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EN BANC

[G.R. No. 108251. January 31, 1996]

CEFERINO S. PAREDES, JR. and MANSUETO J. HONRADA, petitioners, vs. THE HONORABLE SANDIGANBAYAN, Second Division; HONORABLE ANIANO DESIERTO, in his official capacity as Special Prosecutor; HONORABLE CONRADO M. VASQUEZ, in his official capacity as Ombudsman; and TEOFILO GELACIO, respondents. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION; MAY BE INITIATED AND CONCLUDED BY DIFFERENT INVESTIGATORS. Petitioners contend that the filing of charges against them was not recommended by the prosecutor who conducted the preliminary investigation, but by another one who, it is alleged, had no part at all in the investigation. There is no basis for petitioners claim that the resolution was prepared by one who did not take any part in the investigation. What happened here is similar to the trial of a case by one judge who, without being able to finish the hearing, ceases from office for one reason or another and by necessity the decision is rendered by another judge who has taken over the conduct of the case. Such an arrangement has never been thought to raise any question of due process. For what is important is that the judge who decides does so on the basis of the evidence in record. It does not matter that he did not conduct the hearing of that case from the beginning. ID.; EVIDENCE; WEIGHT AND SUFFICIENCY; CERTIFICATE; VALUE NOT DIMINISHED BY FAILURE TO ANTICIPATE THAT HIS CERTIFICATE WOULD BE USED IN EVIDENCE. - That Violan gave credence to the Certification of Judge Ario in concluding that no arraignment had been held in Criminal Case No. 1393 is not proof that Violan was biased against petitioners. Although Judge Ario subsequently gave an Affidavit, he never in that Affidavit repudiated what he had earlier stated. Judge Ario never denied his earlier Certification that Criminal Case No. 1393 never reached the arraignment stave, because having learned that Paredes, Jr. had petitioned the Ministry of Justice for a review of the fiscals resolution, Judge Ario suspended action until March 17, 1986 and in fact the fiscal later moved for the dismissal of the case. The fact that Judge Ario did not anticipate that his certificate might be used in evidence, much less in the criminal cases now pending in the Sandiganbayan, is not a reason to disregard it. The fact is that Judge Ario did not retract his previous Certification that there was no arraignment held in Criminal Case No. 1393. If that is the truth, then the fact that he now says he did not anticipate that his certificate would be used in evidence in any case would not diminish a whit the value of the certificate.

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3. ID.; EVIDENCE; ADMISSIBILITY; RETRACTION OF AFFIDAVIT MADE IN VIOLATION OF ATTORNEY-CLIENT PRIVILEGE, INADMISSIBLE. - There is nothing in the resolution of Violan which shows that she based her conclusion (that petitioners were probably guilty of falsification of public documents) on Atty. Sansaets retraction. In her resolution, all that she stated is that the confessio n of Atty. Sansaet has important bearing in this case. Otherwise she did not cite the confession as proof of the falsification of public documents. To the contrary, Violan thought that the retraction was made in violation of attorney-client privilege and therefore, would be inadmissible in evidence. Violan could not, therefore, have relied on the affidavit of retraction. 4. ID.; DISQUALIFICATION OF JUDGES; DIVERGENCE OF OPINIONS BETWEEN A JUDGE AND A PARTYS COUNSEL, NOT A GROUND. - Mere divergence of opinions between a judge and a partys counsel as to applicable laws and jurisprudence is not sufficient ground for disqualifying the judge from hearing the case on the ground of bias and partiality. ID.; ACTIONS; MERE FILING OF SEVERAL CASES BASED ON THE SAME INCIDENT, NOT FORUM-SHOPPING; TEST. - The mere filing of several cases based on the same incident does not necessarily constitute forum-shopping. The test is whether the several actions filed involve the same transactions, essential facts, and circumstances. ID.; ID.; ID.; CASES INVOLVING SUBSTANTIALLY DIFFERENT TRANSACTIONS, FACTS AND CIRCUMSTANCES, NOT FORUM SHOPPING; CASE AT BAR. - Here, although several cases were filed by the same complainant against the same defendant and the subject matter of the actions of two of the cases was the same incident (i.e., the application for free patent of petitioner Ceferino Paredes, Jr.), the fact is that the several cases involve essentially different facts, circumstances and causes of action. Thus, Criminal Case No. 1393, which was filed in the MCTC of San Francisco,. Agusan del Sur, was for perjury, based on false statements allegedly made in 1975 by petitioner Paredes, Jr. in connection with his free patent application. Criminal Case No. 13800, which was filed in the Sandiganbayan, although based on the filing of the same application for free patent, was for violation of the Anti-graft and Corrupt Practices Act, on the allegation that petitioner, as Provincial Attorney, had unduly influenced the Public Land Inspector to secure the approval of his free patent application. On the other hand, as already stated, the present cases (Criminal Case Nos. 17791, 17792 and 17793) are for falsification of court records pertaining to Criminal Case No. 1393. A.P. C ase No. P-90-396 is an administrative case against petitioner Honrada based on the same incident and facts that are subject of the preceding criminal cases. The rest are incidents of these cases, being the petition for review and motions for reconsideration ifl Criminal Case No. 13800 and A.P. Case No. P-90-396. Thus the present cases involve substantially different transactions, facts and circumstances from those involved in the other, though related, cases. Although they arose from the same incident, i.e., petitioners public land application, they involve different issues. It is well settled that a single act may offend against two or more distinct and related provisions of law or that the same act may give rise to criminal as well as

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administrative liability. As such, they may be prosecuted simultaneously or one after another, so long as they do not place the accused in double jeopardy of being punished for the same offense. 7. ID.; CRIMINAL PROCEDURE; DISMISSAL OF ADMINISTRATIVE COMPLAINT DOES NOT NECESSARILY BAR FILING OF CRIMINAL PROSECUTION. Petitioners call attention to the fact that the administrative complaint against petitioner Honrada was dismissed. They invoke our ruling in Maceda v. Vasquez that only this Court has the power to oversee cou rt personnels compliance with laws and take the appropriate administrative action against them for their failure to do so and that no other branch of the government may exercise this power without running afoul of the principle of separation of powers. But one thing is administrative liability. Quite another thing is the criminal liability for the same act. Our determination of the administrative liability for falsification of public documents is in no way conclusive of his lack of criminal liability. As we have held in Tan v. Comelec, the dismissal of an administrative case does not necessarily bar the filing of a criminal prosecution for the same or similar acts which were the subject of the administrative complaint. ID.; ID.; POLITICALLY MOTIVATED FILING OF CRIMINAL CHARGE CANNOT JUSTIFY PROHIBITION OF CRIMINAL PROSECUTION IF THERE IS EVIDENCE TO SUPPORT IT. - That the filing of the charges is politically motivated cannot justify the prohibition of a criminal prosecution if there is otherwise evidence to support them. Here a preliminary investigation of the complaint against petitioners was held during which petitioners were heard. Their evidence, as well as that of private respondent Gelacio, was considered in great detail in the resolution of GIO II Violan. Violans resolution was reviewed by Special Prosecutor Erdulfo Querubin who made his own detailed resolution concurring in the finding of Violan. We cannot say that, in approving the resolutions of two investigators, the respondent Ombudsman and Special Prosecutor committed an abuse of their discretion. ID.; ID.; PRELIMINARY INVESTIGATION; PURPOSE. - A preliminary investigation is not a trial. The function of the government prosecutor during the preliminary investigation is merely to determine the existence of probable cause.

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10. ID.; ID.; POLITICAL HARASSMENT; REQUISITES; CASE AT BAR. - To warrant a finding of political harassment so as to justify the grant of the extraordinary writs of certiorari and prohibition, it must be shown that the complainant possesses the power and the influence to control the prosecution of cases. Here, the prosecution is handled by the Office of the Ombudsman. Although it is intimated that petitioner Ceferino S. Paredes, Jr. is the subject of persecution by his political enemies in Agusan del Sur, it has not been alleged, much less shown, that his enemies have influence and power over the national prosecution service. To show political harassment petitioners must prove that public prosecutor, and not just the private complainant, is acting in bad faith in prosecuting the case or has lent himself to a scheme that could have no other purpose than to place the accused in contempt and disrepute. For it is only if he does so may the prosecutor, in conducting the preliminary investigation, be said to have deserted the performance of his office to

determine objectively and impartially the existence of probable cause and thus justify judicial intervention in what is essentially his province. APPEARANCES OF COUNSEL Rolando A. Suarez & Associates for petitioners. Esmeraldo I. Guloy for private respondent. DECISION MENDOZA, J.: This is a petition for certiorari, prohibition and injunction, seeking to set aside the resolution dated December 9, 1992 of the Office of the Ombudsman, denying petitioners motion for the reinvestigation of three cases of falsification of public documents which had been filed against petitioners and to restrain the Second Division of the Sandiganbayan from hearing the cases. The cases originated in a complaint filed on January 23, 1990 by Teofilo Gelacio, then vice mayor of San Francisco, Agusan del Sur. Charged with petitioner Paredes, Jr., who was then the provincial governor, were petitioner Mansueto J. Honrada, clerk of court of the Municipal Circuit Trial Court of San Francisco, Agusan del Sur, and Atty. Generoso Sansaet, counsel of petitioner Paredes, Jr. in Criminal Case No. 1393 of the MCTC. In his complaint Gelacio alleged that MCTC clerk of court Honrada, in conspiracy with petitioner Paredes, Jr. and the latters counsel Atty. Sansaet, certified as true a copy of a Notice of Arraignment dated July 1, 1985 and of the Transcript of Stenographic Notes on July 9, 1985, showing that an arraignment had been held in Criminal Case No. 1393 and issued a certification dated March 24, 1986 to that effect when in truth no arraignment had been held in that case. In support of his allegation, Gelacio submitted a Certification issued by Judge Ciriaco C. Ario of the MCTC to the effect that Criminal Case No. 1393 had never reached the arraignment stage before it was dismissed on motion of the prosecution.1 A preliminary investigation of the complaint was conducted by Public Prosecutor Albert Axalan who had been deputized to assist the Deputy Ombudsman for Mindanao. Petitioners and Atty. Sansaet, as respondents in the case, filed their respective counteraffidavits. Paredes, Jr. denied the charges. He alleged that their filing was politically motivated and that the complainant, Teofilo Gelacio, was being used by his political enemies to harass him. For his part, Honrada maintained that an arraignment had indeed been held in Criminal Case No. 1393 as certified by him. His claim was corroborated by Atty. Generoso Sansaet, who stated in an affidavit that he was present during the arraignment, being the counsel of Paredes, Jr. Sansaet called Judge Arios Certification, denying that there was an arraignment, the product of a faltering mind.2 Prosecutor Axalan submitted his resolution to the Deputy Ombudsman for Mindanao, but before it could be acted upon, Atty. Sansaet, one of the respondents, retracted his earlier statement to the effect that Paredes, Jr. had been arraigned before the case against him was dismissed. In an Affidavit of Explanations and Rectifications

dated July 29, 1991, Sansaet claimed that there was really no arraignment held in Criminal Case No. 1393 and that Honrada made false certifications which were used to support the dismissal (on the ground of double jeopardy) of Criminal Case No. 13800 which was then pending against Paredes, Jr. in the Sandiganbayan.3 As a result of this development, Paredes, Jr. and Honrada, were required to comment. Paredes, Jr. claimed that the Sansaets a boutface was the result of their political estrangement.4 For his part Honrada insisted that an arraignment in Criminal Case No. 1393 had indeed been held and that in making the certifications in question he stated the truth. On the basis of the evidence of the parties, Gay Maggie Balajadia-Violan, Graft Investigation Officer of the Office of the Deputy Ombudsman, recommended on February 24, 1992 that petitioners and Atty. Sansaet be charged with Falsification of Public Documents. Her recommendation was indorsed by Deputy Ombudsman Cesar Nitorreda to Ombudsman Conrado Vasquez, Who, upon the recommendation of Erdulfo Querubin of the Office of the Special Prosecutor, approved the filing of three informations for falsification of public documents against Paredes, Jr., Honrada and Sansaet with the Sandiganbayan.5 The cases were docketed as Criminal Case Nos. 17791, 17792 and 17793. On July 9, 1992, petitioners moved to quash the informations. Their motion was denied by the Sandiganbayan in its resolution of August 25, 1992, as was the motion for reconsideration they subsequently filed. Petitioners next moved for a reinvestigation of the cases. They complained (1) that the resolution, recommending the filing of the cases, was not prepared by Public Prosecutor Axalan, who had conducted the preliminary investigation, but by GIO II Gay Maggie Balajadia-Violan, who allegedly had no hand in the investigation; (2) that Violan relied solely on the retraction of Atty. Generoso Sansaet and the Certification of Judge Ciriaco C. Ario and disregarded evidence in favor of petitioners; and (3) that Prosecutor Erdulfo Q. Querubin, who reviewed Violans recommendation, could not be expected to act fairly because he was the prosecutor in Criminal Case No. 13800 in connection with which the allegedly falsified records were used and in fact appealed the dismissal of the case to this Court.6 Although these grounds were the same ones invoked by petitioners in their motion to quash, which the Sandiganbayan had denied, the Sandiganbayan nonetheless directed the prosecution to conduct a reinvestigation of the cases. Accordingly, the Office of the Ombudsman required complainant, the herein respondent Teofilo Gelacio, to comment on petitioners Motion for Reinvestigation. In a resolution dated December 9, 1992, Special Prosecution Officer Carlos D. Montemayor recommended denial of petitioners motion. He note d that the matters raised in the motion were the same ones contained in petitioners motion to quash which had already been denied and that in fact a cursory examination of the resolution of GIO II Gay Maggie Balajadia-Violan shows that the existence of a prima facie case has been duly established and the same was reviewed by SPO III Erdulfo Querubin and also the approval of Honorable Conrado M. Vasquez. He held that as no newly -

discovered evidence or denial of due process had been shown, there was no basis for petitioners request for a reinvestigation. Montemayors recommendation was approved by Special Prosecutor Aniano Desierto and Ombudsman Conrado Vasquez. Accordingly the Sandiganbayan set the cases for trial. The present petition for certiorari, prohibition and injunction was then filed to enjoin the trial of the criminal cases. Petitioners pray that: (1) Upon the filing of this petition and before its final resolution, to issue a temporary restraining order immediately ordering the Sandiganbayan, Second Division, to cease and desist from proceeding with the scheduled hearing of this case; (2) After due hearing, to adjudge that respondents Honorable Special Prosecutor Aniano A. Desierto and Honorable Ombudsman Conrado M. Vasquez have committed grave abuse of discretion, amounting to lack of jurisdiction, in issuing and approving the questioned resolution dated December 9, 1992 and ordering said resolution denying petitioners motion for reinvestigation be annulled and set aside; (3) To adjudge that the Sandiganbayan, Second Division, is without jurisdiction to try Criminal Case Nos. 17791, 17792, and 17793 all of which are apparently intended as political harassments against the herein petitioners, particularly as against Ceferino S. Paredes, Jr., and prohibiting the said court from proceeding (with) the hearing of the said cases on January 15, 1993, and likewise ordering the said court to dismiss the said cases, with costs against respondents and Teofilo Gelacio; and (4) To issue a writ of injunction, thereby making the restraining order permanent, and prohibiting the respondents and complainant Teofilo Gelacio from committing any act or acts tending to harass and to inflict further damage and injury to petitioners, such as but not limited to the continuation and further prosecution of said Criminal Cases Nos. 17791, 17792, and 17793. Petitioners contend (1) that their constitutional right to due process was violated at various stages of the preliminary investigation; (2) that the prosecutors closed their eyes to the fact that in filing the cases private respondent Teofilo Gelacio engaged in forumshopping; and (3) that the cases were filed for political harassment and there is in fact no prima facie evidence to hold them answerable for falsification of public documents.7

I. Anent the first ground, petitioners contend that the filing of charges against them was not recommended by the prosecutor who conducted the preliminary investigation, but by another one who, it is alleged, had no part at all in the investigation.

Petitioners contention has no basis in fact. It appears that the preliminary investigation of the complaint filed by Teofilo Gelacio was initially conducted by Public Prosecutor Albert Axalan who had been deputized to assist the Deputy Ombudsman for Mindanao in the investigation of graft cases. Axalan prepared a resolution. The records do not show what his recommendation was. What is clear, however, is that no action had been taken on his recommendation in view of the fact that Atty. Generoso Sansaet, one of the respondents in the cases, retracted an earlier statement he had given to the effect that petitioner Ceferino S. Paredes, Jr. had been arraigned in Criminal Case No. 1393 before the case was dismissed. Atty. Sansaet now claimed that no arraignment had been held after all. This new development required the reopening of the investigation (in fact Paredes, Jr. and Honrada were required to comment on the retraction), the reevaluation of the evidence, and the preparation of a new resolution. Gay Maggie Balajadia-Violan, Graft Investigation Officer II of the Office of the Deputy Ombudsman for Mindanao, was designated to conduct the investigation and prepare a report, which she did. Violans recommendation was indorsed by Deputy Ombudsman Cesar Nitorreda to Ombudsman Conrado Vasquez, who then referred the matter to Special Prosecution Officer Ill Erdulfo Querubin for review. Querubin concurred in the recommendation of Violan but suggested that, instead of one, three separate informations for falsification of public documents be filed against respondents (Paredes, Jr., Honrada and Sansaet), considering that three documents were involved. On June 26, 1992, Ombudsman Conrado Vasquez approved the recommendations of Violan and Querubin. Accordingly three cases were filed against petitioners with the Sandiganbayan, where they were docketed as Criminal Case Nos. 17791, 17792 and 17793. There is thus no basis for petitioners claim that the resolution was prepared by one who did not take any part in the investigation. What happened here is similar to the trial of a case by one judge who, without being able to finish the hearing, ceases from office for one reason or another and by necessity the decision is rendered by another judge who has taken over the conduct of the case. Such an arrangement has never been thought to raise any question of due process. For what is important is that the judge who decides does so on the basis of the evidence in record. It does not matter that he did not conduct the hearing of that case from the beginning. Petitioners nonetheless charge that GIO II Violan and Prosecutor Querubin did not have such cold neutrality of an impartial judge to be trusted to conduct a fair investigation. According to petitioners, Violan gave credence to the Certification issued by Judge Ciriaco C. Ario when the fact is that Judge Ario subsequently executed an affidavit, dated November 5, 1990, in which he explained that he issued the said certificate without expectation that the same would be used as evidence in any case and that the use of said certificate . . . is against [his] conscience. Worse, it is contended, Violan considered the Affidavit of Explanations and Rectifications executed by Atty. Sansaet, which she should have disregarded because it was made in violation of the confidentiality of attorney-client communication under Rule 130, 24 (b) of the Rules of Court. As for Prosecutor Querubin, they claim that he is the same prosecutor

who had handled the prosecution of Criminal Case No. 13800 against petitioner Paredes, Jr. in the Sandiganbayan and after its dismissal, sought review in this Court and, therefore, he was biased against petitioners. That Violan gave credence to the Certification of Judge Ario in concluding that no arraignment had been held in Criminal Case No. 1393 is not proof that Violan was biased against petitioners. Although Judge Ario subsequently gave an Affidavit, he never in that Affidavit repudiated what he had earlier stated. In his Affidavit he merely stated: 1. That I am the incumbent Municipal Circuit Trial Court Judge in the First Municipal Circuit Trial Court of San Francisco-Rosario-Bunawan, Agusan del Sur; 2. That I am the same Ciriaco C. Ario who issued a certificate in Criminal Case No. 1393 entitled Pp. vs. Ceferino S. Paredes, Jr. which certificate was used as evidence in administrative complaint against Mansueto J. Honrada, in the Administrative Complaint No. A.M. P-90-396 and Criminal Complaint against Mansueto J. Honrada, incumbent Governor Ceferino S. Paredes, Jr. and Atty. Generoso S. Sansaet before the Ombudsman under Criminal Case No. OBM-MIN-90-0053 (sic) entitled Teofilo Gelacio vs. Mansueto J. Honrada, et. al.; 3. That honestly, the said certificate was issued without my expectation that the same be used as evidence in any case and I be a witness; 4. That the use of said certificate as evidence in the above-mentioned cases is against my conscience, more so upon discovery that the cases aforesaid are known to me to be politically motivated and involves [sic] big time politicians in Agusan del Sur about whom I am not at liberty to name names for security reason; 5. That in view of all the foregoing, I am not interested to testify in any investigation to be conducted in connection thereof, either in the administrative or criminal proceedings. Thus, Judge Ario never denied his earlier Certification that Criminal Case No. 1393 never reached the arraignment stage, because having learned that Paredes, Jr. had petitioned the Ministry of Justice for a review of the fiscals resolution, Judge Ario suspended action until March 17, 1986 and in fact the fiscal later moved for the dismissal of the case. The fact that Judge Ario did not anticipate that his certificate might be used in evidence, much less in the criminal cases now pending in the Sandiganbayan, is not a reason to disregard it. The fact is that Judge Ario did not retract his previous Certification that there was no arraignment held in Criminal Case No. 1393. If that is the truth, then the fact that he now says he did not anticipate that his certificate would be used in evidence in any case would not diminish a whit the value of the certificate. Nor was consideration of the retraction of Atty. Sansaet proof that GIO II Violan was biased against petitioners. Petitioners contend that Sansaets confession was privileged

and that Violan herself acknowledged that the affidavit of retraction might be inadmissible in court. In the first place, there is nothing in the resolution of Violan which shows that she based her conclusion (that petitioners were probably guilty of falsification of public documents) on Atty. Sansaets retraction. In her resolution, all that she stated is that the confession of Atty. Sansaet has important bearing in this case. Otherwise she did not cite the confession as proof of the falsification of public documents. To the contrary, Violan thought that the retraction was made in violation of attorney-client privilege and therefore, would be inadmissible in evidence. Violan could not, therefore, have relied on the affidavit of retraction. Moreover, the admissibility of this piece of evidence is a question for the Sandiganbayan to determine in the event it is used by the prosecution. It is untenable to ascribe bias and partiality to the investigator because she considered this retraction in her resolution of the case. Even if she relied on it mere divergence of opinions between a judge and a partys counsel as to applicable laws and jurisprudence is not sufficient ground for disqualifying the judge from hearing the case on the ground of bias and partiality.8 As for Prosecutor Querubin, simply because he was the one who handled the prosecution of Criminal Case No. 13800, in connection with which the documents allegedly falsified were used by petitioners, is not a reason for supposing he could not act fairly. As any other counsel in a case, it was his duty to act with full devotion to [his clients] genuine interests, warm zeal in the maintenance and defense of his rights, and the exertion of his utmost learning and ability.9 It cannot be casually assumed that because of his engagement in that case he had lost his objectivity to such an extent that he forsook his duty to see to it that justice was done and not to act out of vindictiveness. Indeed, Querubin is a public prosecutor, not a private attorney. In the familiar terminology, he is the representative not of an ordinary party to a controversy but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all and whose interest, therefore, in a criminal prosecution is not that it shall win a case but that justice shall be done.10 It may therefore be assumed that he was merely performing an official duty and that nothing personal was involved in his recommendation to prosecute the cases. Above all, it should be stressed that the decision to charge petitioners in the Sandiganbayan was the decision not only of one person but of all those who in one way or another were called upon to act in the cases, namely: Graft Investigation Officer Gay Maggie Balajadia-Violan, Deputy Ombudsman Cesar Nitorreda, Ombudsman Conrado Vasquez, and Special Prosecutor Aniano Desierto. Indeed, Querubins only contribution to the process was to suggest the filing of three separate informations of falsification of public documents against petitioners.

II.

