost attention, skill and competence to it, regardless of its significance. Thus, his client, whether rich or poor, has the right to expect that he will discharge his duties diligently and exert his best efforts, learning and ability to prosecute or defend his (client’s) cause with reasonable dispatch. Failure to fulfill his duties will subject him to grave administrative liability as a member of the Bar. For the overriding need to maintain the faith and confidence of the people in the legal profession demands that an erring lawyer should be sanctioned.6

WHEREFORE, in view of the foregoing, respondent Atty. Vivian G. Rubia is found GUILTY of violation of Rule 18.03 and Canon 22 of the Code of Professional Responsibility. Accordingly, she is SUSPENDED from the practice of law for six (6) months effective immediately, with a warning that similar infractions in the future will be dealt with more severely.

Let all courts, through the Office of the Court Administrator, as well as the Integrated Bar of the Philippines and the Office of the Bar Confidant, be notified of this Decision, and be it duly recorded in the personal file of respondent Atty. Vivian G. Rubia.

SO ORDERED.



Manila

FIRST DIVISION

A.C. No. 4215 May 21, 2001

FELICISIMO 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.


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:

xxx

RESOLVED 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-99-48

xxx

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, 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 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.nêt

SO ORDERED.


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