The second ground for the petition is that the Office of the Ombudsman closed its eyes to the fact that in filing these cases, complainant Teofilo Gelacio is guilty of forumshopping and that his purpose for the filing of the cases is simply political harassment. To buttress their contention, petitioners call attention to the factual background of the cases.11 According to petitioners, way back in 1984 private respondent Teofilo Gelacio charged petitioner Paredes, Jr. with perjury on the ground that in 1975 Paredes, Jr. made false statements in an affidavit which he used in support of his application for a free patent. As already noted, the case which was filed with the Municipal Trial Court of San Francisco, Agusan del Sur, and docketed there as Criminal Case No. 1393, was dismissed on March 24, 1986upon motion of the prosecution. On October 28, 1986, Teofilo Gelacio filed another complaint against petitioner Paredes, Jr., then the acting governor of the province. The complaint was for violation of 3 (a) of Republic Act 3019, otherwise known as Anti-Graft and Corrupt Practices Act. Allegedly, in 1976 petitioner Paredes, Jr., then the Provincial Attorney of Agusan del Sur, unduly persuaded, induced and influenced the Public Land Inspector to approve his (Paredes, Jrs) application for a free patent. According to petitioners, this case involved the same application for a free patent of petitioner Paredes, Jr., which was the subject of Criminal Case No. 1393. The information was filed by Special Prosecutor Erdulfo Querubin in the Sandiganbayan where it was docketed as Criminal Case No. 13800. Petitioner Paredes, Jr. moved to quash the information, but the court denied his motion. He then filed a motion for reconsideration. It was in connection with this motion that the procurement of allegedly falsified documents, now the subject of prosecution, was made by petitioner Paredes, Jr. The documents were used to support his motion for reconsideration. On August 1, 1991, the Sandiganbayan reconsidered its previous resolution and dismissed Criminal Case No. 13800, although on the ground of prescription. The Office of the Ombudsman sought a review of the action of the Sandiganbayan, but its petition was dismissed by this Court on July 3, 1992 in G.R. No. 101724. The motion for reconsideration filed by the prosecution was likewise denied. As an offshoot of the execution of these documents, two cases were filed by Teofilo Gelacio: (1) an administrative complaint (A.P. Case No. P-90-3 96) for falsification of public documents which was filed with this Court against Mansueto Honrada, the clerk of the MCTC who made certifications and (2) a complaint for falsification of public documents, initially filed as OMB-MIN-90-0053 with the Office of the Ombudsman and eventually as Criminal Case Nos. 17791, 17792, and 17793 in the Sandiganbayan, against the petitioners and Atty. Generoso Sansaet. The first case was dismissed for insufficiency of the evidence. But with respect to the second complaint, Graft Investigation Officer Violan found probable cause to proceed against petitioners and against Atty. Sansaet and so recommended the filing of a case against them. Her recommendation was approved by the Ombudsman on June 26, 1992, although upon the recommendation of Special Prosecutor Querubin three separate informations were filed with the Sandiganbayan. Earlier on July 29, 1991, Atty.

Sansaet, one of the respondents, executed an Affidavit of Explanations and Rectifications in which he stated that, contrary to his previous affidavit, there was no arraignment held in Criminal Case No. 1393. A. Petitioners contend that these cases should be dismissed, being merely the latest in a series of cases which arose out of the same alleged incident - i.e. that of allegedly having induced the land inspector to approve his (Paredes, Jr.s) land application,12 for having been filed in violation of the rules on forum-shopping. Petitioners cite the following statement in Crisostomo v. Securities and Exchange Commission:13 There is forum-shopping whenever as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another. The principle applies not only with respect to suits filed in the courts while an administrative proceeding is pending as in this case, in order to defeat administrative processes and in anticipation of an unfavorable administrative ruling and a favorable court ruling. . . A violation of this rule shall constitute contempt of court and shall be a cause for summary dismissal of both petitions, without prejudice to the taking of appropriate action against the counsel or the party concerned. The mere filing of several cases based on the same incident does not necessarily constitute forum-shopping. The test is whether the several actions filed involve the same transactions, essential facts, and circumstances.14Here, although several cases were filed by the same complainant against the same defendant and the subject matter of the actions of two of the cases was the same incident (i.e., the application for free patent of petitioner Ceferino Paredes, Jr.), the fact is that the several cases involve essentially different facts, circumstances and causes of action. Thus, Criminal Case No. 1393, which was filed in the MCTC of San Francisco, Agusan del Sur, was for perjury, based on false statements allegedly made in 1975 by petitioner Paredes, Jr. in connection with his free patent application. Criminal Case No. 13800, which was filed in the Sandiganbayan, although based on the filing of the same application for free patent, was for violation of the Anti-graft and Corrupt Practices Act, on the allegation that petitioner, as Provincial Attorney, had unduly influenced the Public Land Inspector to secure the approval of his free patent application. On the other hand, as already stated, the present cases (Criminal Case Nos. 17791, 17792 and 17793) are for falsification of court records pertaining to Criminal Case No. 1393. A.P. Case No. P90-396 is an administrative case against petitioner Honrada based on the same incident and facts that are subject of the preceding criminal cases. The rest are incidents of these cases, being the petition for review and motions for reconsideration in Criminal Case No. 13800 and A.P. Case No. P-90-396. Thus the present cases involve substantially different transactions, facts and circumstances from those involved in the other, though related, cases. Although they arose from the same incident, i.e., petitioners public land application, they involve different issues. It is well settled that a single act may offend against two or more distinct and related provisions of law15 or that the same act may give rise to criminal as well as administrative liability.16 As such, they may be prosecuted simultaneously or one

after another, so long as they do not place the accused in double jeopardy of being punished for the same offense. Petitioners call attention to the fact that the administrative complaint against petitioner Honrada was dismissed. They invoke our ruling in Maceda v. Vasquez17 that only this Court has the power to oversee court personnels compliance with laws and take the appropriate administrative action against them for their failure to do so and that no other branch of the government may exercise this power without running afoul of the principle of separation of powers. But one thing is administrative liability. Quite another thing is the criminal liability for the same act. Our determination of the administrative liability for falsification of public documents is in no way conclusive of his lack of criminal liability. As we have held in Tan v. Comelec,18 the dismissal of an administrative case does not necessarily bar the filing of a criminal prosecution for the same or similar acts which were the subject of the administrative complaint. Petitioners assertion that private respondent Alterado has resorted to forumshopping is unacceptable. The investigation then being conducted by the Ombudsman on the criminal case for falsification and violation of the Anti-Graft and Corrupt Practices Act, on the one hand, and the inquiry into the administrative charges by the COMELEC, on the other hand, are entirely independent proceedings. Neither would the results in one conclude the other. Thus an absolution from a criminal charge is not a bar to an administrative prosecution (Office of the Court administrator v. Enriquez, 218 SCRA 1) or vice versa.19 B. As final argument, petitioners allege that the complaint in Criminal Case Nos. 17791, 17792 and 17793 was filed by political enemies of petitioner Paredes, Jr. merely to harass him and that there is in fact no probable cause to support the prosecution of these cases. Petitioners cite the following which allegedly indicate that the charges below have merely been trumped up: (1) The affidavit of Agusan del Sur District Citizens Attorney Lou Nueva, stating that then Congressman Democrito O. Plaza instructed Atty. Leonardo Cadiz to secure a certification from Judge Ciriaco C. Ario that no arraignment had been held in Criminal Case No. 1393, threatening that if the judge refused to give the certification, he (Congressman Plaza) would do everything against Judge Ciriaco C. Ario, including reviving certain cases against Judge Ario;20 and (2) The affidavit, dated November 5, 1990, of Judge Ario in which he stated that he did not expect that the certificate which he had previously issued would be used in evidence and that the use of the certificate in the cases below was against his conscience, because the cases were politically motivated and he was not going to testify in any investigation concerning such certificate.21 At the same time petitioners seek to minimize the retraction of Atty. Sansaet by ascribing political motivation for its execution. Petitioner Ceferino Paredes, Jr. claims that Sansaets obs ession has been to win in an election and that his loss to petitioner Paredes, Jr. in the May 11, 1992 congressional elections was Sansaets sixth defeat. As for private respondent Teofilo Gelacio, petitioners say he is a political leader ofDemocrito Plaza. They claim

that in 1991 Atty. Sansaet changed with Democrito Plaza and Teofilo Gelacio.

political

affiliation

and

allied

himself

Petitioners argue that the certifications made by the clerk of court with respect to an arraignment allegedly held on July 9, 1985 in Criminal Case No. 1393 is conclusive and cannot be altered by Atty. Sansaets claim to the contrary. They cite what is now Rule 132, 23 of the Revised Rules on Evidence, which provides that public instruments are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter. We find the foregoing averments to be unpersuasive. First of all, that the filing of the charges is politically motivated cannot justify the prohibition of a criminal prosecution if there is otherwise evidence to support them. Here a preliminary investigation of the complaint against petitioners was held during which petitioners were heard. Their evidence, as well as that of private respondent Gelacio, was considered in great detail in the resolution of GIO II Violan. Violans resolution was reviewed by Special Prosecutor Erdulfo Querubin who made his own detailed resolution concurring in the finding of Violn. We cannot say that, in approving the resolutions of two investigators, the respondent Ombudsman and Special Prosecutor committed an abuse of their discretion. Indeed, this Court is loath to interfere with the discretion of the Ombudsman unless such discretion is clearly shown to have been abused. As explained in Young v. Office of the Ombudsman:22 The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant. There are instances, constituting exceptions to the general rule, when this Court will intervene in the prosecution of cases. Some of these instances were enumerated in Brocka v. Enrile,23 as follows: a. Where injunction is justified by the necessity to afford protection to the constitutional rights of the accused; (Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95) b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs. Albano, supra; Fortun vs. Labang, et al. L-38383, May 27 1981, 104 SCRA 607) c. When there is a prejudicial question which is sub judice;. (De Leon vs. Mabanag, 70 Phil. 202)

d. When the acts of the officer are without or in excess of authority; (Planas vs. Gil, 67 Phil 62) e. Where the prosecution is under an invalid law, ordinance or regulation; (Young vs. Rafferty, 33 Phil 556; Yu Co Eng vs. Trinidad, 47 Phil. 385, 389) f. When double jeopardy is clearly apparent; (Sangalang vs. People and Avendia, 109 Phil. 1140) g. Where the court has no jurisdiction over the offense; (Lopez vs. City Judge, L-25795, October 29, 1966, 18 SCRA 616). h. Where it is a case of persecution rather than prosecution; (Rustia vs. Ocampo, CA-G.R. No. 4760, March 25, 1960) i. Where the charges are manifestly false and motivated by the lust for vengeance; (Recto vs. Castelo, 18 L.J. (1953), cited in Ranoa vs. Alvendia, CA G.R. No. 30720-R, October 8, 1962; cf Guingona, et al. vs. City Fiscal, L60033,April 4, 1984, 128 SCRA 577). j. When there is clearly no prima facie case against the accused and motion to quash on that ground has been denied; (Salonga vs. Pano, et al., L59524, February 18, 1985, 134 SCRA 438); and k. Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners. (Rodriguez vs. Castelo, L-6374, August 1, 1953) (cited in Regalado, REMEDIAL LAW COMPENDIUM, p. 188 1988 Ed). But none of these instances is present here. What petitioners raise are questions which go to the weight to be given to the affidavits by Atty. Nueva and Judge Ario. These are matters for the trial courts appreciation. A preliminary investigation is not a trial. The function of the government prosecutor during the preliminary investigation is merely to determine the existence of probable cause.24 As we explained in Pilapil vs. Sandiganbayan,25 this function involves only the following: Probable cause is a reasonable ground of presumption that a matter is, or may be, wellfounded, such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so. (Words and Phrases, Probable Cause v. 34, p. 12) The term does not mean actual and positive cause nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge. Secondly, to warrant a finding of political harassment so as to justify the grant of the extraordinary writs of certiorari and prohibition, it must be shown that the complainant

possesses the power and the influence to control the prosecution of cases. Here, the prosecution is handled by the Office of the Ombudsman. Although it is intimated that Petitioner Ceferino S. Paredes, Jr. is the subject of persecution by his political enemies in Agusan del Sur, it has not been alleged, much less shown, that his enemies have influence and power over the national prosecution service. To show political harassment petitioners must prove that public prosecutor, and not just the private complainant, is acting in bad faith in prosecuting the case26 or has lent himself to a scheme that could have no other purpose than to place the accused in contempt and disrepute.27 For it is only if he does so may the prosecutor, in conducting the preliminary investigation, be said to have deserted the performance of his office to determine objectively and impartially the existence of probable cause and thus justify judicial intervention in what is essentially his province. WHEREFORE, the petition for certiorari and prohibition is DISMISSED. SO ORDERED. Narvasa, C.J. (Chairman), Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Francisco, Hermosisima, Jr., and Panganiban, JJ., concur. A.C. No. 4058 March 12, 1998 BENGUET ELECTRIC COOPERATIVE, INC. complainant, vs. ATTY. ERNESTO B. FLORES, respondent.

PANGANIBAN, J.: The profession of law exacts the highest standards from its members and brooks no violation of its code of conduct. Accordingly, a lawyer who trifles with judicial processes, engages in forum shopping and blatantly lies in his pleadings must be sanctioned. The Case This is an administrative complaint against Atty. Ernesto Flores filed by Benguet Electric Cooperative, Inc. (BENECO) before this Court on July 5, 1993, seeking his removal or suspension from the bar for forum shopping, which amounted to "grave misconduct, . . . unduly delaying the administration of justice, and violating with impunity his oath of office and applicable laws and jurisprudence." 1 After the respondent submitted his Comment, dated August 21, 1993, we referred the case to the Integrated Bar of the Philippines (IBP) on September 27, 1993 for investigation, report and recommendation. On August 15, 1997, we received a resolution from the IBP Board of Governors, finding respondent guilty of violating

Canons 10 and 12 of the Code of Professional Responsibility and recommending his suspension from the practice of law for a period of six months, viz: RESOLUTION NO. XII-97-149 Adm. Case NO. 4058 Benguet Electric Cooperative, Inc. vs. Atty. Ernesto B. Flores 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, hereinmande [sic] 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. Ernesto Flores is hereby SUSPENDED from the practice of law for six (6) months for violating the provision of Canon[s] 10 and 12 of the Code of Professional Responsibility. 2 The Facts Because the parties 3 agreed to dispense with the presentation of testimonial evidence, the case was submitted for resolution on the basis of their documentary evidence. As found by Investigating Commissioner Plaridel C. Jose, the facts are as follows: . . . On February 25, 1993, Labor Arbiter Irenarco Rimando of the National Labor Relations Commission, Regional Arbitration Branch, Cordillera Administrative Region, Baguio City, issued a Writ of Execution (. . .) in NLRC Case No. RAB-10313-84 to enforce the decision rendered by the Supreme Court on May 18, 1992 in G.R. No. 89070 (Benguet Electric Cooperative, Inc. vs. NLRC, 209 SCRA 55). The Writ of Execution was issued on motion of Benguet Electric Cooperative (BENECO for short) to collect the amount of P344,000.00 which it paid to Peter Cosalan during the pendency of the case before the Supreme Court, on the basis of its decision ordering the respondent board members "to reimburse petitioner BENECO any amount that it may be compelled to pay to respondent Cosalan by virtue of the decision of Labor Arbiter Amado T. Adquilen." After issuance of the writ of execution, the respondent, as new counsel for the losing litigant-members of the BENECO Board of Directors, filed a Motion for Clarification with the Third Division of the Supreme Court in G.R. No. 89070, the minute resolution to wit: "to note without action the aforesaid motion". Thereafter, the respondent instituted a suit docketed as Civil Case NO. 2738-R (. . .) with the Regional Trial Court, Branch 7, Baguio City, seeking to enjoin the

defendants Clerk of Court, et al. from levying on their properties in satisfaction of the said writ of execution. That case, however, was dismissed by the Presiding Judge Clarence Villanueva in his Order dated March 18, 1993 (. . .). Accordingly, the Office of the Clerk of Court, MTC, Baguio City, through Sheriff III Wilfredo Mendez, proceeded to levy on the properties of the losing board members of BENECO. Thus, a sale at public auction was set on June 1, 1993, at 10:00 o'clock in the morning in front of the Baguio City Hall, per Sheriff's Notice of Sale dated May 4, 1993 (. . .), of the properties of Abundio Awal and Nicasio Aliping[,] two of the losing members of the Board of Directors of BENECO in the aforementioned case. Respondent claims in his comment (. . .) that Branch 7, motu proprio, dismissed Civil Case No. 2738-R for lack of jurisdiction on March 18, 1993, which dismissal was [sic] became final due to respondent's failure to perfect an appeal therefrom which claim according to the complainant, constitute[s] deliberate misrepresentation, if not falsehood, because the respondent indeed interposed an appeal such that on May 11, 1993, the RTC 7 of Baguio City transmitted the entire record of Civil Case No. 2738-8 to the Court of Appeals per certified machine copy of the letter transmittal of same date (. . .). While respondent "never essentially intended to assail the issuance by the NLRC of the Writ of Execution . . . nor sought to undo it" (. . .) the complaint in Civil Case No. 2738-R which he filed prays for the immediate issuance of a temporary restraining order and/or preliminary writ of injunction for defendants Clerk of Court and Ex-Officio City Sheriff to cease and desist from enforcing the execution and levy of the writ of execution issued by the NLRC-CAR, pending resolution of the main action in said court (. . .) which complainant likewise claims as an unprocedural maneuver to frustrate the execution of the decision of the Supreme Court in G.R. No. 89070 in complete disregard of settled jurisprudence that regular courts have no jurisdiction to hear and decide questions which arise and are incidental to the enforcement of decisions, orders and awards rendered in labor cases citing the case of Cangco vs. CA, 199 SCRA 677, a display of gross ignorance of the law. On May 26, 1993, respondent again filed for Abundio Awal and Nicasio Aliping with the Regional Trial Court, Branch 9, La Trinidad, Benguet, separate complaints for Judicial Declaration of Family Home Constituted, Ope Lege, and thus Exempt from Levy and Execution the subject properties with Damages, etc. docketed as Civil Cases Nos. 93-F-0414 (. . .) and 93-F-0415 (. . .), which are essentially similar actions to enjoin the enforcement of the judgment rendered in NLRC Case No. RAB-1-0313-84. He also filed an urgent MotionEx-parte (. . .) praying for temporary restraining order in these two (2) cases. The complainant further alleges that respondent's claim for damages against the defendant Sheriff is another improper and unprocedural maneuver which is

likewise a violation of respondent's oath not to sue on groundless suit since the said Sheriff was merely enforcing a writ of execution as part of his job. Recommendation of the IBP As noted earlier, Investigating Commissioner Plaridel C. Jose recommended, and the IBP Board of Governors concurred, that respondent be suspended from the bar for six months for: 1. Falsehood, for stating in his comment before this Court that the order of the RTC dismissing the complaint in Civil Case No. 2738-R was not appealed on time 2. Failure to comply with Supreme Court Circular No. 28-91 on forum shopping Commissioner Jose ratiocinated: A cursory glance of (sic) . . . the complaint filed by the respondent in Civil Case No. 2738-R before the RTC of Baguio City, which complaint was signed and verified under oath by the respondent, reveals that it lacks the certification required by Supreme Court Circular No. 28-91 which took effect on January 1, 1992 to the effect that "to the best of his knowledge, no such action or proceeding is pending in the Supreme Court, Court of Appeals or different divisions thereof or any tribunal or agency. If there is any other action pending, he must state the status of the same. If he should learn that a similar action or proceeding has been filed or pending before the Supreme Court, Court of Appeals or different divisions thereof or any tribunal or agency[,] he should notify the court, tribunal or agency within five (5) days from such notice." Among the other penalties, the said circular further provides that the lawyer may also be subjected to disciplinary proceedings for non-compliance thereof. In sum, it is clear that the respondent violated the provisions of Canon[s] 10 and 12 of the Code of Professional Responsibility under which the lawyer owes candor, fairness and good faith to the court and exert[s] every effort and consider[s] it his duty to assist in the speedy and efficient administration of justice. 4 This Court's Ruling We adopt and affirm the recommendation of the IBP suspending the respondent from the bar, but we increase the period from six (6) months to one (1) year and six (6) months. Forum Shopping

Circular No. 28-91, 5 dated September 4, 1991 which took effect on January 1, 1992, requires a certificate of non-forum shopping to be attached to petitions filed before this Court and the Court of Appeals. This circular was revised on February 8, 1994. The IBP found that the respondent had violated it, because the complaint he filed before the RTC of Baguio City "lack[ed] the certification required by Supreme Court Circular No. 28-91." 6 We distinguish. Respondent's failure to attach the said certificate cannot be deemed a violation of the aforementioned circular, because the said requirement applied only to petitions filed with this Court and the Court of Appeals. 7 Likewise inapplicable is Administrative Circular No. 04-94 dated February 8, 1994 which extended the requirement of a certificate of non-forum shopping to all initiatory pleadings filed in all courts and quasi-judicialagencies other than this Court and the Court of Appeals. Circular No. 04-94 became effective only on April 1, 1994, but the assailed complaint for injunction was filed on March 18, 1993, and the petition for the constitution of a family home was instituted on May 26, 1993. Be that as it may, respondent is still guilty of forum shopping. In Chemphil Export and Import Corporation vs. Court of Appeals, 8 this Court declared that "(t)he rule against forum shopping has long been established and subsequent circulars 9 of this Court merely formalized the prohibition and provided the appropriate penalties against transgressors." The prohibition is found in Section 1(e) of Rule 16 and Section 4 of Rule 2 of the 1964 Rules of Court, which provide: Sec. 1. Grounds. Within the time for pleading, a motion to dismiss the action may be made on any of the following grounds: xxx xxx xxx (e) That there is another action pending between the same parties for the same cause; xxx xxx xxx 10 Sec. 4. Effect of splitting a single cause of action. If two or more complaints are brought for different parts of a single cause of action, the filing of the first may be pleaded in abatement of the other or others, in accordance with section 1(e) of Rule 16, and a judgment upon the merits in any one is available as a bar in the others. 11 The prohibition is also contained in Circular No. 28-91. This circular did not only require that a certification of non-forum shopping be attached to the petitions filed before this Court or the Court of Appeals; it also decreed that forum shopping constituted direct contempt of court and could subject the offending lawyer to disciplinary action. The third paragraph thereof reads:

3. Penalties. (a) Any violation of this Circular shall be a cause for the summary dismissal of the multiple petition or complaint. (b) Any willful and deliberate forum shopping by any party and his lawyer wit the filing of multiple petitions and complaints to ensure favorable action shall constitute direct contempt of court. (c) The submission of false certification under Par. 2 of the Circular shall likewise constitute contempt of Court, without prejudice to the filing of criminal action against the guilty party. The lawyer may also be subjected to disciplinary proceedings. (Emphasis supplied.) The foregoing were substantially reproduced in Revised Circular No. 28-91 12 and Administrative Circular No. 04-94. 13 In a long line of cases, this Court has held that forum shopping exists when, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another, 14 or when he institutes two or more actions or proceedings grounded on the same cause, on the gamble that one or the other court would make a favorable disposition. 15 The most important factor in determining the existence of forum shopping is the "vexation caused the courts and parties-litigants by a party who asks different courts to rule on the same or related causes or grant the same or substantially the same reliefs." 16 After this Court rendered its Decision 17 in Benguet Electric Cooperative, Inc. vs. National Labor Relations Commission, et al. 18 and upon motion of BENECO, Labor Arbiter Irenarco R. Rimando issued a writ of execution19 ordering the clerk of court and ex officio city sheriff of the Municipal Trial Court of Baguio City to levy on and sell at public auction personal and real property of the members of the Board of Directors of BENECO. On March 18, 1993, Respondent Flores, acting as counsel for BENECO Board Members Victor Laoyan, Nicasio Aliping, Lorenzo Pilando and Abundio Awal, filed with the RTC an injunction suit praying for the issuance of a temporary restraining order (TRO) "to preserve the status quo as now obtaining between the parties," as well as a writ of preliminary preventive injunction ordering the clerk of court and the ex officio city sheriff of the MTC of Baguio to "cease and desist from enforcing by execution and levy the writ of execution from the NLRC-CAR, pending resolution of the main action raised in court." 20 When this injunction case was dismissed, Respondent Flores filed with another branch of the RTC two identical but separate actions both entitled "Judicial Declaration of Family Home Constituted, ope lege, Exempt from Levy and Execution; with Damages, etc.," docketed as Civil Case Nos. 93-F-0414 and 93-F-0415. 21 The said complaints

were supplemented by an "Urgent Motion Ex Parte" 22 which prayed for an order to temporarily restrain Sheriff Wilfredo V. Mendez from proceeding with the auction sale of plaintiffs' property "to avoid rendering ineffectual and functus [oficio] any judgment of the court later in this [sic] cases, until further determined by the court." Civil Case Nos. 93-F-0414 and 93-F-0415 are groundless suits. Modequillo vs. Breva, 23 reiterated in Manacop vs.Court of Appeals, 24 shows the frivolity of these proceedings: Under the Family Code, a family home is deemed constituted on a house and lot from the time it is occupied as a family residence. There is no need to constitute the same judicially or extrajudicially as required in the Civil Code. If the family actually resides in the premises, it is, therefore, a family home as contemplated by law. Thus, the creditors should take the necessary precautions to protect their interest before extending credit to the spouses or head of the family who owns the home. xxx xxx xxx The exemption provided as aforestated is effective from the time of the constitution of the family home as such, and lasts so long as any of its beneficiaries actually resides therein. Adhering to the Court's declaration in said cases, the subject properties are deemed constituted as family homes by operation of law under Article 153 of the Family Code. The suits for the constitution of a family home were not only frivolous and unnecessary; they were clearly asking for reliefs identical to the prayer previously dismissed by another branch of the RTC, i.e, to forestall the execution of a final judgment of the labor arbiter. That they were filed ostensibly for the judicial declaration of a family home was a mere smoke screen; in essence, their real objective was to restrain or delay the enforcement of the writ of execution. In his deliberate attempt to obtain the same relief in two different courts, Respondent Flores was obviously shopping for a "friendly" forum which would capitulate to his improvident plea for an injunction and was thereby trifling with the judicial process. 25 We remind the respondent that, under the Code of Professional Responsibility, 26 he had a duty to assist in the speedy and efficient administration of justice. 27 The Code also enjoins him from unduly delaying a case by impeding the execution of a judgment or by misusing court processes. 28 In consonance with Millare vs. Montero 29 and Garcia vs. Francisco, 30 respondent should be suspended from the practice of law for one year. In Millare, the respondent filed with different courts a total of six appeals, complaints and petitions which frustrated and delayed the execution of a final judgment. Holding that "respondent 'made a mockery of the judicial processes' and disregarded canons of professional ethics in

intentionally frustrating the rights of a litigant in whose favor a judgment in the case was rendered [and], thus, 'abused procedural rules to defeat the ends of substantial justice,'" 31 this Court suspended the respondent from the practice of law for one year. In Garcia, the respondent was also suspended for one year from the practice of law, for violating the proscription against forum shopping. This Court held that "he deserve[d] to be sanctioned, not only as a punishment for his misconduct but also as a warning to other lawyers who may be influenced by his example." 32 Falsehood The investigating commissioner also held respondent liable for committing a falsehood because, in this administrative case, he stated in his comment that he had not "perfected an appeal on the dismissal" of his petition for injunction. In his said comment, the respondent stated: Branch 7 (of the RTC) motu proprio, dismissed the case for lack of jurisdiction on March 18, 1993. Not having perfected an appeal on the dismissal, the order of dismissal became final under the Rules 15 days after its receipt by respondent on record, or before April 6, 1993. So that today this case is no longer pending. xxx xxx xxx It should be noted that when Civil Case Nos. 93-F-0414 and 93-F-0415 for family homes and damages were filed in the court below on May 26, 1993, Civil Case NO. 2378-R which seems to give basis to the present Complaint was deemed terminated, there being no appeal formally taken and perfected in accordance with the Rules. xxx xxx xxx And that precisely was the primal reason why respondent decided not to appeal any further anymore [sic] the order of dismissal for lack of jurisdiction of the court below in Civil Case No. 2738, and let it be deemed final by the Rules and jurisprudence. 33 (Emphasis supplied.) The indelible fact, however, is that respondent did file an appeal which was perfected later on. The original records of the injunction suit had been transmitted to the appellate court. 34 Moreover, the Court of Appeals issued a resolution dismissing the appeal. 35 Thus, in denying that he had appealed the decision of the RTC, respondent was making a false statement. Respondent argues that the withdrawal of his appeal means that no appeal was made under Section 2 of Rule 50 of the Rules of Court. The pertinent provisions of Rule 50 36 read:

Sec. 2. Effect of dismissal. Fifteen (15) days after the dismissal of an appeal, the clerk shall return to the court below the record on appeal with a certificate under the seal of the court showing that the appeal has been dismissed. Upon the receipt of such certificate in the lower court the case shall stand there as though no appeal had ever been taken, and the judgment of the said court may be enforced with the additional costs allowed by the appellate court upon dismissing the appeal. xxx xxx xxx Sec. 4. Withdrawal of appeal. An appeal may be withdrawn as of right at any time before the filing of appellee's brief. . . . The withdrawal of an appeal shall have the same effect as that of a dismissal in accordance with section 2 of this rule. Respondent's explanation misses the point. True, he withdrew his appeal. But it is likewise true that he had actually filed an appeal, and that this was perfected. False then is his statement that no appeal was perfected in the injunction suit. Worse, he made the statement before this Court in order to exculpate himself, though in vain, from the charge of forum shopping. A lawyer must be a disciple of truth. Under the Code of Professional Responsibility, he owes candor, fairness and good faith to the courts. 37 He shall neither do any falsehood, nor consent to the doing of any. He also has a duty not to mislead or allow the courts to be misled by any artifice. 38 For this offense, we suspend the respondent from the practice of law for another year. True, in Ordonio vs.Eduarte, 39 Porac Trucking, Inc., vs. Court of Appeals 40 and Erectors, Inc. vs. NLRC, 41 we imposed a suspension of only six months for a similar malfeasance. But in Flores' case, his falsehood is aggravated by its brazenness, for it was committed in an attempt, vain as it was, to cover up his forum shopping. Before we close, we note that this simple case was referred to the IBP on September 27, 1993. It was deemed submitted for resolution per the investigating commissioner's order dated May 10, 1995. However, the investigating commissioner submitted his report only on May 5, 1997. Moreover, the IBP transmitted its recommendation to the Court only through a letter dated July 31, 1997, which was received by the Office of the Bar Confidant on August 15, 1997. Why it took the IBP almost four years to finish its investigation of the case and over two years from the date the parties filed their last pleadings to resolve it escapes us. After all, the case did not require any trial-type investigation, and the parties submitted only documentary evidence to prove or rebut their respective cases. Thus, we find it opportune to urge the IBP to hasten the disposition of administrative cases and to remind it that this Court gives it only ninety days to finish its investigation, report and recommendation. Should it require more time, it should file with the Court a request for extension, giving the reason for such request.

WHEREFORE, for trifling with judicial processes by resorting to forum shopping, Respondent Ernesto B. Flores is hereby SUSPENDED from the practice of law for a period of ONE (1) YEAR and, for violating his oath and the Canon of Professional Responsibility to do no falsehood, he is SUSPENDED for another period of ONE (1) YEAR, resulting in a total period of TWO (2) YEARS, effective upon finality of this Decision. He is WARNED that a repetition of a similar misconduct will be dealt with more severely. Let a copy of this Decision be included in his files which are with the Office of the Bar Confidant, and circularized to all courts and to the Integrated Bar of the Philippines. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Martinez, Quisumbing and Purisima, JJ., concur.

EN BANC

CONRADO QUE, Complainant,

A.C. No. 7054 PUNO, C J., CARPIO, CORONA, CARPIO MORALES, CHICO-NAZARIO, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, and VILLARAMA, JR., JJ. Promulgated:

versus

ATTY. ANASTACIO REVILLA, JR. Respondent.

December 4, 2009 x ------------------------------------------------------------------------------------------------------- x

DECISION PER CURIAM:

In a complaint for disbarment,[1] Conrado Que (complainant) accused Atty. Anastacio Revilla, Jr. (respondent) before the Integrated Bar of the

Philippines Committee on Bar Discipline (IBP Committee on Bar Discipline or CBD) of committing the following violations of the provisions of the Code of Professional Responsibility and Rule 138 of the Rules of Court: (1) The respondents abuse of court remedies and processes by filing a petition for certiorari before the Court of Appeals (CA), two petitions for annulment of title before the Regional Trial Court (RTC), a petition for annulment of judgment before the RTC and lastly, a petition for declaratory relief before the RTC (collectively, subject cases) to assail and overturn the final judgments of the Metropolitan Trial Court[2] (MeTC) and RTC[3] in the unlawful detainer case rendered against the respondents clients. The respondent in this regard, repeatedly raised the issue of lack of jurisdiction by the MeTC and RTC knowing fully-well that these courts have jurisdiction over the unlawful detainer case. The respondent also repeatedly attacked the complainants and his siblings titles over the property subject of the unlawful detainer case; (2) The respondents commission of forum-shopping by filing the subject cases in order to impede, obstruct, and frustrate the efficient administration of justice for his own personal gain and to defeat the right of the complainant and his siblings to execute the MeTC and RTC judgments in the unlawful detainer case; (3) The respondents lack of candor and respect towards his adversary and the courts by resorting to falsehood and deception to misguide, obstruct and impede the due administration of justice. The respondent asserted falsehood in the motion for reconsideration of the dismissal of the petition for annulment of judgment by fabricating an imaginary order issued by the presiding judge in open court which allegedly denied the motion to dismiss filed by the respondents in the said case. The complainant alleged that the respondent did this to cover up his lack of preparation; the respondent also deceived his clients (who were all squatters) in supporting the above falsehood.[4] (4) The respondents willful and revolting falsehood that unjustly maligned and defamed the good name and reputation of the late Atty. Alfredo Catolico (Atty. Catolico), the previous counsel of the respondents clients.

(5) The respondents deliberate, fraudulent and unauthorized appearances in court in the petition for annulment of judgment for 15 litigants, three of whom are already deceased; (6) The respondents willful and fraudulent appearance in the second petition for annulment of title as counsel for the Republic of the Philippines without being authorized to do so.

Additionally, the complaint accused the respondent of representing fifty-two (52) litigants in Civil Case No. Q-03-48762 when no such authority was ever given to him. The CBD required the respondent to answer the complaint. In his Answer,[5] the respondent declared that he is a member of the Kalayaan Development Cooperative (KDC) that handles pro bono cases for the underprivileged, the less fortunate, the homeless and those in the marginalized sector in Metro Manila. He agreed to take over the cases formerly handled by other KDC members. One of these cases was the unlawful detainer case handled by the late Atty. Catolico where the complainant and his siblings were the plaintiffs and the respondents present clients were the defendants.

With respect to paragraph 1 of the disbarment complaint, the respondent professed his sincerity, honesty and good faith in filing the petitions complained of; he filed these petitions to protect the interests of his clients in their property. The respondent asserted that these petitions were all based on valid grounds the lack of jurisdiction of the MeTC and the RTC over the underlying unlawful detainer case, theextrinsic fraud committed by the late Atty. Catolico, and the extrinsic fraud committed by the complainant and his family against his clients; he discovered that the allegedly detained property did not really belong to the complainant and his family but is a forest land. The respondent also asserted that his resort to a petition for annulment of judgment and a petition for declaratory relief to contest the final judgments

of the MeTC and RTC were all parts of his legal strategy to protect the interests of his clients.

On the allegations of falsehood in the motion for reconsideration of the order of dismissal of the petition for annulment of judgment (covered by paragraph 3 of the disbarment complaint), the respondent maintained that his allegations were based on his observations and the notes he had taken during the proceedings on what the presiding judge dictated in open court.

The respondent denied that he had made any unauthorized appearance in court (with respect to paragraphs 5 and 6 of the disbarment complaint). He claimed that the 52 litigants in Civil Case No. Q-03-48762 were impleaded by inadvertence; he immediately rectified his error by dropping them from the case. On the petition for annulment of judgment, the respondent claimed that a majority (31 out of 49) of the litigants who signed the certification constituted sufficient compliance with the rules on forum-shopping. The respondent likewise denied having represented the Republic of the Philippines in the second petition for annulment of title. The respondent pointed out that there was no allegation whatsoever that he was the sole representative of both the complainants (his clients) and the Republic of the Philippines. The respondent pointed out that the petition embodied a request to the Office of the Solicitor General to represent his clients in the case.[6] The respondent submitted that he did not commit any illegal, unlawful, unjust, wrongful or immoral acts towards the complainant and his siblings. He stressed that he acted in good faith in his dealings with them and his conduct was consistent with his sworn duty as a lawyer to uphold justice and the law and to defend the interests of his clients. The respondent additionally claimed that the disbarment case was filed because the complainants counsel, Atty. Cesar P. Uy (Atty. Uy), had an axe to grind against him. Lastly, the respondent posited in his pleadings[7] before the IBP that the present complaint violated the rule on forum shopping considering that the subject cases were

also the ones on which a complaint was filed against him in CBD Case No. 03-1099 filed by Atty. Uy before the IBP Committee on Bar Discipline. The respondent also posited that the present complaint was filed to harass, ridicule and defame his good name and reputation and, indirectly, to harass his clients who are marginalized members of the KDC.

The Findings of the Investigating Commissioner

Except for the last charge of unauthorized appearance on behalf of 52 litigants in Civil Case No. Q-03-48762, Investigating Commissioner Renato G. Cunanan[8] (Investigating Commissioner Cunanan) found all the charges against the respondent meritorious. In his Report and Recommendation, he stated: While an attorney admittedly has the solemn duty to defend and protect the cause and rights of his client with all the fervor and energy within his command, yet, it is equally true that it is the primary duty of the lawyer to defend the dignity, authority and majesty of the law and the courts which enforce it. A lawyer is not at liberty to maintain and defend the cause of his clients thru means, inconsistent with truth and honor. He may not and must not encourage multiplicity of suits or brazenly engage in forum-shopping.[9]

On the first charge on abuse of court processes, Investigating Commissioner Cunanan noted the unnecessary use by the respondent of legal remedies to forestall the execution of the final decisions of the MTC and the RTC in the unlawful detainer case against his clients.[10]

On the second charge, the Investigating Commissioner ruled that the act of the respondent in filing two petitions for annulment of title, a petition for annulment of judgment and later on a petition for declaratory relief were all done to prevent the execution of the final judgment in the unlawful detainer case and constituted prohibited forum-shopping.[11]

On the third and fourth charges, Investigating Commissioner Cunanan found ample evidence showing that the respondent was dishonest in dealing with the court as shown in his petition for annulment of judgment; he resorted to falsities and attributed acts to Atty. Catolico and to the presiding judge, all of which were untrue. [12]

On the fifth and sixth charges, the Investigating Commissioner disregarded the respondents explanation that he had no intention to represent without authority 15 of the litigants (three of whom were already deceased) in the petition for annulment of judgment (Civil Case No. Q-01-45556). To the Investigating Commissioner, the respondent merely glossed over the representation issue by claiming that the authority given by a majority of the litigants complied with the certification of non-forum shopping requirement. The Investigating Commissioner likewise brushed aside the respondents argument regarding his misrepresentation in the second complaint for annulment of title since he knew very well that only the Solicitor General can institute an action for reversion on behalf of the Republic of the Philippines. Despite this knowledge, the respondent solely signed the amended complaint for and on behalf of his clients and of the Republic. The Board of Governors of the IBP Committee on Bar Discipline, through its Resolution No. XVII-2005-164 on CBD Case No. 03-1100, adopted and approved the Report and Recommendation of Investigating Commissioner Cunanan and

recommended that the respondent be suspended from the practice of law for two (2) years.[13] On reconsideration, the Board of Governors reduced the respondents suspension from the practice of law to one (1) year.[14] The Issue

The case poses to us the core issues of whether the respondent can be held liable for the imputed unethical infractions and professional misconduct, and the penalty these transgressions should carry. The Courts Ruling

Except for the penalty, we agree with the Report and Recommendation of Investigating Commissioner Cunanan and the Board of Governors of the IBP Committee on Bar Discipline.

We take judicial notice that this disbarment complaint is not the only one so far filed involving the respondent; another complaint invoking similar grounds has previously been filed. In Plus Builders, Inc. and Edgardo C. Garcia v. Atty. Anastacio E. Revilla, Jr.,[15] we suspended the respondent from the practice of law for his willful and intentional falsehood before the court; for misuse of court procedures and processes to delay the execution of a judgment; and for collaborating with non-lawyers in the illegal practice of law. We initially imposed a suspension of two (2) years, but in an act of leniency subsequently reduced the suspension to six (6) months.[16] Abuse of court procedures and processes

The following undisputed facts fully support the conclusion that the respondent is guilty of serious misconduct for abusing court procedures and processes to shield his clients from the execution of the final judgments of the MeTC and RTC in the unlawful detainer case against these clients:

First, the respondent filed a petition for certiorari (docketed as CA-G.R. SP No. 53892) with prayer for the issuance of preliminary injunction and temporary restraining order to question the final judgments of the MeTC and RTC for lack of jurisdiction. In dismissing the respondents petition, the CA held: Even for the sake of argument considering that the petition case be the proper remedy, still it must be rejected for failure of petitioners to satisfactorily demonstrate lack of jurisdiction on the part of the Metropolitan Trial Court of Quezon City over the ejectment case.[17] Second, notwithstanding the CAs dismissal of the petition for certiorari, the respondent again questioned the MeTCs and the RTCs lack of jurisdiction over the

unlawful detainer case in a petition for annulment of judgment (docketed as Civil Case No. Q-01-45556) before the RTC with an ancillary prayer for the grant of a temporary restraining order and preliminary injunction. The RTC dismissed this petition on the basis of the motion to dismiss filed.[18]

Third, the respondent successively filed two petitions (docketed as Civil Case No. Q-99-38780 and Civil Case No. Q-02-46885) for annulment of the complainants title to the property involved in the unlawful detainer case. The records show that these petitions were both dismissed for lack of legal personality on the part of the plaintiffs to file the petition.[19]

Fourth, after the dismissals of the petition for annulment of judgment and the petitions for annulment of title, the respondent this time filed a petition for declaratory relief with prayer for a writ of preliminary injunction to enjoin the complainant and his siblings from exercising their rights over the same property subject of the unlawful detainer case. The respondent based the petition on the alleged nullity of the complainants title because the property is a part of forest land.

Fifth, the persistent applications by the respondent for injunctive relief in the four petitions he had filed in several courts the petition for certiorari, the petition for annulment of judgment, the second petition for annulment of complainants title and t he petition for declaratory relief reveal the respondents persistence in preventing and avoiding the execution of the final decisions of the MeTC and RTC against his clients in the unlawful detainer case. Under the circumstances, the respondents repeated attempts go beyond the legitimate means allowed by professional ethical rules in defending the interests of his client. These are already uncalled for measures to avoid the enforcement of final judgments of the MeTC and RTC. In these attempts, the respondent violated Rule 10.03, Canon 10 of the Code of Professional Responsibility which makes it obligatory

for a lawyer to observe the rules of procedure and. . . not [to] misuse them to defeat the ends of justice. By his actions, the respondent used procedural rules to thwart and obstruct the speedy and efficient administration of justice, resulting in prejudice to the winning parties in that case.[20]

Filing of multiple actions and forum shopping

The respondent likewise violated Rule 12.02 and Rule 12.04, Canon 12 of the Code of Professional Responsibility,[21] as well as the rule against forum shopping, both of which are directed against the filing of multiple actions to attain the same objective. Both violations constitute abuse of court processes; they tend to degrade the administration of justice; wreak havoc on orderly judicial procedure; [22] and add to the congestion of the heavily burdened dockets of the courts.[23] While the filing of a petition for certiorari to question the lower courts jurisdic tion may be a procedurally legitimate (but substantively erroneous) move, the respondents subsequent petitions involving the same property and the same parties not only demonstrate his attempts to secure favorable ruling using different fora, but his obvious objective as well of preventing the execution of the MeTC and RTC decisions in the unlawful detainer case against his clients. This intent is most obvious with respect to the petitions for annulment of judgment and declaratory relief, both geared towards preventing the execution of the unlawful detainer decision, long after this decision had become final. Willful, intentional and deliberate falsehood before the courts

The

records

also

reveal

that

the

respondent

committed

willful,

intentional and deliberate falsehood in the pleadings he filed with the lower courts. First, in the petition for annulment of judgment filed before the RTC, Branch 101, Quezon City, the respondent cited extrinsic fraud as one of the grounds for the annulment sought. The extrinsic fraud was alleged in the last paragraph of the petition, as follows: In here, counsel for the petitioners (defendants therein), deliberately neglected to file the proper remedy then available after receipt of the denial of their Motion for Reconsideration thus corruptly sold out the interest of the petitioners(defendants therein) by keeping them away to the Court and in complete ignorance of the suit by a false pretense of compromise and fraudulent acts of alleging representing them when in truth and in fact, have connived with the attorney of the prevailing party at his defeat to the prejudice of the petitioner (defendants therein) [24]

Yet, in paragraph 35 of the same petition, the respondent alleged that no second motion for reconsideration or for new trial, or no other petition with the CA had been filed, as he believed that the decisions rendered both by the MeTC and the RTC are null and void.[25] These conflicting claims, no doubt, involve a fabrication made for the purpose of supporting the petition for annulment. Worse, it involved a direct and unsubstantiated attack on the reputation of a law office colleague, another violation we shall separately discuss below.

Second, the respondent employed another obvious subterfuge when he filed his second petition for annulment of title, which was an unsuccessful attempt to circumvent the rule that only the Solicitor General may commence reversion proceedings of public lands[26] on behalf of the Republic of the Philippines. This second petition, filed by a private party and not by the Republic, showed that: (a) the respondent and his clients requested that they be represented by the Solicitor General in the proceedings; (b) the Republic of the Philippines was simply impleaded in the amended petition without its consent as a plaintiff; and (c) the respondent signed the amended petition where he alone stood as counsel for the plaintiffs. In this underhanded manner, the respondent

sought to compel the Republic to litigate and waste its resources on an unauthorized and unwanted suit.

Third, the respondent also committed falsehood in his motion for reconsideration of the order dismissing his petition for annulment of judgment where he misrepresented to the court and his clients what actually transpired in the hearing of June 28, 2002 in this wise: Likewise, the proceedings on said date of hearing (June 28, 2002) show, that after both counsel have argued on the aforesaid pending incident, the Honorable Presiding Judge, in open court, and in the presence and within the hearing distance of all the plaintiffs and their counsel as well as the counsel of the defendants resolved: TO DENY THE MOTION TO DISMISS FILED AND DIRECTED DEFENDANTS COUNSEL TO FILE AN ANSWER TO THE COMPLAINT WITHIN THE REMAINING PERIOD.[27][Underscoring and emphasis theirs]

The records, however, disclose that the scheduled hearing for June 28, 2002 was actually for the respondents application for temporary restraining order and was not a hearing on the adverse partys motion to dismiss.[28] The records also show that RTCBranch 101 held in abeyance the respondents application for injunctive relief pending the resolution of the motion to dismiss filed by the adverse party. [29] As stated in the order of the Presiding Judge of RTC-Branch 101: Browsing over the records of this case specifically the transcripts of stenographic notes as transcribed by the Stenographer, the same will indicate that the allegations in the Motion for Reconsideration are not true. how can this Court make a ruling on the matter even without stating the factual and legal bases as required/mandated by the Rules. Moreover, there are no indications or iota of irregularity in the preparation by Stenographer of the transcripts, and by the Court interpreter of the Minutes of the open Court session.[Underscoring theirs] The records further disclose that despite knowledge of the falsity of his allegations, the respondent took advantage of his position and the trust reposed in him by his clients (who are all squatters) to convince them to support, through their

affidavits, his false claims on what allegedly transpired in the June 28, 2002 hearing. [30]

For these acts, we find the respondent liable under Rule 10.01 of Canon 10 the Code of Professional Responsibility for violating the lawyers duty to observe candor and fairness in his dealings with the court. This provision 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 mislead by an artifice.

Likewise, the respondent violated his duty as an attorney and his oath as a lawyer never to mislead the judge or any judicial officer by an artifice or false statement of fact or law.[31] The respondent failed to remember that his duty as an officer of the court makes him an indispensable participant in the administration of justice, [32] and that he is expected to act candidly, fairly and truthfully in his work. [33]His duty as a lawyer obligates him not to conceal the truth from the court, or to mislead the court in any manner, no matter how demanding his duties to his clients may be. [34] In case of conflict, his duties to his client yield to his duty to deal candidly with the court.[35] In defending his clients interest, the respondent also failed to observe Rule 19.01, Canon 19 of the Code of Professional Responsibility, which reads: CANON 19 A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL WITHIN THE BOUNDS OF LAW Rule 19.01 A lawyer shall employ only fair and honest means to attain the lawful objectives of his clients x x x

This Canon obligates a lawyer, in defending his client, to employ only such means as are consistent with truth and honor.[36] He should not prosecute patently frivolous and meritless appeals or institute clearly groundless actions. [37] The recital of

what the respondent did to prevent the execution of the judgment against his clients shows that he actually committed what the above rule expressly prohibits. Maligning the name of his fellow lawyers

To support the charge of extrinsic fraud in his petition for annulment of judgment, the respondent attacked (as quoted above) the name and reputation of the late Atty. Catolico and accused him of deliberate neglect, corrupt motives and connivance with the counsel for the adverse party. We find it significant that the respondent failed to demonstrate how he came upon his accusation against Atty. Catolico. The respondent, by his own admission, only participated in the cases previously assigned to Atty. Catolico after the latter died. At the same time, the respondents petition for annulment of judgment also represented that no second motion for reconsideration or appeal was filed to contest the MeTC and RTC decisions in the unlawful detainer case for the reason that the respondent believed the said decisions were null and void ab initio. Under these circumstances, we believe that the respondent has been less than fair in his professional relationship with Atty. Catolico and is thus liable for violating Canon 8 of the Code of Professional Responsibility, which obligates a lawyer to conduct himself with courtesy, fairness, and candor toward his professional colleagues. He was unfair because he imputed wrongdoing to Atty. Catolico without showing any factual basis therefor; he effectively maligned Atty. Catolico, who is now dead and unable to defend himself. Unauthorized appearances

We support Investigating Commissioner Cunanans finding that the respondent twice represented parties without proper authorization: first, in the petition for annulment of judgment; and second, in the second petition for annulment of title. [38]

In the first instance, the records show that the respondent filed the petition for annulment of judgment on behalf of 49 individuals, 31 of whom gave their consent while the other 15 individuals did not. We cannot agree with the respondents off -hand explanation that he truly believed that a majority of the litigants who signed the certification of non-forum shopping in the petition already gave him the necessary authority to sign for the others. We find it highly improbable that this kind of lapse could have been committed by a seasoned lawyer like the respondent, who has been engaged in the practice of law for more than 30 years and who received rigid and strict training as he so proudly declares, from the University of the Philippines College of Law and in the two law firms with which he was previously associated. [39]As Investigating Commissioner Cunanan found, the respondents explanation of compliance with the rule on the certification of non-forum shopping glossed over the real charge of appearing in court without the proper authorization of the parties he allegedly represented. In the second instance, which occurred in the second complaint for annulment of title, the respondent knew that only the Solicitor General can legally represent the Republic of the Philippines in actions for reversion of land. Nevertheless, he filed an amended petition where he impleaded the Republic of the Philippines as plaintiff without its authority and consent, as a surreptitious way of forcing the Republic to litigate. Notably, he signed the amended complaint on behalf of all the plaintiffs his clients and the Republic.

In both instances, the respondent violated Sections 21 and 27, Rule 138 of the Rules of Court when he undertook the unauthorized appearances. The settled rule is that a lawyer may not represent a litigant without authority from the latter or from the latters representative or, in the absence thereof, without leave of court. [40] The willful unauthorized appearance by a lawyer for a party in a given case constitutes contumacious conduct and also warrants disciplinary measures against the erring lawyer for professional misconduct.[41] The Respondents Defenses

We find no merit in the respondents defenses. Good faith connotes an honest intention to abstain from taking unconscientious advantage of another. Accordingly, in University of the East v. Jader we said that "[g]ood faith connotes an honest intention to abstain from taking undue advantage of another, even though the forms and technicalities of law, together with the absence of all information or belief of facts, would render the transaction unconscientious."[42] Bad faith, on the other hand, is a state of mind affirmatively operating with furtive design or with some motive of self-interest, ill will or for an ulterior purpose.[43] As both concepts are states of mind, they may be deduced from the attendant circumstances and, more particularly, from the acts and statements of the person whose state of mind is the subject of inquiry. In this case, we find that the respondent acted in bad faith in defending the interests of his clients. We draw this conclusion from the misrepresentations and the dubious recourses he made, all obviously geared towards forestalling the execution of the final judgments of the MeTC and RTC. That he took advantage of his legal knowledge and experience and misread the Rules immeasurably strengthen the presence of bad faith. We find neither sincerity nor honest belief on the part of the respondent in pleading the soundness and merit of the cases that he filed in court to prevent the execution of the MeTC and RTC decisions, considering his own conduct of presenting conflicting theories in his petitions. The succession of cases he filed shows a desperation that negates the sincere and honest belief he claims; these are simply scattershot means to achieve his objective of avoiding the execution of the unlawful detainer judgment against his clients. On the respondents allegations regarding his discretion to determine legal strategy, it is not amiss to note that this was the same defense he raised in the first

disbarment case.[44] As we explained in Plus Builders, the exercise of a lawyers discretion in acting for his client can never be at the expense of truth and justice. In the words of this cited case: While a lawyer owes absolute fidelity to the cause of his client, full devotion to his genuine interest, and warm zeal in the maintenance and defense of his rights, as well as the exertion of his utmost learning and ability, he must do so only within the bounds of the law. He must give a candid and honest opinion on the merits and probable results of his clients case with the end in view of promoting respect for the law and legal processes, and counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under the law. He must always remind himself of the oath he took upon admission to the Bar that he will not wittingly or willingly promote or sue any groundless, false or unlawful suit nor give aid nor consent to the same; and that he will conduct [himself] as a lawyer according to the best of [his] knowledge and discretion with all good fidelity as well to the courts as to [his] clients. Needless to state, the lawyers fidelity to his client must not be pursued at the expense of truth and the administration of justice, and it must be done within the bounds of reason and common sense. A lawyers responsibility to protect and advance the interests of his client does not warrant a course of action propelled by ill motives and malicious intentions against the other party. [45] We cannot give credence to the respondents claim that the disbarment case was filed because the counsel of the complainant, Atty. Uy, had an axe to grind against him. We reject this argument, considering that it was not Atty. Uy who filed the present disbarment case against him; Atty. Uy is only the counsel in this case. In fact, Atty. Uy has filed his own separate disbarment case against the respondent. The sui generis nature of a disbarment case renders the underlying motives of the complainants unimportant and with very little relevance. The purpose of a disbarment proceeding is mainly to determine the fitness of a lawyer to continue acting as an officer of the court and a participant in the dispensation of justice an issue where the complainants personal motives have little relevance. For this reason, disbarment proceedings may be initiated by the Court motu proprio upon information of an alleged wrongdoing. As we also explained in the case In re: Almacen:

. . .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 one of its officers. Not being intended to inflict punishment, it is in no sense a criminal prosecution. x x x

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.[46]

Hence, we give little or no weight to the alleged personal motivation that drove the complainant Que and his counsel to file the present disbarment case. Conclusion Based on the foregoing, we conclude that the respondent committed various acts of professional misconduct and thereby failed to live up to the exacting ethical standards imposed on members of the Bar. We cannot agree, however, that only a penalty of oneyear suspension from the practice of law should be imposed. Neither should we limit ourselves to the originally recommended penalty of suspension for two (2) years. Given the respondents multiple violations, his past record as previously discussed, and the nature of these violations which shows the readiness to disregard court rules and to gloss over concerns for the orderly administration of justice, we believe and so hold that the appropriate action of this Court is to disbar the respondent to keep him away from the law profession and from any significant role in the administration of justice which he has disgraced. He is a continuing risk, too, to the public that the legal profession serves. Not even his ardor and overzealousness in

defending the interests of his client can save him. Such traits at the expense of everything else, particularly the integrity of the profession and the orderly administration of justice, this Court cannot accept nor tolerate. Additionally, disbarment is merited because this is not the respondents first ethical infraction of the same nature. We penalized him in Plus Builders, Inc. and Edgardo Garcia versus Atty. Anastacio E. Revilla for his willful and intentional falsehood before the court; for misuse of court procedures and processes to delay the execution of a judgment; and for collaborating with non-lawyers in the illegal practice of law. We showed leniency then by reducing his penalty to suspension for six (6) months. We cannot similarly treat the respondent this time; it is clear that he did not learn any lesson from his past experience and since then has exhibited traits of incorrigibility. It is time to put a finis to the respondents professional legal career for the sake of the public, the profession and the interest of justice.

WHEREFORE, premises considered, we hereby AFFIRM Resolution No. XVII2005-164 dated December 17, 2005 and Resolution No. XVII-2008-657 dated December 11, 2008 of the Board of Governors of the IBP Committee on Bar Discipline insofar as respondent Atty. Anastacio Revilla, Jr. is found liable for professional misconduct for violations of the Lawyers Oath; Canon 8; Rules 10.01 and 10.03, Canon 10; Rules 12.02 and 12.04, Canon 12; Rule 19.01, Canon 19 of the Code of Professional Responsibility; and Sections 20(d), 21 and 27 of Rule 138 of the Rules of Court. However, we modify the penalty the IBP imposed, and hold that the respondent should be DISBARRED from the practice of law.

SO ORDERED.

ATTY.

JOSABETH

V.

A.C. No. 8481

ALONSOand SHALIMAR P. LAZATIN, Complainants,

[Formerly B.M. No. 1524]

Present:

CORONA, C.J., CARPIO, CARPIO-MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, - versus BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ.

Promulgated: ATTY. IBARO B. RELAMIDA, JR., Respondent. x --------------------------------------------------x August 3, 2010

DECISION

PERALTA, J.:

Before us is a Complaint[1] dated October 13, 2005 for disciplinary action against respondent Atty. Ibaro B. Relamida, Jr. filed by Attys. Josabeth V. Alonso and Shalimar P. Lazatin, counsel of Servier Philippines, Incorporated for violating the rules on forum shopping and res judicata. The antecedent facts of the case are as follows: In March 2001, Jennifer Ebanen filed a Complaint for illegal dismissal against Servier Philippines, Incorporated (Servier) docketed as NLRC-NCR-Case No. 30-0301583-01, alleging constructive dismissal with prayer for reinstatement or payment of separation pay, backwages, moral and exemplary damages. On July 5, 2002, the Labor Arbiter ruled in favor of Servier. [2] It held that Ebanen voluntarily resigned from Servier and was, therefore, not illegally dismissed. Ebanen appealed at the National Labor Relations Commission (NLRC). On March 31, 2003, the NLRC-Third Division affirmed the Decision of the Labor Arbiter.[3] Thus, Ebanen moved for reconsideration. However, the NLRC denied the same in a Resolution[4] dated May 5, 2003. Unsatisfied, Ebanen filed a Petition for Certiorari before the Court of Appeals which was docketed as CA-G.R. SP No. 77968. In a Decision[5] dated January 16, 2004, the Court of Appeals (CA) affirmed the findings of the NLRC that Ebanen voluntarily resigned and that there was no constructive dismissal. Ebanen moved anew for reconsideration, but was denied in a Resolution[6] dated April 30, 2004.

Unrelenting, Ebanen filed a Petition for Review before the Supreme Court. However, in a Resolution[7] dated August 4, 2004, the Court found no reversible error on the part of the CA, thus, denied said petition. Ebanen filed a motion for reconsideration, but was denied with finality in a Resolution[8] dated October 11, 2004. Ebanen filed a Motion for Leave to Admit Second Motion for Reconsideration of the Resolutions dated August 4, 2004 and October 11, 2004, respectively. On January 19, 2005, the Court denied her motion.[9] Persistent, Ebanen filed a Motion to Admit a Third Motion for Reconsideration of the Resolution dated January 19, 2005. On April 20, 2005, the Court denied her motion for being a prohibited pleading and noted without action Ebanens third motion for reconsideration.[10] On July 27, 2005, the Second Division of the Supreme Court noted without action Ebanens Motion for Leave to Admit Supplemental Third Motion for Reconsideration dated June 1, 2005, in view of the entry of judgment on February 17, 2005.[11] On February 17, 2005, the Courts Resolution dated August 4, 2004 has already become final and executory; thus, a corresponding Entry of Judgment [12] has been issued. However, despite said entry of judgment, Ebanen, thru her counsel, Atty. Relamida, filed a second complaint on August 5, 2005 for illegal dismissal based on the same cause of action of constructive dismissal against Servier, now docketed as NLRCNCR Case No. 00-08-07222-05. Thus, on October 13, 2005, Servier, thru counsel, filed a letter-complaint addressed to the then Chief Justice Hilario Davide, Jr., praying that respondents be disciplinary sanctioned for violation of the rules on forum shopping and res judicata. Subsequently, in a Resolution[13] dated November 15, 2005, the Court required both Ebanen and Atty. Relamida to comment on the letter-complaint against them. On January 16, 2006, respondents filed their Comments.[14] Both respondents admitted the filing of the second complaint against Servier. They claimed that the judgment rendered by the Labor Arbiter was null and void for want of due process, since

the motion for the issuance of subpoena duces tecum for the production of vital documents filed by the complainant was ignored by the Labor Arbiter. They opined that the dismissal did not amount to res judicata, since the decision was null and void for lack of due process. As a result, they claimed that there was also no violation of the rule on forum shopping.[15] On February 7, 2006, the Court referred the instant bar matter to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.[16] On January 22, 2007, the Labor Arbiter dismissed the second complaint on the grounds of res judicata and forum shopping. It further reiterated that Ebanen voluntarily resigned from employment and was not constructively dismissed. On March 14, 2008, during the mandatory conference before the IBP, complainants failed to appear. Ebanen manifested that she is not a lawyer. Both parties were required to submit their respective position papers. Atty. Relamida reiterated that Ebanen is not a lawyer and that she is the daughter of Atty. Leonardo Aurelio (Atty. Aurelio), the senior partner of A.M. Sison Jr. and Partners Law Offices where he is employed as associate lawyer. He narrated that on March 28, 2001, Ebanen filed a Complaint for illegal dismissal against Servier. He claimed that in the beginning, Atty. Aurelio was the one who prepared and reviewed all the pleadings and it was Atty. Lapulapu Osoteo who stood as counsel for Ebanen in the said labor case. Atty. Relamida admitted, however, that during the filing of the second complaint he took over as counsel of Ebanen, as requested by Atty. Aurelio.[17] He also admitted that during the pendency of the first complaint, he occasionally examined pleadings and signed as counsel for Ebanen. [18] Atty. Relamida reasoned out that as a courtesy to Atty. Aurelio and Ebanen, he had no choice but to represent the latter. Moreover, he stressed that his client was denied of her right to due process due to the denial of her motion for the issuance of a subpoena duces tecum. He then argued that the decision of the Labor Arbiter was null and void; thus, there was no res judicata.[19] He maintained that he did not violate the lawyers oath by serving the interest of his client.

Servier, on the other hand, argued that the filing of the second complaint is a violation of the rights of Servier, since the issue has already attained finality. It contended that Atty. Relamida violated the rules on forum shopping for the same act of filing a second complaint. As a consequence, they are being made to defend themselves in a case that has been settled before the labor tribunals and courts. Likewise, Servier insisted that the filing of the second complaint was also a blatant violation of the rule on res judicata. Hence, Servier prayed that Atty. Relamida be disciplinary dealt with due to his abuse of the processes of the courts. On April 19, 2008, the IBP-Commission on Bar Discipline (IBP-CBD) recommended that respondent Atty. Relamida be suspended from the practice of law for six (6) months. It imposed no sanction on Ebanen for being a non-lawyer. In its Report, the IBP found that by filing the second complaint, Atty. Relamida was guilty of violating the rules on res judicata and forum shopping. It concluded that Atty. Relamida abused his right of recourse to the courts by filing a complaint for a cause that had been previously rejected by the courts. On June 5, 2008, the IBP Board of Governors resolved to adopt and approve with modification as to penalty the report of the IBP-CBD. Instead, it recommended that Atty. Relamida be suspended from the practice of law for one (1) month for his violation of the rules on res judicata and forum shopping. On December 7, 2009, the Office of the Bar Confidant recommended that the instant complaint be re-docketed as a regular administrative case against Atty. Relamida. We sustain the findings of the IBP-CBD.

All lawyers must bear in mind that their oaths are neither mere words nor an empty formality. When they take their oath as lawyers, they dedicate their lives to the pursuit of justice. They accept the sacred trust to uphold the laws of the land. As the first Canon of the Code of Professional Responsibility states, "[a] lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and legal processes." Moreover, according to the lawyers oath they took, lawyers should "not

wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid or consent to the same."[20]

In the instant case, it is clear that Atty. Relamida is guilty of forum shopping and violation of the rule on res judicata. Atty. Relamida should have refrained from filing the second complaint against Servier. He ought to have known that the previous dismissal was with prejudice, since it had the effect of an adjudication on the merits. He was aware of all the proceedings which the first complaint went through as by his own admission, he participated in the preparation of the pleadings and even signed as counsel of Ebanen occasionally.[21] He knew that the decision in the subject case had already attained finality. Atty. Relamida was well aware that when he filed the second complaint, it involved the same parties and same cause of action, albeit, he justified the same on the ground of nullity of the previous dismissal. His allegation that he was not the original counsel of Ebanen and that his intention was only to protect the rights of his clients whom he believed were not properly addressed in the prior complaint deserves scant consideration. He should know that once a case is decided with finality, the controversy is settled and the matter is laid to rest. The prevailing party is entitled to enjoy the fruits of his victory, while the other party is obliged to respect the courts verdict and to comply with it.[22] The essence of forum shopping is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment. It exists when, as a result of an adverse opinion in one forum, a party seeks a favorable opinion in another, or when he institutes two or more actions or proceedings grounded on the same cause to increase the chances of obtaining a favorable decision. An important factor in determining its existence is the vexation caused to the courts and the parties-litigants by the filing of similar cases to claim substantially the same reliefs. Forum shopping exists where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in another. Thus, the following requisites should concur:[23] x x x (a) identity of parties, or at least such parties as represent the same interests in both actions, (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts, and (c) the identity of the two preceding particulars is such that any judgment rendered in the other

action will, regardless of which party is successful, amount to res judicata in the action under consideration.

A lawyer owes fidelity to the cause of his client, but not at the expense of truth and the administration of justice. The filing of multiple petitions constitutes abuse of the courts processes and improper conduct that tends to impede, obstruct and degrade the administration of justice and will be punished as contempt of court. Needless to state, the lawyer who files such multiple or repetitious petitions (which obviously delays the execution of a final and executory judgment) subjects himself to disciplinary action for incompetence (for not knowing any better) or for willful violation of his duties as an attorney to act with all good fidelity to the courts, and to maintain only such actions as appear to him to be just and are consistent with truth and honor.[24] The filing of another action concerning the same subject matter, in violation of the doctrine of res judicata, runs contrary to Canon 12 of the Code of Professional Responsibility, which requires a lawyer to exert every effort and consider it his duty to assist in the speedy and efficient administration of justice. By his actuations, respondent also violated Rule 12.02 and Rule 12.04 of the Code, as well as a lawyers mandate "to delay no man for money or malice."[25] The Court has, time and again, warned lawyers not to resort to forum shopping for this practice clogs the court dockets. Their primary duty is to assist the courts in the administration of justice. Any conduct which tends to delay, impede or obstruct the administration of justice contravenes such lawyers duty.[26] This we will not tolerate. In cases of similar nature,[27] the penalty imposed by this Court was six (6) months suspension from the practice of law. Thus, consistent with the existing jurisprudence, we find that, in this case, the suspension of six (6) months from practice of law is proper. WHEREFORE, Resolution No. XVIII-2008-286, dated June 5, 2008, of the IBP, which found respondent Atty. Ibaro B. Relamida, Jr. guilty of violating the Rules on Res Judicata and Forum Shopping, is AFFIRMED. Atty. Relaminda is hereby SUSPENDED for six (6) months from the practice of law, effective upon the receipt of this Decision. He is warned that a repetition of the same or a similar act will be dealt with more severely.

Let a copy of this Decision be furnished to the Office of the Bar Confidant, to be appended to the personal record of Atty. Relamida as a member of the Bar; the Integrated Bar of the Philippines; and the Office of the Court Administrator, for circulation to all courts in the country for their information and guidance.

This Decision shall be immediately executory.

SO ORDERED.

FELICITAS BERBANO, complainant, BARCELONA, respondent.

vs.

ATTY.

WENCESLAO

DECISION PER CURIAM: 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.[1] In a sworn Affidavit-Complaint dated March 11, 1999 filed before the Integrated Bar of the Philippines (IBP), complainant Felicitas Berbano seeks the disbarment of Atty. Wenceslao Barcelona for Malpractice and Gross Misconduct Unbecoming a Lawyer, Dereliction of Duty and Unjust Enrichment.[2] Complainant alleges: 1. I am one of the heirs of Rufino Esteban Hilapo, owner of a 244-hectare lot situated at Alabang, Muntinlupa, which property is being claimed by Filinvest Dev. Corp. in a case pending with the Commission on the Settlement of Land Problems (COSLAP), Quezon City. The heirs of REH has appointed Mr.

PORFIRIO DAEN as their attorney-in-fact giving him authority to prosecute the case for and in their behalf. 2. On January 26, 1999, Mr. Porfirio Daen was arrested by a Muntinlupa police on the strength of an expired warrant of arrest-it was issued on February 1990-and subsequently detained at the Muntinlupa City Jail, Tunasan, Muntinlupa City, until his release on February 18, 1999. 3. Since Mr. Daen needed the assistance of a lawyer for his release from incarceration, we tried to look for one. We told our friend Naty Sibuya, about the predicament of Mr. Daen, who recommended Atty. Wenceslao Barcelona to us, his wife being Natys cousin/relative. 4. So on January 26, 1999, at about 10:30 in the evening, Atty. Wenceslao Barcelona arrived at the Muntinlupa City Jail and conferred with Mr. Daen. We learned later that Mr. Daen has engaged the services of Atty. Barcelona for the latter to secure the release of the former from prison. After their conversation, Atty. Barcelona told us that if you could produce the amount of FIFTY THOUSAND (P50,000.00) Pesos he will cause the release of Mr. Daen from prison the following day. I told him that it was already late in the evening and I cannot any more produce the amount. But he insisted that I must produce even just a small amount. So, what I did was ask my relatives who were with me at the time to contribute and we were able to raise FIFTEEN THOUSAND SEVEN-HUNDRED (P15,700.00) Pesos. In the meantime, Atty. Barcelona proceeded to Chowking Restaurant which is just located across the city jail where he waited for us there. 5. At the aforesaid restaurant, I handed to Atty. Barcelona the amount who accepted the same. He reiterated his promise to secure the release of Mr. Daen the following day. Before he left, he asked us to meet him at Max Restaurant at around 12:00 noon at EDSA Crossing. He thereafter left because according to him, he would go and see somebody, (a justice) from the Supreme Court who could help the release of Mr. Daen. It was already about 12:30 in the early morning of January 27, 1999. 6. As agreed upon, I, together with Romana Soriano, proceeded to Max Restaurant. We arrived at around 12:00 noon. Atty. Barcelona came at around 1:00 P.M. He even told us that he just came from the Supreme Court where he fixed the case of Mr. Daen. It surprised me though, that he did not have with him any single document at the time. Then, I handed him a pay-to-cash check for TWENTY-FOUR THOUSAND (P24,000.00) Pesos, dated January 29, 1999. We told him that the check may be encashed on the said date. Although, he said that the Justices of the Supreme Court do not accept check he nonetheless, accepted it saying that he will have the same rediscounted. We thereafter left. 7. The following morning, January 28, 1999, at around 7:00 oclock Atty. Barcelona called me up by phone to say that since he was unable to have the check rediscounted, I must produce the amount of P5,000.00 and give

the amount to him at Max Restaurant at EDSA Crossing at around 12:00 noon. We were unable to meet him because we arrived at about 1 :00 oclock already. Nonetheless, we waited for him until 3:00 in the afternoon. Thereafter, I called him through his pager saying that we were waiting for him at Max. I also called up our house and inquire (sic) if a lawyer has called up. I was able to talk to my husband who informed me that a certain Atty. Barcelona called up. That Atty. Barcelona wanted to meet us at McDonalds at Barangka Drive, Mandaluyong. So we rushed to the place but he was not there. I again paged him informing him that we were already at McDonalds and to return my call through my cell phone. After a while, his wife called up to inform us to proceed to their house which was just five houses away from McDonalds. When we reached their house, we were met by his daughter who called her mother. We were ushered inside the house and after introducing ourselves, we gave not only P5,000.00, but TEN THOUSAND (P10,000.00) Pesos in cash to his wife in the presence of his daughter. Then we went to Putatan, Muntinlupa, hoping that he might be there. 8. We arrived at Putatan, Muntinlupa at around 4:30 in the afternoon and there we saw Atty. Barcelona. We informed him that we left the P10,000.00 with his wife at their house. Since Atty. Barcelona informed us that he could not secure the release of Mr. Daen because the check had not been encashed, Mr. Gil Daen, a nephew of Porfirio Daen, gave him FIFTEEN THOUSAND (P15,000.00) Pesos in cash. I also gave him an additional P1,000.00 for his gasoline expenses. 9. The next time that we saw Atty. Barcelona was on February 3, 1999, Wednesday at around 6:00 in the evening at Putatan, Muntinlupa. He informed us that he just came from the city jail where he had a conversation with Mr. Daen. He told us that he is going to release Mr. Daen from prison tomorrow, February 4, 1999. However, in the morning of February 4, we learned from the wife of Atty. Barcelona when she returned my call that her husband had left for Mindanao early that morning on board a private plane owned by Chiongbian allegedly to attend a peace talk with the Muslims. 10. After more than a week, I went to Putatan, Muntinlupa, because I was informed by the son of Mr. Daen that he saw Atty. Barcelona there. When I saw him, I confronted him about his undertaking to release Mr. Daen from prison, but he only advised us not to worry and promised (again) that he will return the entire amount of P64,000.00 more or less, on Thursday, February 18, 1999. But I never saw him again since then. I have repeatedly paged him to return my call but he never returned any of my calls.[3] In an Order dated April 15, 1999, Investigating Commissioner J. Virgilio A. Bautista of the Commission on Bar Discipline of the IBP, required respondent to submit his answer to the complaint, with a warning that he will be considered in default and the case will be heard ex parte, if he fails to do so.[4] Despite due notice,[5] respondent failed to file his answer. Thus, complainant filed a motion to declare respondent in

default,[6] resolution of which was held in abeyance by the Investigating Commissioner who required the parties to appear for hearing before the Commission on August 13, 1999.[7] On said date, respondent again failed to appear despite due receipt of notice.[8]Commissioner Bautista was thus constrained to consider respondent in default and complainant was allowed to present her evidence ex parte. Complainant testified and affirmed under oath the truthfulness and veracity of her AffidavitComplaint.[9] Complainant also manifested that she will present the check in the amount of P24,000.00[10] at the next date of hearing. Further hearings were set by the Commissioner, on October 1, 1999, November 19, 1999, October 12, 2001, December 14, 2001 and June 28, 2002, but both parties failed to appear on said dates despite due notice.[11] Commissioner Bautista submitted his Final Report and Recommendation on December 23, 2002 finding respondent guilty of malpractice and serious breach of the Code of Professional Responsibility and recommending that respondent be disbarred and ordered to return to complainant the amount of P64,000.00. The IBP Board of Governors adopted Commissioner Bautistas findings but reduced the penalty to suspension from the practice of law for six years. The Court disagrees with the IBP Board of Governors in reducing the penalty and upholds the findings and recommendation of Commissioner Bautista. Under the facts established by complainant, respondent should not only be suspended, but disbarred from practice. The object of a disbarment proceeding is not so much to punish the individual attorney himself, as to safeguard the administration of justice by protecting the court and the public from the misconduct of officers of the court, and to remove from the profession of law persons whose disregard for their oath of office have proved them unfit to continue discharging the trust reposed in them as members of the bar.[12] In In re Almacen, the Court expounded on the nature of disbarment proceedings, viz.: . . . 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 rather investigations by the Court into the conduct of one of its officers. Not being intended to inflict punishment, [they are] in no sense a criminal prosecution. Accordingly, there is neither a plaintiff nor a prosecutor therein. [They] may be initiated by the Court motu propio. Public interest is [their] 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 prove[n] themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney. . . .[13]

As in the Ricafort case,[14] herein respondent chose to forget that by swearing the lawyers oath, he became a guardian of truth and the rule of law, and an indispensable instrument in the fair and impartial administration of justice a vital function of democracy a failure of which is disastrous to society.[15] 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.[16] 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.[17] Complainants evidence consists solely of her Affidavit-Complaint and testimony before the Commission attesting to the truth of the allegations laid down in her affidavit. Commissioner Bautista and the IBP Board of Governors found her testimony together with her affidavit sufficient to support the finding that respondent committed the acts complained of . The matter of assigning values to the testimony of witnesses is best done by the investigating body (which in this case is the Investigating Commissioner) because unlike appellate courts, it can weigh such testimony in light of the demeanor, conduct and attitude of the witnesses at the trial.[18] Witnesses are weighed not numbered, and the testimony of a single witness may suffice if trustworthy and reliable.[19] The non-presentation of the check given to respondent does not affect complainants case as it will merely serve to corroborate her testimony and there is no law which requires that the testimony of a single witness needs corroboration except where the law expressly mandates such corroboration[20] which is not so required in administrative cases. The act of respondent in not filing his answer and ignoring the hearings set by the Investigating Commission, despite due notice, emphasized his contempt for legal proceedings. Thus, the Court finds no compelling reason to overturn the Investigating Commissioners judgment. Respondent is guilty of culpable violations of several Canons of the Code of Professional Responsibility, to wit: CANON 1 A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and for legal processes. CANON 7 A lawyer shall at all times upholds the integrity and dignity of the legal profession, and support the activities of the integrated bar. 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. CANON 16 A lawyer shall hold in trust all moneys and properties of his client that may come into his possession.

Rule 16.01 A lawyer shall account for all money or property collected or received for or from the client. The Code exacts from lawyers not only a firm respect for law, legal processes and the courts but also mandates the utmost degree of fidelity and good faith in dealing with clients and the moneys entrusted to them pursuant to their fiduciary relationship. Instead of promoting respect for law and the legal processes, respondent callously demeaned the legal profession by taking money from a client under the pretext of having connections with a Member of this Court. The Court has taken into consideration the penalties imposed in other administrative cases involving similar offenses, e. g.: In Judge Angeles vs. Atty. Uy, Jr.,[21] the respondent was suspended from the practice of law for one month for failing to promptly report and remit the amount of P16,500.00 he received on behalf of his client. In Gonato vs. Atty. Adaza,[22] the respondent was suspended from the practice of law for six months for charging his clients the amount of P15,980.00 as filing fees when in fact no such fees were due. In Dumadag vs. Lumaya,[23] the Court ordered the indefinite suspension of a lawyer for not remitting to his client the amount of P4,344.00 that he had received pursuant to an execution. In Gatchalian Promotions Talents Pool, Inc., vs. Atty. Naldoza ,[24] the respondent was disbarred for obtaining from his client the amount of US$2,555.00 allegedly as cash bond in an appealed case before this Court, when in fact no such amount has been paid or that the Court required such payment. In the present case, respondent collected money from the complainant and the nephew of the detained person in the total amount of P64,000.00 for the immediate release of the detainee through his alleged connection with a Justice of the Supreme Court. He deserves to be disbarred from the practice of law. This is not the first time that respondent has been charged with and found guilty of conduct unbecoming a lawyer. In Gil T. Aquino vs. Atty. Wenceslao C. Barcelona,[25] respondent misrepresented to the complainant that he could secure the restructuring of the complainants loan with the PNB through his connection with a certain Gonzalo Mericullo, legal assistant in the PNB. Based on such misrepresentation, respondent asked and received the amount of P60,000.00 from the complainant allegedly to be paid to the PNB. It turned out that there was no such employee in the PNB by the name Gonzalo Mericullo and the complainants property was eventually foreclosed. As in the present case, respondent did not appear before the IBP Commission on Bar Discipline despite receipt of the notices sent and duly received by him. After due proceedings, the IBP Board of Governors found respondent guilty of professional misconduct, and recommended that he be suspended from the practice of law for six months and ordered to render the accounting and restitute whatever remained of the P60,000.00 to the complainant. The Court adopted such

finding and recommendation and respondent was ordered suspended from the practice of law for six months, effective immediately. Respondent has demonstrated a penchant for misrepresenting to clients that he has the proper connections to secure the relief they seek, and thereafter, ask for money, which will allegedly be given to such connections. In this case, respondent misrepresented to complainant that he could get the release of Mr. Porfirio Daen through his connection with a Supreme Court Justice. Not only that, respondent even had the audacity to tell complainant that the Justices of the Supreme Court do not accept checks. In so doing, respondent placed the Court in dishonor and public contempt. In Surigao Mineral Reservation Board vs. Cloribel,[26] the Court expounded on a lawyers duty to the courts, viz.: A lawyer is an officer of the courts; he is, like the court itself, and instrument or agency to advance the ends of justice. [People ex rel. Karlin vs. Culkin, 60 A.L.R. 851, 855]. His duty is to uphold the dignity and authority of the courts to which he owes fidelity, not to promote distrust in the administration of justice. [In re Sotto, 82 Phil. 595, 602]. Faith in the courts a lawyer should seek to preserve. For, to undermine the judicial edifice is a disastrous to the continuity of the government and to the attainment of the liberties of the people. [Malcolm Legal and Judicial Ethics, 1949 ed., p. 160]. Thus has it been said a lawyer that [a]s an officer of the court, it is his sworn and moral duty to help build and not destroy unnecessarily that high esteem and regard towards the courts so essential to the proper administration of justice. The Judiciary has been besieged enough with accusations of corruption and malpractice. For a member of the legal profession to further stoke the embers of mistrust on the judicial system with such irresponsible representations is reprehensible and cannot be tolerated. Respondent made a mockery of the Judiciary and further eroded public confidence in courts and lawyers when he ignored the proceedings in the Aquino case and in the present case. More so, when he misrepresented to complainant that he has connections with a Member of the Court to accommodate his client and that Justices of the Court accept money. Indubitably, he does not deserve to remain a member of the Bar any minute longer. The practice of law is a privilege burdened with conditions. Adherence to the rigid standards of mental fitness, maintenance of the highest degree of morality and faithful compliance with the rules of the legal profession are the conditions required for remaining a member of good standing of the bar and for enjoying the privilege to practice law. The Supreme Court, as guardian of the legal profession, has ultimate disciplinary power over attorneys. This authority to discipline its members is not only a right but a bounden duty as well . . . That is why respect and fidelity to the Court is demanded of its members.[27] WHEREFORE, for gross misconduct, respondent Wenceslao C. Barcelona is DISBARRED from the practice of law. His name is ordered STRICKEN from the Roll of Attorneys. He is further directed to return to complainant Felicitas Berbano the amount

of Sixty Four Thousand Pesos (P64,000.00) within thirty (30) days from notice of this Decision. This Decision shall take effect immediately. Let copies hereof be furnished the Office of the Bar Confidant, to be appended to respondents personal record; the Integrated Bar of the Philippines; the Office of the President; the Department of Justice; the Philippines Judges Association; and all courts of the land for their information and guidance. SO ORDERED. Bellosillo, Puno, Panganiban, Quisumbing, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur. Davide, Jr., C.J., Ynares-Santiago, and Carpio, JJ., on official leave. Vitug, J., I concur except for the civil award which, in my view, should be taken apart from this administrative case.

A.C. No. 4354

April 22, 2002

LOLITA ARTEZUELA, complainant, vs. ATTY. RICARTE B. MADERAZO, respondent. PUNO, J.: For his failure to meet the exacting standards of professional ethics, the Board of Governors of the Integrated Bar of the Philippines (IBP) in its Resolution of May 2, 2000 recommended the suspension from the practice of law of respondent Atty. Ricarte B. Maderazo for the period of six (6) months, with a stern warning that repetition of the same act will be dealt with more severely. Respondent allegedly represented conflicting interests in violation of Canon 6 of the Code of Professional Ethics, and Canon 15 and Rule 15.03 of the Code of Professional Responsibility.1 By way of a Motion for Reconsideration,2 respondent now comes before this Court to challenge the basis of the IBP's resolution, and prays for its reversal. The factual antecedents of the case are as follows: On or about 3:00 in the early morning of December 24, 1992, Allan Echavia had a vehicular accident at Caduman St., corner H. Abellana St., Mandaue City. At the time of the accident, Echavia was driving a Ford Telstar car owned by a Japanese national named Hirometsi Kiyami, but was registered in the name of his brother-in-law, Jun Anthony Villapez. The car rammed into a small carinderia owned by complainant Lolita Artezuela.3 The destruction of the complainant's carinderia caused the cessation of the operation of her small business, resulting to her financial dislocation. She incurred debts from her relatives and due to financial constraints, stopped sending her two children to college.4

Complainant engaged the services of the respondent in filing a damage suit against Echavia, Villapez and one Bernardo Sia.5 Docketed as Civil Case No. 13666, the case was assigned to Branch 14 of the Regional Trial Court of Cebu. An Amended Complaint was thereafter filed, impleading Echavia, Kiyami and Villapez, and dropping Sia as a party-defendant.6 For his services, complainant paid the respondent the amount of Ten Thousand Pesos (P10,000.00) as attorney's fees and Two Thousand Pesos (P2,000.00) as filing fee.7 However, the case was dismissed on March 22, 1994, allegedly upon the instance of the complainant and her husband.8 Because of the dismissal of Civil Case No. 13666, complainant filed a civil case for damages against the respondent. It was docketed as CEB-18552 and assigned to Branch 57, Regional Trial Court of Cebu City. The case was dismissed on June 12, 2001.9 On November 24, 1994, Artezuela filed before this Court a verified complaint for disbarment against the respondent. She alleged that respondent grossly neglected his duties as a lawyer and failed to represent her interests with zeal and enthusiasm. According to her, when Civil Case No. 13666 was scheduled for pre-trial conference on August 20, 1993, respondent asked for its postponement although all the parties were present. Notwithstanding complainant's persistent and repeated followup, respondent did not do anything to keep the case moving. He withdrew as counsel without obtaining complainant's consent.10 Complainant also claimed that respondent engaged in activities inimical to her interests. While acting as her counsel, respondent prepared Echavia's Answer to the Amended Complaint. The said document was even printed in respondent's office. Complainant further averred that it was respondent who sought the dismissal of the case, misleading the trial court into thinking that the dismissal was with her consent.11 Respondent denied the complainant's allegations and averred that he conscientiously did his part as the complainant's lawyer in Civil Case No. 13666. He withdrew as counsel because the complainant was uncooperative and refused to confer with him. He also gave several notices to the complainant and made known his intention before he filed his Manifestation to withdraw as counsel. Because of the severed relationship, the lower court, after holding a conference, decided to grant respondent's manifestation and advised the complainant to secure the services of a new lawyer. Complainant, however, refused and instead, sought the dismissal of the case.12 Respondent alleged that he sought the postponement of the Pre-Trial Conference scheduled on August 20, 1993 so that he could file the Amended Complaint. He admitted that Echavia's Answer to the Amended Complaint was printed in his office but denied having prepared the document and having acted as counsel of Echavia. He claimed that complainant requested him to prepare Echavia's Answer but he declined. Echavia, however, went back to his office and asked respondent's secretary to print the document. Respondent intimated that the complainant and Echavia have fabricated the accusations against him to compel him to pay the amount of P500,000.00.13 This Court referred the complaint to the Integrated Bar of the Philippines (IBP). The IBP-Visayas Regional Committee on Bar Discipline formed an Investigating Committee to hear the disbarment complaint. On October 6, 1999, Commissioner Gabriel T. Ingles issued a Report finding the respondent guilty of representing conflicting interests, in violation of Canon 15 and Rule 15.03 of the Code of Professional Responsibility, as well as, of Canon 6 of the Code of Professional Ethics. He recommended that the respondent be suspended from the practice of law for a period of one (1) year.14 Commissioner Ingles did not rule on the other issues.

As aforesaid, the Board of Governors of the Integrated Bar of the Philippines upheld the findings of the Committee with modification only as to the penalty. Seeking reconsideration of the IBP's resolution, respondent contends that the Investigating Committee did not conduct trial; hence, he was not able to confront and examine the witnesses against him. He argues that the Investigating Committee's finding that he represented Echavia is contrary to court records and the complainant's own testimony in CEB-18552. He also casts doubt on the credibility of the Investigating Committee to render just and fair recommendations considering that the Investigating Commissioner and the respondent are counsel-adversaries in another case, Civil Case No. R-33277. Finally, he questions the imposition of a six-month suspension, which he claims to be harsh considering that his private practice is his only source of income.15 After carefully examining the records, as well as the applicable laws and jurisprudence on the matter, this Court is inclined to uphold the IBP's resolution.
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In administrative cases, the requirement of notice and hearing does not connote full adversarial proceedings, as "actual adversarial proceedings become necessary only for clarification or when there is a need to propound searching questions to witnesses who give vague testimonies."16 Due process is fulfilled when the parties were given reasonable opportunity to be heard and to submit evidence in support of their arguments.17 In the case at bar, records show that respondent repeatedly sought the postponement of the hearings, prompting the Investigating Commissioner to receive complainant's evidence ex parte and to set the case for resolution after the parties have submitted their respective memorandum. Hence: "The records show that this is already the third postponement filed by respondent namely December 12, 1996 (sic), January 3, 1996 and April 1, 1996. The Commission for the last time, will cancel today's hearing and can no longer tolerate any further postponement. Notify respondent by telegram for the hearing for (sic) April 22, 1996 at 2:00 P.M. Said hearing is intransferable in character. In the meantime, complainant affirmed her complaint and likewise her witness, Allan Echavia, also affirmed the contents of his affidavit and further stated that he had executed the same and understood the contents thereof."18 It is by his own negligence that the respondent was deemed to have waived his right to crossexamine the complainant and her witness. He cannot belatedly ask this Court to grant new trial after he has squandered his opportunity to exercise his right. Respondent's contention that the finding of the Investigating Committee was contrary to the records and the complainant's own admission in CEB-18552 is without merit. It is true that Atty. Aviola was Echavia's counsel-of-record in Civil Case No. 13666 as evidenced by the certification from the clerk of court,19 and as admitted by the complainant in CEB-18552, viz: "ATTY. MADERAZO: (To witness- ON CROSS) Q: Madam witness, you mentioned that the defendant in this case was the counsel of Allan Echavia as early as August 20, 1993, wherein you learned for the first time of this fact when you say he is counsel of Allan Echavia. (sic) You mean he is the counsel of record of Allan Echavia in the Civil Case before Judge Dacudao? Is that what you mean?

A: What I learned was that Atty. Alviola was the counsel of Allan Echavia in the case before Judge Dacudao but I heard Atty. Maderazo telling Allan Echavia not to admit that Atty. Maderazo is appearing for me because he will be the one to coordinate with Allan's case. Q: So it is clear that the defendant in this case is not the counsel of record of Allan Echavia. It was Atty. Alviola stated by you now? A: Atty. Maderazo was not Allan Echavia's counsel but it was Atty. Alviola who was the counsel of record of Allan Echavia."20 Nevertheless, the issue in this case is not whether the respondent also acted as the counsel-ofrecord of Echavia. Rather, it is whether or not he had a direct hand in the preparation of Echavia's Answer to the Amended Complaint. To be guilty of representing conflicting interests, a counsel-of-record of one party need not also be counsel-of-record of the adverse party. He does not have to publicly hold himself as the counsel of the adverse party, nor make his efforts to advance the adverse party's conflicting interests of record-- although these circumstances are the most obvious and satisfactory proof of the charge. It is enough that the counsel of one party had a hand in the preparation of the pleading of the other party, claiming adverse and conflicting interests with that of his original client. To require that he also be counsel-of-record of the adverse party would punish only the most obvious form of deceit and reward, with impunity, the highest form of disloyalty. Canon 6 of the Code of Professional Ethics states: "It is the duty of a lawyer at the time of the retainer to disclose to the client the circumstances of his relations to the parties and any interest in or in connection with the controversy, which might influence the client in the selection of the counsel. "It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this Canon, a lawyer represents conflicting interests when in behalf of one of the clients, it is his duty to contend for that which duty to another client requires him to oppose." (emphasis supplied) An attorney owes his client undivided allegiance. Because of the highly fiduciary nature of the attorney-client relationship, sound public policy dictates that a lawyer be prohibited from representing conflicting interests or discharging inconsistent duties. He may not, without being guilty of professional misconduct, act as counsel for a person whose interest conflicts with that of his present or former client. Indeed, good faith and honest intention on the part of the erring lawyer does not make this rule inoperative.21 The lawyer is an officer of the court and his actions are governed by the uncompromising rules of professional ethics. Thus: "The relations of attorney and client is founded on principles of public policy, on good taste. The question is not necessarily one of the rights of the parties, but as to whether the attorney has adhered to proper professional standard. With these thoughts in mind, it behooves attorneys, like Ceasar's wife, not only to keep inviolate the client's confidence, but also to avoid the appearance of treachery and double-dealing. Only thus can litigants be encouraged to entrust their secrets to their attorneys which is of paramount importance in the administration of justice."22

The professional obligation of the lawyer to give his undivided attention and zeal for his client's cause is likewise demanded in the Code of Professional Responsibility. Inherently disadvantageous to his client's cause, representation by the lawyer of conflicting interests requires disclosure of all facts and consent of all the parties involved. Thus: "CANON 15- All lawyers shall observe candor, fairness and loyalty in all his dealings and transactions with his clients. xxx 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." While the Resolution of the IBP is purely recommendatory, we find no reason to reverse the same. In disciplinary proceedings against members of the bar, only clear preponderance of evidence is required to establish liability. As long as the evidence presented by complainant or that taken judicial notice of by the Court is more convincing and worthy of belief than that which is offered in opposition thereto, the imposition of disciplinary sanction is justified.23 A perusal of Echavia's Answer to the Amended Complaint shows that it indeed conflicts with the complainant's claims. It reads: "1. The allegations (sic) in Paragraph One (1) of the Complaint is admitted in so far as it pertains to the personal circumstance and residence of the answering defendant. The rest of the allegations in Paragraph One (1), and all the allegations in Paragraph Two (2) , THREE (3), FOUR (4), FIVE (5), SIX (6), ELEVEN (11), TWELVE (12), and FOURTEEN (14), of the Complaint are DENIED for lack of knowledge sufficient to form a belief as to the truth of such allegations."24 By way of prayer, Echavia states: "WHEREFORE, it is respectfully prayed that after hearing, judgment be rendered dismissing plaintiff's complaint."25 Anent the authorship by the respondent of the document quoted above, the Investigating Committee found the testimonies of the complainant and Echavia credible as opposed to respondent's bare denial. As pointed out by Echavia, he was approached by Atty. Maderazo, introduced himself as his lawyer and after some sessions in the latter's office, asked him to return and sign a document which he later identified as the Answer to the Amended Complaint. The Investigating Committee found respondent's defense weak. Respondent did not bother to present his secretary as witness, nor obtain her affidavit to prove his allegations. Instead, he offered a convenient excuse--- that he cannot anymore locate his secretary. Respondent argued that it was the complainant who asked him to prepare Echavia's Answer to the Amended Complaint, after reaching an agreement whereby Echavia would testify in favor of the complainant. After he declined the request, he claimed that it was the complainant who prepared the document and asked his secretary to print the same. But as shown, Echavia's Answer to the Amended Complaint was in no way favorable to the complainant.

With the dismissal of Civil Case No. 13666, Echavia is practically off the hook. We cannot find any reason why Echavia would commit perjury and entangle himself, once again, with the law. He does not stand to profit at all by accusing the respondent falsely. Furthermore, considering complainant's stature and lack of legal education, we can not see how she could have prepared Echavia's Answer to the Amended Complaint and device a legal maneuver as complicated as the present case. Respondent's attack on the credibility of Investigating Commissioner Ingles to render an impartial decision, having been an adversary in Civil Case No. R-33277, does not convince us to grant new trial. This is the first time that respondent questions the membership of Commissioner Ingles in the Investigating Committee. If respondent really believed in good faith that Commissioner Ingles would be biased and prejudiced, he should have asked for the latter's inhibition at the first instance. Moreover, we could not find any hint of irregularity, bias or prejudice in the conduct of the investigation that would lead us to set it aside. Finally, we remind the respondent that the practice of law is not a property right but a mere privilege, and as such, must bow to the inherent regulatory power of the Court to exact compliance with the lawyer's public responsibilities.26 The suspension of the respondent's privilege to practice law may result to financial woes. But as the guardian of the legal profession, we are constrained to balance this concern with the injury he caused to the very same profession he vowed to uphold with honesty and fairness.
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IN VIEW WHEREOF, the Resolution of the IBP finding the respondent guilty of violating Canon 6 of the Code of Professional Ethics, and Canon 15 and Rule 15.03 of the Code of Professional Responsibility is affirmed. Respondent is suspended from the practice of law for six (6) months with a stern warning that a similar act in the future shall be dealt with more severely. SO ORDERED. Austria-Martinez, J., concur.

A.C. No. 5804

July 1, 2003

BENEDICTO HORNILLA and ATTY. FEDERICO D. RICAFORT, complainants, vs. ATTY. ERNESTO S. SALUNAT, respondent. RESOLUTION YNARES-SANTIAGO, J.: 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). Respondents brother, Aurelio S. Salunat, was a member of the PPSTA Board which approved respondents 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 lawyers 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 corporations 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 corporations 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 corporations 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 Teachers Assn., Inc., et al. v. 1992-1995 Board of Directors of the Philippine Public School Teachers 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-2002230 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. Davide, Jr., C.J., Vitug, Carpio, and Azcuna, JJ., concur.

LYDIA CASTRO-JUSTO, Complainant,

A.C. No. 6174 Present: CARPIO, Chairperson,

- versus -

BRION, PEREZ, SERENO, and REYES, JJ.

Promulgated: ATTY. RODOLFO T. GALING, Respondent. November 16, 2011

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

PEREZ, J.:

Before us for consideration is Resolution No. XVIII-2007-196[1] of the Board of Governors, Integrated Bar of the Philippines (IBP), relative to the complaint[2] for disbarment filed by Lydia Castro-Justo against Atty. Rodolfo T. Galing.

Complainant Justo alleged that sometime in April 2003, she engaged the services of respondent Atty. Galing in connection with dishonored checks issued by Manila City Councilor Arlene W. Koa (Ms. Koa). After she paid his professional fees, the respondent drafted and sent a letter to Ms. Koa demanding payment of the checks.[3] Respondent advised complainant to wait for the lapse of the period indicated in the demand letter before filing her complaint.

On 10 July 2003, complainant filed a criminal complaint against Ms. Koa for estafa and violation of Batas Pambansa Blg. 22 before the Office of the City Prosecutor of Manila.[4]

On 27 July 2003, she received a copy of a Motion for Consolidation[5] filed by respondent for and on behalf of Ms. Koa, the accused in the criminal cases, and the latters daughter Karen Torralba (Ms. Torralba). Further, on 8 August 2003, respondent appeared as counsel for Ms. Koa before the prosecutor of Manila.

Complainant submits that by representing conflicting interests, respondent violated the Code of Professional Responsibility.

In his Comment,[6] respondent denied the allegations against him. He admitted that he drafted a demand letter for complainant but argued that it was made only in deference to their long standing friendship and not by reason of a professional engagement as professed by complainant. He denied receiving any professional fee for the services he rendered. It was allegedly their understanding that complainant would have to retain the services of another lawyer. He alleged that complainant, based on that agreement, engaged the services of Atty. Manuel A. Ao.

To bolster this claim, respondent pointed out that the complaint filed by complainant against Ms. Koa for estafa and violation of B.P. Blg. 22 was based not on the demand letter he drafted but on the demand letter prepared by Atty. Manuel A. Ao.

Respondent contended that he is a close friend of the opposing parties in the criminal cases. He further contended that complainant Justo and Ms. Koa are

likewise long time friends, as in fact, they are comares for more than 30 years since complainant is the godmother of Ms. Torralba.[7] Respondent claimed that it is in this light that he accommodated Ms. Koa and her daughters request that they be represented by him in the cases filed against them by complainant and complainants daughter. He maintained that the filing of the Motion for Consolidation which is a non-adversarial pleading does not evidence the existence of a lawyer-client relationship between him and Ms. Koa and Ms. Torralba. Likewise, his appearance in the joint proceedings should only be construed as an effort on his part to assume the role of a moderator or arbiter of the parties.

He insisted that his actions were merely motivated by an intention to help the parties achieve an out of court settlement and possible reconciliation. He reported that his efforts proved fruitful insofar as he had caused Ms. Koa to pay complainant the amount of P50,000.00 in settlement of one of the two checks subject of I.S. No. 03G-19484-86.

Respondent averred that the failure of Ms. Koa and Ms. Torralba to make good the other checks caused a lot of consternation on the part of complainant. This allegedly led her to vent her ire on respondent and file the instant administrative case for conflict of interest.

In a resolution dated 19 October 2007, the Board of Governors of the IBP adopted and approved with modification the findings of its Investigating Commissioner. They found respondent guilty of violating Canon 15, Rule 15.03 of the Code of Professional Responsibility by representing conflicting interests and for his daring audacity and for the pronounced malignancy of his act. It was recommended that he be suspended from the practice of law for one (1) year with a warning that a repetition of the same or similar acts will be dealt with more severely.[8]

We agree with the Report and Recommendation of the Investigating Commissioner,[9] as adopted by the Board of Governors of the IBP.

It was established that in April 2003, respondent was approached by complainant regarding the dishonored checks issued by Manila City Councilor Koa.

It was also established that on 25 July 2003, a Motion for Consolidation was filed by respondent in I.S. No. 03G-19484-86 entitled Lydia Justo vs. Arlene Koa and I.S. No. 03G-19582-84 entitled Lani C. Justo vs. Karen Torralba. Respondent stated that the movants in these cases are mother and daughter while complainants are likewise mother and daughter and that these cases arose out from the same transaction. Thus, movants and complainants will be adducing the same sets of evidence and witnesses.

Respondent argued that no lawyer-client relationship existed between him and complainant because there was no professional fee paid for the services he rendered. Moreover, he argued that he drafted the demand letter only as a personal favor to complainant who is a close friend.

We are not persuaded. A lawyer-client relationship can exist notwithstanding the close friendship between complainant and respondent. The relationship was established the moment complainant sought legal advice from respondent regarding the dishonored checks. By drafting the demand letter respondent further affirmed such relationship. The fact that the demand letter was not utilized in the criminal complaint filed and that respondent was not eventually engaged by complainant to represent her in the criminal cases is of no moment. As observed by the Investigating Commissioner, by referring to complainant Justo as my client in the demand letter sent to the defaulting debtor[10], respondent admitted the existence of the lawyer-client relationship. Such admission effectively estopped him from claiming otherwise.

Likewise, the non-payment of professional fee will not exculpate respondent from liability. Absence of monetary consideration does not exempt lawyers from complying with the prohibition against pursuing cases with conflicting interests. The prohibition attaches from the moment the attorney-client relationship is established and extends beyond the duration of the professional relationship.[11] We held inBurbe v. Atty. Magulta[12] that it is not necessary that any retainer be paid, promised or charged; neither is it material that the attorney consulted did not afterward handle the case for which his service had been sought.[13]

Under Rule 15.03, Canon 15 of the Code of Professional Responsibility, [a] lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts. Respondent was therefore bound to refrain from representing parties with conflicting interests in a controversy. By doing so, without showing any proof that he had obtained the written consent of the conflicting parties, respondent should be sanctioned.

The prohibition against representing conflicting interest is founded on principles of public policy and good taste.[14] In the course of the lawyer-client relationship, the lawyer learns of the facts connected with the clients case, including the weak and strong points of the case. The nature of the relationship is, therefore, one of trust and confidence of the highest degree.[15]

It behooves lawyers not only to keep inviolate the clients confidence, but also to avoid the appearance of treachery and double-dealing for only then can litigants be encouraged to entrust their secrets to their lawyers, which is of paramount importance in the administration of justice.[16]

The case of Hornilla v. Atty. Salunat[17] is instructive on this concept, thus:

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 lawyers 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.[18] 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.[19] 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.[20] 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.[21]

The excuse proffered by respondent that it was not him but Atty. Ao who was eventually engaged by complainant will not exonerate him from the clear violation of Rule 15.03 of the Code of Professional Responsibility. The take- over of a clients cause of action by another lawyer does not give the former lawyer the right to represent the opposing party. It is not only malpractice but also constitutes a violation of the confidence resulting from the attorney-client relationship.

Considering that this is respondents first infraction, the disbarment sought in the complaint is deemed to be too severe. As recommended by the Board of Governors of the IBP, the suspension from the practice of law for one (1) year is warranted.

Accordingly, the Court resolved to SUSPEND Atty. Rodolfo T. Galing from the practice of law for one (1) year, with a WARNING that a repetition of the same or similar offense will warrant a more severe penalty. Let copies of this Decision be furnished all courts, the Office of the Bar Confidant and the Integrated Bar of the

Philippines for their information and guidance. The Office of the Bar Confidant is directed to append a copy of this Decision to respondents record as member of the Bar.

SO ORDERED.

REBECCA J. PALM, Complainant,

A.C. No. 8242 Present: PUNO, C.J., Chairperson, CARPIO, CORONA, LEONARDO-DE CASTRO, and BERSAMIN, JJ.

- versus -

ATTY. FELIPE ILEDAN, JR., Promulgated: Respondent. October 2, 2009 x - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION 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 Comtechs 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, Comtechs 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 Soledads reply, signed by respondent. In July 2004, due

to Soledads failure to comply with Comtech's written demands, Comtech filed a complaint for Estafa against Soledad before the Makati Prosecutors Office. In the proceedings before the City Prosecution Office of Makati, respondent appeared as Soledads counsel. On 26 January 2005, complainant filed a Complaint[1] 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 bylaws 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 IBPs 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 Comtechs retained counsel from February 2003 to November 2003. The IBP-CBD found that in the course of the meetings for the intended amendments of Comtechs 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 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 Comtechs 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-2006-583[5] 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 respondents 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 respondents 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-B[7] 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 complainants consultations, respondent obtained the information about the need to amend the corporate bylaws 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. 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 clients 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 clients 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 Comt echs retained counsel. Further, respondent made the representation after the termination of his retainer agreement with Comtech. A lawyers immutable duty to a former client does not cover transactions that occurred beyond the lawyers employment with the client.[16] The intent of the law is to impose upon the lawyer the duty to protect the clients interests only on matters that he previously handled fo r 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.

ANTONIO T. CARPIO

A.C. No. 6160

March 30, 2006

NESTOR PEREZ , Complainant, vs. ATTY. DANILO DE LA TORRE, Respondent. DECISION YNARES-SANTIAGO, J.: In a letter-complaint1 dated July 30, 2003 addressed to then Chief Justice Hilario G. Davide, Jr., complainant Nestor Perez charged respondent Atty. Danilo de la Torre with misconduct or conduct unbecoming of a lawyer for representing conflicting interests. Perez alleged that he is the barangay captain of Binanuaanan, Calabanga, Camarines Sur; that in December 2001, several suspects for murder and kidnapping for ransom, among them Sonny Boy Ilo and Diego Avila, were apprehended and jailed by the police authorities; that respondent went to the municipal building of Calabanga where Ilo and Avila were being detained and made representations that he could secure their freedom if they sign the prepared extrajudicial confessions; that unknown to the two accused, respondent was representing the heirs of the murder victim; that on the strength of the extrajudicial confessions, cases were filed against them, including herein complainant who was implicated in the extrajudicial confessions as the mastermind in the criminal activities for which they were being charged. Respondent denied the accusations against him. He explained that while being detained at the Calabanga Municipal Police Jail, Avila sought his assistance in drafting an extrajudicial confession regarding his involvement in the crimes of kidnapping for ransom, murder and robbery. He advised Avila to inform his parents about his decision to make an extrajudicial confession, apprised him of his constitutional rights and of the possibility that he might be utilized as a state-witness. Respondent claimed that when Ilo sought his assistance in executing his extrajudicial confession, he conferred with Ilo in the presence of his parents; and only after he was convinced that Ilo was not under undue compulsion did he assist the accused in executing the extrajudicial confession.

The complaint was referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.2 On August 16, 2005, the Investigating Commissioner submitted his report with the following recommendation: WHEREFORE, it is respectfully recommended that Atty. Danilo de la Torre be suspended for one (1) year from the practice of the legal profession for violation of Rule 15.03 of the Code of Professional Responsibility. RESPECTFULLY SUBMITTED. The Board of Governors of the IBP modified the recommendation by increasing the period of suspension to two years. In finding the respondent guilty of representing conflicting interests, the Investigating Commissioner opined that: In administrative proceedings, the complainant has the burden of proving, by substantial evidence, the allegations in his complaint. The complainant was able to prove by substantial evidence his charge against Atty. de la Tor[r]e. The respondent admitted that his services as a lawyer were retained by both Avila and Ilo. Perez was able to show that at the time that Atty. de la Torre was representing the said two accused, he was also representing the interest of the victims family. This was declared by the victims daughter, Vicky de Chavez, who testified before Branch 63 of the Regional Trial Court of Camarines Sur that her family retained the services of Atty. Danilo de la Torre to prosecute the case against her fathers killers. She even admitted that she was present when Atty. de la Torre met with and advised Avila and Ilo on one occasion. This is proof that the respondent consciously offered his services to Avila and Ilo despite the fact that he was already representing the family of the two accuseds victim. It may not even be improbable that respondent purposely offered to help the accused in order to further his other clients interest. The respondent failed to deny these facts or offer competent evidence to refute the said facts despite the ample opportunity given him. Under Rule 15.03 of the Code of Professional Responsibility, a lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts. Respondent is therefore duty bound to refrain from representing two parties having conflicting interests in a controversy. By doing precisely the foregoing, and without any proof that he secured the written consent of both parties after explaining to them the existing conflict of interest, respondent should be sanctioned. We agree with the findings of the IBP except for the recommended penalty. There is conflict of interests when a lawyer represents inconsistent interests of two or more opposing parties. The test is "whether or not in behalf of one client, it is the lawyers duty to fight for an issue or claim, but it is his duty to oppose it for the other client. In brief, if he argues for one client, this argument will be opposed by him when he argues for the other client." This rule covers not only cases in which confidential communications have been confided, but also those in which no confidence has been bestowed or will be used.3 There is a representation of conflicting interests if the acceptance of the new retainer will require the attorney to do anything which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation, to use against his first client any knowledge acquired through their connection.4

The prohibition against representing conflicting interest is founded on principles of public policy and good taste. In the course of a lawyer-client relationship, the lawyer learns all the facts connected with the clients case, including the weak and strong points of the case. The nature of that relationship is, therefore, one of trust and confidence of the highest degree. It behooves lawyers not only to keep inviolate the clients confidence, but also to avoid the appearance of impropriety and double-dealing for only then can litigants be encouraged to entrust their secrets to their lawyers, which is of paramount importance in the administration of justice.5 To negate any culpability, respondent explained that he did not offer his legal services to accused Avila and Ilo but it was the two accused who sought his assistance in executing their extrajudicial confessions. Nonetheless, he acceded to their request to act as counsel after apprising them of their constitutional rights and after being convinced that the accused were under no compulsion to give their confession. The excuse proferred by the respondent does not exonerate him from the clear violation of Rule 15.03 of the Code of Professional Responsibility which prohibits a lawyer from representing conflicting interests except by written consent of all concerned given after a full disclosure of the facts. As found by the IBP, at the time respondent was representing Avila and Ilo, two of the accused in the murder of the victim Resurreccion Barrios, he was representing the family of the murder victim. Clearly, his representation of opposing clients in the murder case invites suspicion of double-dealing and infidelity to his clients. What is unsettling is that respondent assisted in the execution by the two accused of their confessions whereby they admitted their participation in various serious criminal offenses knowing fully well that he was retained previously by the heirs of one of the victims. Respondent, who presumably knows the intricacies of the law, should have exercised his better judgment before conceding to accuseds choice of counsel. It did not cross his mind to inhibit himself from acting as their counsel and instead, he even assisted them in executing the extrajudicial confession. Considering that this is respondents first infraction, disbarment as sought by the complaint is deemed to be too severe. Under the present circumstances, we find that a suspension from the practice of law for three years is warranted. WHEREFORE, Atty. Danilo de la Torre is found GUILTY of violation of Rule 15.03 of the Code of Professional Responsibility for representing conflicting interests. He is SUSPENDED for THREE YEARS from the practice of law, effective upon his receipt of this Decision. He is WARNED that a repetition of the same or similar acts will be dealt with more severely. Let copies of this Decision be entered in the record of respondent and served on the IBP, as well as on the Court Administrator who shall circulate it to all courts for their information and guidance. SO ORDERED. CONSUELO YNARES-SANTIAGO Associate Justice

A.C. No. 6836

January 23, 2006

LETICIA GONZALES, Complainant, vs. ATTY. MARCELINO CABUCANA, Respondent. RESOLUTION AUSTRIA-MARTINEZ, J.: Before this Court is a complaint filed by Leticia Gonzales (Gonzales) praying that Atty. Marcelino Cabucana, (respondent) be disbarred for representing conflicting interests. On January 8, 2004, Gonzales filed a petition before the Integrated Bar of the Philippines (IBP) alleging that: she was the complainant in a case for sum of money and damages filed before the Municipal Trial Court in Cities (MTCC) of Santiago City, docketed as Civil Case No. 1-567 where she was represented by the law firm CABUCANA, CABUCANA, DE GUZMAN AND CABUCANA LAW OFFICE, with Atty. Edmar Cabucana handling the case and herein respondent as an associate/partner; on February 26, 2001, a decision was rendered in the civil case ordering the losing party to pay Gonzales the amount of P17,310.00 with interest and P6,000.00 as attorneys fees; Sheriff Romeo Gatcheco, failed to fully implement the writ of execution issued in connection with the judgment which prompted Gonzales to file a complaint against the said sheriff with this Court; in September 2003, Sheriff Gatcheco and his wife went to the house of Gonzales; they harassed Gonzales and asked her to execute an affidavit of desistance regarding her complaint before this Court; Gonzales thereafter filed against the Gatchecos criminal cases for trespass, grave threats, grave oral defamation, simple coercion and unjust vexation; notwithstanding the pendency of Civil Case No. 1-567, where respondents law firm was still representing Gonzales, herein respondent represented the Gatchecos in the cases filed by Gonzales against the said spouses; respondent should be disbarred from the practice of law since respondents acceptance of the cases of the Gatchecos violates the lawyer-client relationship between complainant and respondents law firm and renders respondent liable under the Code of Professional Responsibility (CPR) particularly Rules 10.01,1 13.01,2 15.02,315.03,4 21.015 and 21.02.6 On January 9, 2004, the IBP-Commission on Bar Discipline ordered Atty. Marcelino Cabucana, Jr. to submit his Answer to the complaint.7 In his Answer, respondent averred: He never appeared and represented complainant in Civil Case No. 1-567 since it was his brother, Atty. Edmar Cabucana who appeared and represented Gonzales in said case. He admitted that he is representing Sheriff Gatcheco and his wife in the cases filed against them but claimed that his appearance ispro bono and that the spouses pleaded with him as no other counsel was willing to take their case. He entered his appearance in good faith and opted to represent the spouses rather than leave them defenseless. When the Gatchecos asked for his assistance, the spouses said that the cases filed against them by Gonzales were merely instigated by a high ranking official who wanted to get even with them for their refusal to testify in favor of the said official in another case. At first, respondent declined to serve as counsel of the spouses as he too did not want to incur the ire of the high-ranking official, but after realizing that he would be abdicating a sworn duty to delay no man for money or malice, respondent entered his appearance as defense counsel of the spouses free of any charge. Not long after, the present complaint was crafted against respondent which shows that respondent is now the subject of a demolition job. The civil case filed by Gonzales where respondents brother served as counsel is different and distinct from the criminal cases filed by complainant against the Gatcheco spouses, thus, he did not violate any canon on legal ethics. 8

Gonzales filed a Reply contending that the civil case handled by respondents brother is closely connected with the cases of the Gatchecos which the respondent is handling; that the claim of respondent that he is handling the cases of the spouses pro bono is not true since he has his own agenda in offering his services to the spouses; and that the allegation that she is filing the cases against the spouses because she is being used by a powerful person is not true since she filed the said cases out of her own free will.9 The Commission on Bar Discipline of the IBP sent to the parties a Notice of Mandatory Conference dated March 1, 2004.10 On the scheduled conference, only a representative of complainant appeared.11 Commissioner Demaree Raval of the IBP-CBD then directed both parties to file their respective verified position papers.12 Complainant filed a Memorandum reiterating her earlier assertions and added that respondent prepared and notarized counter-affidavits of the Gatcheco spouses; that the high-ranking official referred to by respondent is Judge Ruben Plata and the accusations of respondent against the said judge is an attack against a brother in the profession which is a violation of the CPR; and that respondent continues to use the name of De Guzman in their law firm despite the fact that said partner has already been appointed as Assistant Prosecutor of Santiago City, again in violation of the CPR.13 Respondent filed his Position Paper restating his allegations in his Answer.14 On August 23, 2004, Commissioner Wilfredo E.J.E. Reyes issued an Order notifying both parties to appear before his office on October 28, 2004 for a clarificatory question regarding said case.15 On the said date, only respondent appeared16 presenting a sworn affidavit executed by Gonzales withdrawing her complaint against respondent. It reads: SINUMPAANG SALAYSAY TUNGKOL SA PAG-UURONG NG DEMANDA Ako, si LETICIA GONZALES, nasa tamang edad, Pilipino, may asawa, at nakatira sa BarangayDubinan East, Santiago City, makaraang manumpa ayon sa batas ay nagsasabing: Ako ang nagdedemanda o petitioner sa CBD Case No. 04-1186 na may pamagat na "Leticia Gonzales versus Atty. Marcelino C. Cabucana, Jr." na kasalukuyang nahaharap sa Commission on Bar Discipline ng Integrated Bar of the Philippines Ang pagkakahain ng naturang demanda ay nag-ugat sa di-pagkakaintindihan na namamagitan sa akin at nina Mr. and Mrs. Romeo and Anita Gatcheco. Dahil sa aking galit sa naturang mag-asawa, idinawit ko si Atty. Marcelino C. Cabucana, Jr. sa sigalot na namamagitan sa akin at sa mag-asawang Gatcheco, gayong nalalaman ko na si Atty. Marcelino C. Cabucana ay walang nalalaman sa naturang di pagkakaintindihan. Makaraang pag-isipang mabuti ang paghain ko ng demanda kontra kay Atty. Marcelino C. Cabucana, Jr., nakumbinsi ako na ang pagdedemanda ko kay Atty. Marcelino C. Cabucana, Jr. ay isang malaking pagkakamali dahil siya ay walang kinalalaman (sic) sa di

pagkakaintindihan naming(sic) ng mag-asawang Gatcheco. Si Atty. Marcelino C. Cabucana, Jr. ay di ko rin naging abogado sa Civil Case No. 1-567 (MTCC Br. I Santiago City) na inihain ko kontra kay Eduardo Mangano. Nais kong ituwid ang lahat kung kayat aking iniuurong ang naturang kasong inihain ko kontra kayAtty. Marcelino C. Cabucana, Jr. at dahil dito ay hindi na ako interesado pang ituloy and naturang kaso, at aking hinihiling sa kinauukulan na dismisin na ang naturang kaso. Ginawa ko ang sinumpaang salaysay na ito upang patotohanan sa lahat ng nakasaad dito.17 Commissioner Reyes issued an Order dated October 28, 2004 requiring Gonzales to appear before him on November 25, 2004, to affirm her statements and to be subject to clarificatory questioning.18 However, none of the parties appeared.19 On February 17, 2005, only respondent was present. Commissioner Reyes then considered the case as submitted for resolution.20 On February 24, 2005, Commissioner Reyes submitted his Report and Recommendation, portions of which are quoted hereunder: The Undersigned Commissioner believes that the respondent made a mistake in the acceptance of the administrative case of Romeo Gatcheco, however, the Commission (sic) believes that there was no malice and bad faith in the said acceptance and this can be shown by the move of the complainant to unilaterally withdraw the case which she filed against Atty. Marcelino C. Cabucana, Jr. However, Atty. Cabucana is reminded to be more careful in the acceptance of cases as conflict of interests might arise. It is respectfully recommended that Atty. Marcelino C. Cabucana, Jr. (be) sternly warned and reprimanded andadvised to be more circumspect and careful in accepting cases which might result in conflict of interests.21 On June 25, 2005, a Resolution was passed by the Board of Governors of the IBP, to wit: RESOLUTION NO. XVI-2005-153 CBD CASE NO. 03-1186 Leticia Gonzales vs. Atty. Marcelino Cabucana, Jr. RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering that respondent made (a) mistake in the acceptance of the administrative case of Romeo Gatcheco, Atty. Marcelino Cabucana, Jr. is hereby WARNED and REPRIMANDED and advised to be more circumspect and careful in accepting cases which might result in conflict of interests.22 Before going to the merits, let it be clarified that contrary to the report of Commissioner Reyes, respondent did not only represent the Gatcheco spouses in the administrative case filed by

Gonzales against them. As respondent himself narrated in his Position Paper, he likewise acted as their counsel in the criminal cases filed by Gonzales against them.23 With that settled, we find respondent guilty of violating Rule 15.03 of Canon 15 of the Code of Professional Responsibility, to wit: Rule 15.03 A lawyer shall not represent conflicting interest except by written consent of all concerned given after a full disclosure of the facts. It is well-settled that a lawyer is barred from representing conflicting interests except by written consent of all concerned given after a full disclosure of the facts.24 Such prohibition is founded on principles of public policy and good taste as the nature of the lawyer-client relations is one of trust and confidence of the highest degree.25Lawyers are expected not only to keep inviolate the clients confidence, but also to avoid the appearance of treachery and double-dealing for only then can litigants be encouraged to entrust their secrets to their lawyers, which is of paramount importance in the administration of justice.26 One of the tests of inconsistency of interests is whether the acceptance of a new relation would prevent the full discharge of the lawyers duty of undivided fidelity and loyalty to the client or invite suspicion of unfaithfulness or double-dealing in the performance of that duty.27 As we expounded in the recent case of Quiambao vs. Bamba,28 The proscription against representation of conflicting interests applies to a situation where the opposing parties are present clients in the same action or in an unrelated action. It is of no moment that the lawyer would not be called upon to contend for one client that which the lawyer has to oppose for the other client, or that there would be no occasion to use the confidential information acquired from one to the disadvantage of the other as the two actions are wholly unrelated. It is enough that the opposing parties in one case, one of whom would lose the suit, are present clients and the nature or conditions of the lawyers respective retainers with each of them would affect the performance of the duty of undivided fidelity to both clients.29 The claim of respondent that there is no conflict of interests in this case, as the civil case handled by their law firm where Gonzales is the complainant and the criminal cases filed by Gonzales against the Gatcheco spouses are not related, has no merit. The representation of opposing clients in said cases, though unrelated, constitutes conflict of interests or, at the very least, invites suspicion of double-dealing which this Court cannot allow.30 Respondent further argued that it was his brother who represented Gonzales in the civil case and not him, thus, there could be no conflict of interests. We do not agree. As respondent admitted, it was their law firm which represented Gonzales in the civil case. Such being the case, the rule against representing conflicting interests applies. As we explained in the case of Hilado vs. David:31 [W]e can not sanction his taking up the cause of the adversary of the party who had sought and obtained legal advice from his firm; this, not necessarily to prevent any injustice to the plaintiff but to keep above reproach the honor and integrity of the courts and of the bar. Without condemning the respondents conduct as dishonest, corrupt, or fraudulent, we do believe that upon the admitted facts it is highly inexpedient. It had the tendency to bring the profession, of which he is a distinguished member, "into public disrepute and suspicion and undermine the integrity of justice."32

The claim of respondent that he acted in good faith and with honest intention will also not exculpate him as such claim does not render the prohibition inoperative.33 In the same manner, his claim that he could not turn down the spouses as no other lawyer is willing to take their case cannot prosper as it is settled that while there may be instances where lawyers cannot decline representation they cannot be made to labor under conflict of interest between a present client and a prospective one.34Granting also that there really was no other lawyer who could handle the spouses case other than him, still he should have observed the requirements laid down by the rules by conferring with the prospective client to ascertain as soon as practicable whether the matter would involve a conflict with another client then seek the written consent of all concerned after a full disclosure of the facts.35 These respondent failed to do thus exposing himself to the charge of double-dealing. We note the affidavit of desistance filed by Gonzales. However, we are not bound by such desistance as the present case involves public interest.36 Indeed, the Courts exercise of its power to take cognizance of administrative cases against lawyers is not for the purpose of enforcing civil remedies between parties, but to protect the court and the public against an attorney guilty of unworthy practices in his profession.37 In similar cases where the respondent was found guilty of representing conflicting interests a penalty ranging from one to three years suspension was imposed.38 We shall consider however as mitigating circumstances the fact that he is representing the Gatcheco spouses pro bono and that it was his firm and not respondent personally, which handled the civil case of Gonzales. As recounted by complainant herself, Atty. Edmar Cabucana signed the civil case of complainant by stating first the name of the law firm CABUCANA, CABUCANA, DE GUZMAN AND CABUCANA LAW OFFICE, under which, his name and signature appear; while herein respondent signed the pleadings for the Gatcheco spouses only with his name,39 without any mention of the law firm. We also note the observation of the IBP Commissioner Reyes that there was no malice and bad faith in respondents acceptance of the Gatchecos cases as shown by the move of complainant to withdraw the case. Thus, for violation of Rule 15.03, Canon 15 of the Code of Professional Responsibility and taking into consideration the aforementioned mitigating circumstances, we impose the penalty of fine of P2,000.00. WHEREFORE, Resolution No. XVI-2005-153 of the Integrated Bar of the Philippines is APPROVED with MODIFICATION that respondent Atty. Marcelino Cabucana, Jr. is FINED the amount of Two Thousand Pesos (P2,000.00) with a STERN WARNING that a commission of the same or similar act in the future shall be dealt with more severely. SO ORDERED. MA. ALICIA AUSTRIA-MARTINEZ Associate Justice WE CONCUR:

A.C. No. 6051

April 2, 2007

CELIA ARROYO-POSIDIO,Complainant, vs. ATTY. JEREMIAS R. VITAN, Respondent. DECISION YNARES-SANTIAGO, J.: In a verified complaint1 dated June 14, 2002, complainant Celia Arroyo-Posidio prayed for the disbarment of respondent Atty. Jeremias R. Vitan on account of deceit, fraud, dishonesty and commission of acts in violation of the lawyers oath. Complainant alleged that she engaged the services of respondent in Special Proceeding No. C-525, entitled "Testate Estate of deceased Nicolasa S. de Guzman Arroyo," filed before the Regional Trial Court of Caloocan City. Complainant paid respondent legal fees in the amount of P20,000.00. However, on June 6, 1990, respondent withdrew his appearance as counsel in the said case, thus complainant engaged the services of another lawyer. Sometime in August 1996, respondent contacted complainant and showed her documents consisting of tax declarations of properties purportedly forming part of the estate of Nicolasa S. de Guzman-Arroyo, but were not included in the Inventory of Properties for distribution in Special Proceeding No. C-525. He convinced complainant to file another case to recover her share in the alleged undeclared properties and demanded P100,000.00 as legal fees therefor. After several months, however, respondent failed to institute any action. Complainant decided to forego the filing of the case and asked for the return of the P100,000.00, but respondent refused despite repeated demands. Consequently, complainant filed an action for sum of money and damages against respondent before Branch 81, Metropolitan Trial Court, Valenzuela City which was docketed as Civil Case No. 7130. On March 31, 1999, the trial court rendered a decision, the dispositive portion of which states: WHEREEFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and against the defendant ordering the latter to: 1. To pay plaintiff the sum of P100,000.00 with interest at the rate of 12% per annum from September 7, 1996 until the same is fully paid and/or satisfied; 2. To pay plaintiff the amount of P8,000.00 as and for attorneys fees; and 3. To pay the cost of suit.2 Respondent appealed to the Regional Trial Court which affirmed3 the Metropolitan Trial Court decision in toto.Thus, complainant filed a Motion for Issuance of a Writ of Execution which was granted on March 19, 2001.4 To satisfy the judgment against him, respondent issued Prudential Bank check number 03387425 dated May 31, 2001 in the amount of P120,000.00 in favor of complainant. However, upon presentment for payment, the check was dishonored for the reason: ACCOUNT CLOSED. Despite a written notice of dishonor and demand6 dated September 3, 2001, respondent refused to honor his

obligation. Hence, this administrative complaint charging respondent with deceit, fraud, dishonesty and commission of acts in violation of the lawyers oath. Respondent denied complainants allegations. He admitted having received the amount of P100,000.00 but claimed that the same was partial payment for his services in Special Proceeding Case No. C-525. Further, he alleged that he had already paid complainant the amount of P150,000.00 as evidenced by a Receipt & Quitclaim7dated August 10, 2000. On March 1, 2004, the case was referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. On January 15, 2006, the Investigating Commissioner submitted his Report8 finding respondent guilty of violating the lawyers oath and the Code of Professional Responsibility in defrauding his client and issuing a check without sufficient funds to cover the same. Thus 4.3 x x x Noteworthy is the factual finding of the court that Complainant had already paid respondent the amount ofP20,000.00 for services he had rendered in Special Proceeding case No. C-525. Thus, Respondents claim that the P100,000.00 given to him by Complainant allegedly for payment of his legal services in the Special Proceeding is not correct. The MTC decision likewise found that Respondent requested payment of the P100,000.00 in consideration for his representing Complainant in the additional claims to be filed against the estate of Nicolasa S. de Guzman Arroyo. Respondent, however, failed to file the claims. Hence, complainant demanded the return of theP100,000.00. The MTC decision has already become final and executory as evidenced by a copy of the Order of Writ of Execution issued by the Court. 4.4 x x x 4.5 As already pointed out, the RTC had rendered a decision affirming in toto the decision of the MTC that theP100,000.00 given by Complainant to Respondent is not for the payment of his previous services rendered in the Special Proceeding case No. C-525 but rather as payment for filing of an additional claim from the estate of the late Nicolasa S. de Guzman Arroyo. It is clear that there is identity of parties in the civil case for recovery of sum of money and damages and in the administrative case for disbarment filed by herein Complainant. Thus, while the causes of action are different in the two cases, there is conclusiveness on the factual circumstances surrounding Complainants delivery of the P100,000.00 to Respondent. Respondent[s] bare assertion that his receipt of theP100,000.00 was for payment of legal services previously rendered in the Special Proceeding case No. C-525 does not hold water and cannot overturn the factual conclusions reached by the MTC in its decision. 4.6 A lawyer may be suspended or disbarred for deceit or misrepresentation to the prejudice of or as a means to defraud his client. In the case of Munar v. Flores, the Supreme Court suspended an attorney who deceitfully defrauded a client of a sum of money allegedly representing cost of fees and other miscellaneous expenses for a suit to be filed but which promised suit he never filed nor did he return the amount despite demands. Failure on the part of the lawyer, upon demand, to return to his client the funds or property held by him on the latters behalf gives rise to the presumption that he has appropriated the same for his own use to the prejudice of and in violation of the trust reposed in him by his client. It is clear in this case that Complainant made demands for the return of the P100,000.00, but the same remained unanswered by Respondent. This prompted Complainant to file a civil case for collection of sum of money and damages. Worse, after the decision was rendered in favor of

Complainant, and a writ of execution issued, Respondent issued a check purportedly to settle the case only to have the check bounce for insufficiency of funds. The conversion of the clients property is a gross violation of general morality as well as professional ethics, and deserves severe punishment. This conversion of clients property is a ground for disciplinary action and presupposes fraudulent intent on the part of the lawyer. In the case of Manalato v. Reyes, the Supreme Court emphasized that fraudulent intent may be inferred from the lawyers refusal to make restitution after demand. Such circumstance is present in this case. xxxx In view of the foregoing, this Commissioner respectfully recommends that a penalty ranging from suspension for a period of six (6) months to one (1) year at the discretion of the Board be imposed with warning that repetition of similar conduct in the future will warrant a more severe penalty.9 The IBP Board of Governors adopted the findings of the Investigating Commissioner but modified the penalty from suspension to reprimand10 with stern warning that a similar misconduct will warrant a more severe penalty. We agree with the findings of the IBP. However, we find that the penalty of reprimand is not commensurate to the gravity of wrong committed by respondent. The ethics of the legal profession rightly enjoin every lawyer to act with the highest standards of truthfulness, fair play and nobility in the course of his practice of law.11 Lawyers are prohibited from engaging in unlawful, dishonest, immoral or deceitful conduct12 and are mandated to serve their clients with competence and diligence.13 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.14 Rule 16.01, Canon 16 of the Code of Professional Responsibility requires the lawyer to account for all money or property collected or received for or from his client. Where a client gives money to his lawyer for a specific purpose, such as to file an action, appeal an adverse judgment, consummate a settlement, or pay the purchase price of a parcel of land, the lawyer should, upon failure to take such step and spend the money for it, immediately return the money to his client.15 In the instant case, respondent received the amount of P100,000.00 as legal fees for filing additional claims against the estate of Nicolasa S. de Guzman Arroyo. However, he failed to institute an action, thus it was imperative that he immediately return the amount to complainant upon demand therefor. Having received payment for services which were not rendered, respondent was unjustified in keeping complainants money. His obligation was to immediately return the said amount. His refusal to do so despite complainants repeated demands constitutes a violation of his oath where he pledges not to delay any man for money and swears to conduct himself with good fidelity to his clients. A lawyer should refrain from any action whereby for his personal benefit or gain, he abuses or takes advantage of the confidence reposed in him by his client.16 A lawyer should be scrupulously careful in handling money entrusted to him in his professional capacity, because a high degree of fidelity and good faith on his part is exacted.17 In Barnachea v. Quiocho,18 the Court suspended a lawyer from the practice of law for one year for his failure to return clients funds which were given to him for the expenses for the transfer of title over real property and in payment for his legal services. The Court held:

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. 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 lawyers 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. The conversion by a lawyer [of] funds entrusted to him by his client is a gross violation of professional ethics and a betrayal of public confidence in the legal profession.19 (Emphasis supplied) Respondent must likewise be reminded that a lawyer should, at all times, comply with what the court lawfully requires.20 It bears stressing that the judgment against him in Civil Case No. 7130 has long become final and executory. However, up to this date, he has failed to comply with the order to pay complainant the amount ofP100,000.00 as well as interest and attorneys fees. His refusal to comply with the said order constitutes a willful disobedience to the courts lawful orders. Lawyers are particularly called upon to obey court orders and processes and are expected to stand foremost in complying with court directives being themselves officers of the court.21 And while respondent issued a check in the amount of P120,000.00 in favor of complainant, purportedly to satisfy the judgment against him, the check was later dishonored for having been drawn against a closed account. Respondent never denied the issuance of the check or refuted complainants allegations regarding the same. Neither did he question the veracity of complainants evidence which consisted of the check itself. Needless to say, the act of issuing a bouncing check further compounded respondents infractions. Time and again, we have held that the act of a lawyer in issuing a check without sufficient funds to cover the same constitutes willful dishonesty and immoral conduct as to undermine the public confidence in law and lawyers.22Such conduct indicates the respondents unfitness for the trust and confidence reposed on him, shows such lack of personal honesty and good moral character as to render him unworthy of public confidence and constitutes a ground for disciplinary action.23 It is clear from the foregoing that respondent fell short of the exacting moral and ethical standards imposed on members of the legal profession. Respondents refusal to return complainants money upon demand, his failure to comply with the lawful orders of the trial court, as well as the issuance of a bouncing check, reveal his failure to live up to his duties as a lawyer in consonance with the strictures of his oath and the Code of Professional Responsibility. It cannot be overemphasized that membership in the legal profession is a privilege. Whenever it is made to appear that an attorney is no longer worthy of the trust and confidence of the public, it becomes not only the right but also the duty of this Court, which made him one of its officers and gave him the privilege of ministering within its Bar, to withdraw the privilege.24 The Court believes that a penalty of suspension is called for under the circumstances. In Espiritu v. Cabredo IV,25a lawyer was suspended for one year for failure to account for and return the amount of P51,161.00 to his client. In Reyes v. Maglaya,26 a lawyer was suspended for one year for failure to return to his client the amount ofP1,500.00 despite numerous demands. Likewise, in Castillo v. Taguines,27 a lawyer was suspended for one year for failure to return to his client the amount of P500.00 and for issuing a bouncing check.

WHEREFORE, respondent Atty. Jeremias R. Vitan is SUSPENDED from the practice of law for a period of one (1) year effective from notice, with a STERN WARNING that a repetition of the same or similar acts will be dealt with more severely. Let copies of this Decision be entered in the record of the respondent in the Office of the Bar Confidant, and served on the Integrated Bar of the Philippines, as well as on the Court Administrator who shall circulate it to all the courts for their information and guidance. SO ORDERED. CONSUELO YNARES-SANTIAGO Associate Justice WE CONCUR:

A.C. No. 7021

February 21, 2007

MELVIN D. SMALL, Complainant, vs. ATTY. JERRY BANARES, Respondent. DECISION CARPIO, J.: The Case This is a complaint for disbarment filed by Melvin D. Small (complainant) against Atty. Jerry Banares1 (respondent) for failure to render legal services and to return the money received for his legal services. The Facts On 30 August 2001, complainant engaged the services of respondent in connection with several complaints to be filed against one Lyneth Amar (Amar). Complainant paid respondent P20,000 as acceptance fee.2 On 4 September 2001, complainant gave respondent P60,000 as filing fees for the cases against Amar.3Respondent then wrote a demand letter for Amar and talked to Amar on the phone. Respondent also informed complainant that he would be preparing the documents for the cases. Complainant consistently communicated with respondent regarding the status of the cases. But respondent repeatedly told complainant to wait as respondent was still preparing the documents. On 5 January 2002, complainant required respondent to present all the documents respondent had prepared for the cases against Amar. Respondent was not able to present any document. This prompted complainant to demand for a full refund of the fees he had paid respondent.4 Complainant

even hired the services of Atty. Rizalino Simbillo to recover the money from respondent. But respondent failed to return the money. Hence, complainant filed a case for disbarment before the Integrated Bar of the Philippines (IBP) against respondent. On 15 October 2004, IBP Director for Bar Discipline Rogelio A. Vinluan ordered respondent to submit his answer to the complaint. Respondent did not file an answer despite receipt of the order. On 21 January 2005, IBP Investigating Commissioner Wilfredo E.J.E. Reyes (IBP Commissioner Reyes) notified the parties to appear before him for a mandatory conference on 3 March 2005. Only complainant appeared at the conference. As there was no proof that respondent received the notice, IBP Commissioner Reyes reset the mandatory conference to 30 March 2005 and, later, to 14 April 2005. Respondent was warned that, if he fails to appear at the conference, the case will be considered submitted for resolution.
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On the 14 April 2005 conference, only complainant appeared despite respondents receipt of the notice. The Commission on Bar Discipline considered the case submitted for resolution. The IBPs Report and Recommendation On 14 July 2005, IBP Commissioner Reyes submitted his Report and Recommendation (Report) with the finding that respondent failed to render any legal service to complainant despite having been paid for his services. The Report considered complainants evidence sufficient to find respondent guilty of violating Canons 16,5 18,6 and 197 of the Code of Professional Responsibility (Code). IBP Commissioner Reyes recommended the imposition on respondent of a penalty of suspension from the practice of law for two years and that respondent be ordered to return complainants P80,000. In a Resolution dated 12 November 2005, the IBP Board of Governors adopted and approved the Report. The IBP Board of Governors forwarded the instant case to the Court as provided under Section 12(b), Rule 139-B8 of the Rules of Court. The Courts Ruling We sustain the findings and recommendation of the IBP. The Code provides that a lawyer shall serve his client with competence and diligence.9 The Code states that a lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the clients request for information.10 The records show that after receiving P80,000 respondent was never heard from again. Respondent failed to give complainant an update on the status of the cases. Moreover, it appears that respondent failed to file the appropriate cases against Amar. Respondents failure to communicate with complainant was an unjustified denial of complainants right to be fully informed of the status of the cases. When respondent agreed to be complainants counsel, respondent undertook to take all the necessary steps to safeguard complainants interests.11 By his inaction, respondent disregarded his duties as a lawyer. The Code also mandates that every lawyer shall hold in trust all moneys of his client that may come into his possession.12 Furthermore, a lawyer shall account for all money received from the client and shall deliver the funds of the client upon demand.13

In Meneses v. Macalino,14 the Court ruled that: 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. Consequently, if the lawyer does not use the money for the intended purpose, the lawyer must immediately return the money to the client.15 Respondent specifically received P80,000 for his legal services and the filing fees for the cases against Amar. Since respondent failed to render any legal service to complainant and he failed to file a case against Amar, respondent should have promptly accounted for and returned the money to complainant. But even after demand, respondent did not return the money. Respondents failure to return the money to complainant upon demand is a violation of the trust reposed on him and is indicative of his lack of integrity.16 Moreover, respondents misconduct is aggravated by his failure to file an answer to the complaint and his refusal to appear at the mandatory conference. The IBP rescheduled the mandatory conference twice to give respondent a chance to answer the complaint. Still, respondent failed to appear, exhibiting his lack of respect for the IBP and its proceedings.17 The relation of attorney and client is highly fiduciary, requiring utmost good faith, loyalty, and fidelity on the part of the attorney. In this case, respondent clearly fell short of the demands required of him as a member of the Bar. WHEREFORE, we find respondent Atty. Jerry Banares GUILTY of violating Canons 16 and 18 and Rules 16.01, 16.03, and 18.04 of the Code of Professional Responsibility. Accordingly, we SUSPEND respondent from the practice of law for two years effective upon finality of this Decision. We ORDER respondent to RETURN, within 30 days from notice of this decision, complainants P80,000, with interest at 12% per annum from the date of promulgation of this decision until full payment. We DIRECT respondent to submit to the Court proof of payment within fifteen days from payment of the full amount. Let copies of this decision be furnished the Office of the Bar Confidant, to be appended to respondents 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. ANTONIO T. CARPIO Associate Justice

A.C. No. 7057

July 25, 2006

DAVID L. ALMENDAREZ, JR., complainant, vs. ATTY. MINERVO T. LANGIT, respondent. DECISION

CARPIO, J.: The Case On 5 May 2004, David L. Almendarez, Jr. ("complainant") filed this complaint-affidavit1 before the Integrated Bar of the Philippines (IBP), seeking the disbarment of Atty. Minervo T. Langit ("respondent") for acts unbecoming a lawyer. The facts are undisputed: Complainant, as attorney-in-fact of his mother Pura Lioanag Vda. de Almendarez, was the plaintiff in an ejectment case before the Municipal Trial Court of Dagupan City, Branch 2 ("trial court"). Respondent served as complainant's counsel. While the case was pending, defendant Roger Bumanlag ("Bumanlag") deposited monthly rentals for the property in dispute to the Branch Clerk of Court. On 3 February 1994, the trial court rendered a decision in the ejectment case based on a compromise agreement executed by complainant and Bumanlag. On 18 December 1995, the trial court issued an alias writ of execution for the satisfaction of the decision. A court order2 dated 2 March 2000 granted the Omnibus Motion for Execution and Withdrawal of Deposited Rentals filed by respondent as complainant's counsel. Respondent filed a second motion for withdrawal of deposited rentals, which the trial court also granted on 16 March 2000. Sometime in May 2003, complainant learned that respondent was able to withdraw the rentals deposited by Bumanlag. Felicidad Daroy ("Daroy"), Officer-in-Charge Clerk of Court, confirmed this to complainant who received from Daroy copies of the two withdrawal slips drawn from the trial court's savings account. One slip dated 10 March 2000 was for P28,000,3 and another slip dated 19 April 2000 was for P227,000.4 Thus, respondent received a total of P255,000, as evidenced by two receipts5 signed by him. The withdrawals were made through Daroy's authorized representative Antonia Macaraeg, but Daroy personally delivered the money to respondent. Respondent did not inform complainant of these transactions. Complainant, through his new counsel Atty. Miguel D. Larida, sent respondent on 30 June 2003 a final demand letter for the accounting and return of the P255,000.6 Respondent failed to reply. Hence, complainant filed this case for disbarment against respondent for failing to account for complainant's funds. Complainant further accuses respondent of neglecting to pursue the implementation of the writ of execution issued in the ejectment case. On 12 May 2004, IBP Director for Bar Discipline Rogelio A. Vinluan ("IBP Director Vinluan") ordered respondent to submit his Answer to the complaint. Respondent did not file an answer despite receipt of the notice.7 On 4 October 2004, IBP Investigating Commissioner Caesar R. Dulay ("IBP Commissioner Dulay") notified the parties to appear before him for a mandatory conference on 15 November 2004, later reset to 17 January 2005. Only complainant appeared at the conference, prompting IBP Commissioner Dulay to order the conference terminated and to declare that respondent had waived his right to participate in the proceedings. IBP Commissioner Dulay directed the parties to file their respective position papers. Complainant submitted his position paper on 22 March 2005. Again, respondent took no action.

Findings and Recommendation of the IBP On 8 June 2005, IBP Commissioner Dulay submitted his Report and Recommendation ("Report")8 with the finding that respondent failed to account for money he held in trust for complainant. The Report considered complainant's evidence "clear and convincing" enough to justify disciplinary action against respondent for violation of Rule 16.01 of the Code of Professional Responsibility. IBP Commissioner Dulay recommended that respondent be declared guilty of gross misconduct and suspended for one year, aside from being ordered to render an accounting of the money he had received. In a Resolution9 dated 17 December 2005, the IBP Board of Governors approved the Report, with the modification that the penalty of suspension be increased to two years. The Court's Ruling We sustain the findings of the IBP. Respondent committed a flagrant violation of his oath when he received the sum of money representing the monthly rentals intended for his client, without accounting for and returning such sum to its rightful owner. Respondent received the money in his capacity as counsel for complainant. Therefore, respondent held the money in trust for complainant. The Code of Professional Responsibility ("Code") states: CANON 16 A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS POSSESSION. Rule 16.01A lawyer shall account for all money or property collected or received for or from the client. Rule 16.03A lawyer shall deliver the funds and property to 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. Respondent should have immediately notified complainant of the trial court's approval of the motion to withdraw the deposited rentals. Upon release of the funds to him, respondent could have collected any lien which he had over them in connection with his legal services, provided he gave prompt notice to complainant. A lawyer is not entitled to unilaterally appropriate his client's money for himself by the mere fact that the client owes him attorney's fees.10 In this case, respondent did not even seek to prove the existence of any lien, or any other right that he had to retain the money. Respondent's failure to turn over the money to complainant despite the latter's demands gives rise to the presumption that he had converted the money for his personal use and benefit. This is a gross violation of general morality as well as of professional ethics, impairing public confidence in the legal profession.11 More specifically, it renders respondent liable not only for violating the Code but also for contempt, as stated in Section 25, Rule 138 of the Rules of Court: SEC. 25. Unlawful retention of client's funds; contempt When an attorney unjustly retains in his hands money of his client after it has been demanded he may be punished for

contempt as an officer of the Court who has misbehaved in his official transactions; but proceedings under this section shall not be a bar to a criminal prosecution. Additionally, respondent failed to observe Canon 1712 of the Code, which obligates the lawyer to take up the cause of his client with entire zeal and devotion. It seems that after respondent received the withdrawn deposits, he never contacted complainant again. He did not pursue the implementation of the writ of execution issued in the ejectment case, to the prejudice of complainant. By his inaction, respondent violated the trust and confidence reposed in him. For in agreeing to be complainant's counsel, respondent undertook to take all steps necessary to safeguard complainant's interest in the case. The misconduct of respondent is aggravated by his unjustified refusal to heed the orders of the IBP requiring him to file an answer to the complaint-affidavit and, afterwards, to appear at the mandatory conference. Although respondent did not appear at the conference, the IBP gave him another chance to defend himself through a position paper. Still, respondent ignored this directive, exhibiting a blatant disrespect for authority. Indeed, he is justly charged with conduct unbecoming a lawyer, for a lawyer is expected to uphold the law and promote respect for legal processes.13 Further, a lawyer must observe and maintain respect not only to the courts, but also to judicial officers and other duly constituted authorities,14 including the IBP. Under Rule 139-B of the Rules of Court, the Court has empowered the IBP to conduct proceedings for the disbarment, suspension, or discipline of attorneys. The relation of attorney and client is highly fiduciary, requiring utmost good faith, loyalty, and fidelity on the part of the attorney. Respondent miserably failed in this regard. Instead, he demonstrated a lack of integrity, care, and devotion required by the legal profession from its members. Whenever a lawyer is no longer worthy of the trust and confidence of the public, this Court has the right and duty to withdraw his privilege as officer of the Court and member of the Bar.15 WHEREFORE, we find Atty. Minervo T. Langit GUILTY of violating Canons 1, 11, 16, and 17 of the Code of Professional Responsibility. We SUSPEND respondent from the practice of law for two years effective upon finality of this Decision. We ORDER respondent to RESTITUTE, within 30 days from finality of this Decision, complainant'sP255,000, with interest at 12% per annum from 30 June 2003 until fully paid. We DIRECT respondent to submit to the Court proof of payment within 15 days from payment of the full amount. Let copies of this Decision be furnished all courts, the Office of the Bar Confidant, as well as the Integrated Bar of the Philippines, for their notice and guidance. SO ORDERED. Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia, Velasco, Jr., J.J., concur.

A.C. No. 5542

July 20, 2006

DAYAN STA. ANA CHRISTIAN NEIGHBORHOOD ASSOCIATION, INC. and/or its Officers, Members, namely: MINERVA A. GENATO, JULIETA P. BENEDICTO, PRAXEDES A. MORENO, PATRICIA DE GUZMAN, PACITA G. MEQUERIO, HELEN RESUELLO, RIC DE GUZMAN, and ERLINDA RAMIREZ, complainants, vs. ATTY. NAPOLEON A. ESPIRITU, respondent. DECISION CALLEJO, SR., J.: The instant disbarment case was filed by the officers/members of the Dayan Sta. Ana Christian Neighborhood Association Inc., charging Atty. Napoleon A. Espiritu with "deceitful conduct, malpractice, gross misconduct in office, and/or violation of oath of office." The charges are contained in the Complaint-Affidavit1 dated May 17, 2001. Complainants sought the services of respondent sometime in November 1997 regarding a consolidated ejectment case where they were being sued in their respective capacities as officers and members of the association. The case, docketed as Civil Case Nos. 153905-90, was pending before the Municipal Trial Court of Manila, Branch 26. Complainants lost, however, and respondent advised them to file a supersedeas bond to stay their eviction.2Complainants then entrusted the following amounts to respondent as payment therefor: a.) On November 13, 1997 and November 28, 1997, he received the amount of P12,000.00 and P13,000.00 respectively from Minerva Genato. (Annexes "B" and "B-1") b.) On March 31, 1998, he received the amount of P41,257.00 from Rico Ramirez. (Annex "C") c.) On March 23, 1998, he received from us the amount of P116,605.00, which are imparted under the following circumstances: c.1.) Ric De Guzman c.2.) Patricia De Guzman c.3.) Ben/Lita Benedicto c.4.) Helena Resuello c.5.) Praxedes Moreno c.6.) Pacita Moquerio ------------------------------------------------------P14,010.00 P15,784.00 P37,870.00 P11,363.00 P12,040.00 P25,538.00

which he receipted erroneously in the amount of P86,666.72, but duly corrected by one of the members thereon. The aforesaid amount was accepted by him in the name of Dayan as shown by the receipt he issued thereto marked as Annex "D." d.) Again for the same reason, on July 28, 1998 he received the amount of P8,930.00 from us the following: d.1.) Ric De Guzman ---------P1,250.00 P1,125.00

d.2.) Patricia De Guzman ----------

d.3.) Ben/Lita Benedicto d.4.) Helena Resuello d.5.) Praxedes Moreno d.6.) Pacita Moquerio

-------------------------------------

P3,130.00 P 625.00 P 935.00 P1,865.00

which he again receipted under Dayan as evidenced by hereto attached copy of the receipt marked as Annex "E." e.) On July 28, 1998, he received again from Rico/Erlinda Ramirez the amount of P3,370.00. (Annex "F") f.) Also on July 28, 1998, he received from Minerva Genato the amount of P4,000.00. (Annex "H") g.) On August 7, 1998, he received from Manuel Rivera/Myrna Sayson the amount of P2,000.00 (Annex "H") and Prima Fidel the amount of P4,000.00. (Annex "H-1") h.) On August 27, 1998, he received from Minerva Genato the amount of P4,000.00. (Annex "I").3 According to complainants, respondent deposited only P48,000.00 before the Clerk of Court as evidenced by receipts furnished by respondent himself.4 Association President Minerva Genato then made a verbal demand for respondent to return the remaining balance, upon which respondent delivered a personal check for P141,904.00 in the name of Atty. Leonardo Ocampo. The check bounced for insufficiency of funds. Consequently, Atty. Ocampo sent a demand letter5 to Genato to make good the payment of the check. Genato continued to make verbal demands and later sent a letter6 dated May 25, 2000 demanding the payment of the amount of the check, to no avail. The Association was thus constrained to seek the help of the Integrated Bar of the Philippines (IBP). Through Atty. Helengrace G. Cabasal, another demand letter7 dated July 17, 2000 was sent for respondent to return the "remaining balance" of P206,497.00. An Information8 charging respondent with estafa was likewise filed before the RTC of Manila. In his Comment, 9 respondent admitted that he deposited to the clerk of court the amount of P48,481.00 as "partial supersedeas bond." In his desire to help complainants, he talked to the counsel of plaintiffs in Civil Case No. 153905-90. Respondent likewise admitted that he issued a postdated check to cover the balance (P141,904.00), and that he was unable to fund the same. He, however, made arrangements with Atty. Ocampo and his clients for the payment of the subject check, and requested the latter for complainants to stay in the subject property until December 1999, or even beyond. He pointed out that it was upon his representations that complainants were allowed to stay in the subject premises up to the present, and that the said amount (P141,904.00 and not P206,497.00 as falsely claimed by complainants), was meant as payment for supersedeas bond in Civil Case No. 153686-CV for the use and occupation of the complainants of the subject property from January 1991 to December 1996. Respondent likewise disclosed that complainants had lodged several complaints against him for estafa and/or theft in connection with the amount covered by the postdated check which he issued in favor of Atty. Ocampo, which, however, are all baseless. He insisted that complainants have no cause of action against him, and that the instant administrative complaint must be dismissed outright for the following reasons: As stated earlier, the basis of this administrative case as well as the criminal complaints is the demand letter to Atty. Ocampo to make good the check issued by respondent, and in

case of failure, Atty. Ocampo will insist on the issuance of the execution. It bears stressing, however, that because of the arrangement made by respondent with Atty. Ocampo, and as per their (Atty. Ocampo and the respondent) agreement, Atty. Ocampo no longer pursued the eviction f the complainants. UP TO THE PRESENT, complainants are still in the premises in question. The complainants were never prejudiced by the bounced check and the demand letter sent by Atty. Ocampo to the complainants. On the contrary, they have benefited by the representations made by respondent to Atty. Ocampo. Moreover, respondent had made representations with the City Council of Manila for the expropriation of the premises in question, which is now under consideration by the said City Council. Hence, complainants have no cause to complain. In fact, they should be grateful to the respondent because without his representations with Atty. Ocampo and the plaintiff in CIVIL CASE NO. 153686-CV, and with the City Council of Manila, complainants have long been evicted from the said premises. To sanction complainants' administrative and criminal complaints against the respondent is a mockery of justice; respondent will be placed in an unjust situation where he has to answer severally a single offense, if at all. He will be made liable to Atty. Ocampo or to the plaintiff in CIVIL CASE NO. 153686-CV, to the herein complainants and to the Honorable Court. Parenthetically, complainants have absolutely no personality to file or institute this action against the respondent. As it now clearly appears, the instant case is a persecution rather than a prosecution, where the aim or purpose of the complainants is to exact or extort money from the respondent. Complainants are well aware that they are not entitled to the money they sought to collect from the respondent which served as basis of their malicious and perjurious criminal and administrative complaints. The purpose of the money received by the respondent had greatly been served through the issuance of the check by respondent to Atty. Ocampo and respondent's representations with Atty. Ocampo and his client-plaintiff NOT TO EJECT complainants from the premises. Complainants have benefited too much from the representations of respondent with Atty. Ocampo, UNTIL NOW. To reiterate, it is the plaintiff in Civil Case No. 153686-CV which has a cause of action against the respondent and not or never the herein complainants.10 Complainants refuted these allegations, insisting that the basis of the filing of the instant administrative case, as well as the criminal charges for estafa against respondent, is the misappropriation or conversion of the amounts which should have been deposited with the court or with the lessor in order to cover the required bond or arrears in rental over the property; the check was adduced in evidence to prove the fact of misappropriation or conversion, as respondent issued the same after he failed to deposit the complete amount entrusted to him by complainants; and due to respondent's unlawful acts, they were prejudiced and suffered damages, thus: b. The continuing failure of the respondent to transmit the subsequent amounts he further collected and received, is not further prejudicial to the enforcement and effective implementation of the rights of the complainants under the expropriation ordinance, enacted by the local government, because of the nonpayment of the backrental constituting the supersedeas bond, which up to the present, is being demanded by the lessor, as precondition for negotiating, for the expropriation compensation due to the lessor-owner. c. It must be further noted and stressed, there was no representation at all made by respondent with the lessor through Atty. Ocampo; nor, with the local government in the

enactment and enforcement of said ordinance. Contrary then, to the respondent's contention, it was through the coordinative efforts of the complainants through their President, which caused the passage of said expropriation law. Further, the continuing stay of complainants in the premises is but the due consequence of such enactment and not through any representation on the part of respondent, who failed to protect the interest of the complainant, as legal counsel of his clients, the herein complainants, in gross dereliction of his duty as such.11 The case was then referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.12 Investigating IBP Commissioner Milagros V. San Juan scheduled the case for hearing. Witnesses for complainants testified on November 6, 2003. On the hearing set for June 13, 2004, however, respondent failed to appear. A representative informed the Commission that respondent was suffering from "high sugar blood count." The hearing was reset to February 26, 2004, where respondent was ordered to present his medical certificate. On the last scheduled hearing of the case on August 26, 2004, respondent failed to appear despite due notice, hence, complainant's testimony was heard ex-parte. Complainant was then given 15 days to make a formal offer of evidence, after which the case was submitted for resolution. The last notice sent to respondent was returned for being unclaimed. In her Report and Recommendation dated May 26, 2005, Commissioner San Juan recommended that respondent be disbarred, considering the following findings: The claim of respondent that the complainants [have] no cause of action against him is without merit. He admitted receiving the funds from complainants and that he deposited only P48,481.00 with the Clerk of Court as partial supersedeas bond. The fact that Atty. Leonardo Ocampo counsel of the plaintiff in the ejectment case accommodated the respondent with his personal check does not relieve respondent from liability. On the contrary it is evident that the arrangement was resorted to in order that respondent could extricate himself from the situation he was in. By obtaining a loan from Atty. Ocampo in the form of a check is a clear admission that the money entrusted to respondent by complainants was misappropriated. Noted is the failure of respondent to make an accounting of the funds entrusted to him and the absence of an explanation why only a partial payment of the bond was made. The contention of respondent that complainants were never prejudiced by the bouncing check likewise must fail. Neither will the payment of the check and the funds entrusted to him "doubly prejudice" respondent.13 On January 28, 2006, the IBP Board of Governors passed Resolution No. XVII-2006-05, modifying the penalty meted on respondent, to wit: 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 duly supported by the evidence on record and the applicable laws and rules, and for obtaining a loan from Atty. Ocampo in the form of a check is a clear admission that the money entrusted to respondent by complainants was misappropriated, Atty. Napoleon A. Espiritu is hereby SUSPENDED from the practice of law for (1) year. We agree with the foregoing recommendation. It is clear that respondent misappropriated the money which his clients, herein complainants, had entrusted to him for a specific purpose, and such an act cannot be countenanced.

Rule 16.01 of Canon 16 of the Code of Professional Responsibility provides that a lawyer shall account for all money or property collected or received for or from his client. A lawyer should be scrupulously careful in handling money entrusted to him in his professional capacity, because a high degree of fidelity and good faith on his part is exacted.14 In Parias v. Paguinto,15 the Court had the occasion to state that "money entrusted to a lawyer for a specific purpose, such as for filing fee, but not used for failure to file the case must immediately be returned to the client on demand."16 Indeed, a lawyer has no right to unilaterally appropriate his or her client's money.17 We note that respondent failed to appear before the IBP Investigating Commissioner to explain his actions, much less present his defense. In Rangwani v. Dio,18 we ruled that it is not enough for a member of the bar to deny the charges: Quite conspicuously, despite the opportunities accorded to respondent to refute the charges against him, he failed to do so or even offer a valid explanation. The record is bereft of any evidence to show that respondent has presented any countervailing evidence to meet the charges against him. His nonchalance does not speak well of him as it reflects his utter lack of respect towards the public officers who were assigned to investigate the cases. On the contrary, respondent's comments only markedly admitted complainant's accusations. When the integrity of a member of the bar is challenged, it is not enough that he denies the charges against him. He must meet the issue and overcome the evidence against him. He must show proof that he still maintains that degree of morality and integrity which at all times is expected of him. These, respondent miserably failed to do.19 The fiduciary duty of a lawyer and advocate is what places the law profession in a unique position of trust and confidence, and distinguishes it from any other calling. Once this trust and confidence is betrayed, the faith of the people not only in the individual lawyer but also in the legal profession as a whole is eroded. To this end, all members of the bar are strictly required to at all times maintain the highest degree of public confidence in the fidelity, honesty and integrity of their profession.20 The nature of the office of a lawyer requires that he shall be of good moral character. This qualification is not only a condition precedent to admission to the legal profession, but its continued possession is essential to maintain one's good standing in the profession.21 Law is a noble profession, and the privilege to practice it is bestowed only upon individuals who are competent intellectually, academically, and, equally important, morally. Because they are vanguards of the law and the legal system, lawyers must at all times conduct themselves, especially in their dealings with their clients and the public at large, with honesty and integrity in a manner beyond reproach.22 Section 27, Rule 138 of the Rules of Court provides: SEC. 27. Disbarment or 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 admission to the practice, or for a willful disobedience of any lawful order of a superior court, or for corruptly or willfully appearing as an attorney for a party to a case without authority 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. However, the power to disbar must be exercised with great caution, and 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. It should never be decreed where any lesser penalty, such as temporary

suspension, would accomplish the end desired.23In this case, the Court finds that one-year suspension from the practice of law will suffice as penalty against respondent. WHEREFORE, Atty. Napoleon A. Espiritu is guilty of violating the Code of Professional Responsibility. Accordingly, he is penalized with SUSPENSION from the practice of law for One (1) Year effective immediately. Respondent isDIRECTED to return the funds entrusted to him by complainants, and to inform the Court of the date of his receipt of this Decision. Let copies of this Decision be furnished the Office of the Bar Confidant, to be appended to respondent's personal records; the Integrated Bar of the Philippines; and all courts in the country for their information and guidance. SO ORDERED. Panganiban, C.J., Ynares-Santiago, Austria-Martinez, Chico-Nazario, J.J., concur.

FERNANDO C. CRUZ AND AMELIA CRUZ, complainants, vs. ATTY. ERNESTO C. JACINTO, respondents. Juris RESOLUTION MELO, J.: In their sworn complaint, spouses Fernando C. Cruz and Amelia Manimbo Cruz seek the disbarment of Atty. Ernesto C. Jacinto. The Integrated Bar of the Philippines, through Commissioner Jesulito A. Manalo of the Commissioner on Bar discipline, conducted an investigation. Thereafter, he submitted his Findings and Recommendation, thusly:
This is a disbarment case filed by the spouses Fernando and Amelia Cruz against Atty. Ernesto C. Jacinto. This case was filed with the Commission on Bar Discipline last 30 January 1991. The evidence of the complainants show that sometime in June 1990, Atty. Ernesto Jacinto, lawyer of the couple in an unrelated case, requested the Cruz spouses for a loan in behalf of a certain Concepcion G. Padilla, who he claimed to be an old friend as she was allegedly in need of money. The loan requested was for PhP 285,000.00 payable after 100 days for PhP 360,000 to be secured by a real estate mortgage on a parcel of land located at Quezon City. Sc juris The spouses, believing and trusting the representations of their lawyer that Padilla was a good risk, authorized him to start preparing all the

necessary documents relative to the registration of the Real Estate Mortgage to secure the payment of the loan in favor of the Cruz spouses. On 4 July 1990, the complainants agreed to the request of Atty. Jacinto and were presented by the latter with a Real Estate Mortgage Contract and a Transfer Certificate of Title No. 127275 in the name of Concepcion G. Padilla. The amount of PhP 285,000.00 was given by the spouses to the respondent in cash (PhP 270,000.00) and a PBCom check no. 713929 for PhP 15,000.00. Upon maturity of the loan on 15 October 1990, the spouses demanded payment from Concepcion G. Padilla by going to the address given by the respondent but there proved to be no person by that name living therein. When the complainants verified the genuineness of TCT No. 127275 with Register of Deeds of Quezon City, it was certified by the said office to be a fake and spurious title. Further efforts to locate the debtor-mortgagor likewise proved futile.Juris sc In their sworn affidavits given before the National Bureau of Investigation (NBI), the spouses claim that they relied much on the reassurances made by Atty. Jacinto as to Concepcion G. Padillas credit, considering that he was their lawyer. It was also their trust and confidence in Atty. Jacinto that made them decide to forego meeting the debtor-mortgagor. The complainants evidence also included the sworn statements of Estrella Ermino-Palipada, the secretary of the respondent at the Neri Law Office, and Avegail Payos, a housemaid of Atty. Jacinto. Ms. Palipada stated that: 1. she was the one who prepared the Real Estate Mortgage Contract and the Receipt of the loan upon the instruction of the respondents; 2. she was a witness to the transaction and never once saw the person of Concepcion G. Padilla, the alleged mortgagor; and that 3. she was instructed by Atty. Jacinto to notarize the said contract by signing the name of one Atty. Ricardo Neri. Avegail Payos, the housemaid of the respondent, in turn stated that she was the one who simulated the signature of one Emmanuel Gimarino, the Deputy Register of Deeds of Quezon City upon the instruction of Atty. Jacinto. This was done to make it appear that the real estate mortgage was registered and the annotation to appear at the back of the TCT as an encumbrance.

On 14 November 1997, a case for Estafa thru Falsification of Public documents under Art. 315 was filed against Atty. Jacinto. He was arrested and detained by the NBI. The defense of the respondent, on the other hand, was embodied in his Answer with Motion to Dismiss filed with the Commission on Bar Discipline. Therein, he alleged that the criminal information for estafa thru falsification filed against him had already been dismissed because of the voluntary desistance of the complainants. Misj uris In his version of the facts, Atty. Jacinto averred that while he indeed facilitated the loan agreement between the Cruz spouses and Concepcion G. Padilla, he had no idea that the latter would give a falsified Certificate of Title and use it to obtain a loan. He claimed that he himself was a victim under the circumstances. Respondent further alleged that he had not been remiss nor negligent in collecting the proceeds of the loan; that in fact, he had even advanced the full payment of the loan due to the complainants from his own savings, even if Concepcion G. Padilla had not yet paid, much less found. RECOMMENDATIONS It is every lawyers sworn duty to obey the laws of the land to promote respect for law and legal processes. The Code of Professional Responsibility command that he shall not engage in unlawful, dishonest, immoral or deceitful conduct. (Rule 1.01, Code of Professional Responsibility) Jj lex In the instant case, there was a clear yet unrebutted allegation in the complaint that the Respondent had ordered his secretary and housemaid to falsify the signatures of the notary public and the Deputy Register of Deeds respectively to make it appear that the real estate mortgage contract was duly registered and thus binding. While it may be true that the complaint for Estafa thru Falsification filed against the Respondent had been dismissed, the dismissal was because of the complainants voluntary desistance and not a finding of innocence. It neither confirms nor denies Respondents non-culpability. Furthermore, it is well-settled that disciplinary proceedings are "sui generis", the primary object of which is not so much to punish the individual attorney himself, as to safeguard the administration of justice by protecting the court and the public from the misconduct of lawyers, and to remove from the professions persons whose disregard of their oath have proven them unfit to continue discharging the trust reposed in them as members of the bar. Thus,

disciplinary cases may still proceed despite the dismissal of civil and/or criminal cases against a lawyer. A lawyer who does any unlawful fraudulent or dishonest act may and should be held administratively liable therefor. In the case at bar, the Respondent should not be made an exception. While it may be shown that he indeed advanced the payment due to his erstwhile clients, such will not exempt him from administrative liability. At best it can only mitigate. Respondent is recommended to be suspended for six (6) months from the practice of law. (Findings and Recommendation, pp. 1-4) New miso

On February 28, 1998, the Board of Governors of the IBP passed Resolution XIII-97-199 adopting and approving the Findings and Recommendation of the Investigating Commissioner, which reads:
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, respondent Atty. Ernesto C. Jacinto is SUSPENDED from the practice of law for six (6) months for his unlawful, fraudulent or dishonest act. (Notice of resolution [dated Feb. 28, 1998]).

In his Comment and Answer with Motion to Dismiss, respondent averred that complainants have no cause of action against him as the same has been waived, settled, and extinguished on account of the affidavits of voluntary desistance and quitclaim executed by them in the criminal case filed against him. Ncmmis The assertion must necessarily fail. The practice of law is so intimately affected with public interest that it is both a right and a duty of the State to control and regulate it in order to promote the public welfare. The Constitution vests this power of control and regulation in this Court. Since the practice of law is inseparably connected with the exercise of its judicial power in administration of justice, the Court cannot be divested of its constitutionally ordained prerogative which includes the authority to discipline, suspend or disbar any unfit and unworthy member of the Bar by a mere execution of affidavits of voluntary desistance and quitclaim (par. [5], Sec. 5, 1987 Constitution).

A lawyer may be disciplined or suspended for any misconduct, whether in his professional or private capacity, which shows him to be wanting in moral character, in honesty, in probity and good demeanor, thus rendering unworthy to continue as an officer of the court (Maligsa vs. Cabanting, 272 SCRA 408 [1997]), and the complainants who called the attention of the Court to the attorneys alleged misconduct are in no sense a party, and have generally no interest in the outcome except as all good citizens may have in the proper administration of justice (Rayos-Ombac vs. Rayos, 285 SCRA 93 [1998]). Undeniably, respondent represented complainants in the loan transaction. By his own admission, he was the one who negotiated with the borrower, his long-time friend and a former client. He acted not merely as an agent but as a lawyer of complaints, thus, the execution of the real estate mortgage contract, as well as its registration and annotation on the title were entrusted to him. In fact, respondent even received his share in the interest earnings which complainants realized from the transaction. His refusal to recognize any wrongdoing or carelessness by claiming that he is likewise a victim when it was shown that the title to the property, the registration of the real estate mortgage contract, and the annotation thereon were all feigned, will not at all exonerate him. Scncm As a rule, a lawyer is not barred from dealing with his client but the business transaction must be characterized with utmost honesty and good faith. However, the measure of good faith which an attorney is required to exercise in his dealings with this client is a much higher standard than is required in business dealings where the parties trade at arms length. Business transactions between an attorney and his client are disfavored and discouraged by the policy of the law. Hence, courts carefully watch these transactions to be sure that no advantage is taken by a lawyer over his client. This rule is founded on public policy for, by virtue of his office, an attorney is in an easy position to take advantage of the credulity and ignorance of his client. Thus, no presumption of innocence or improbability of wrongdoing is considered in an attorneys favor (Nakpit vs. Valdes, 286 SCRA 758 [1998]). Further, his fidelity to the cause of his client requires him to be evermindful of the responsibilities that should be expected of him. Verily, a lawyer may not, without being guilty of professional misconduct, act as counsel for a person whose interest conflicts with that of his former client. The reason for the prohibition is found in the relation of attorney and client, which is one of trust and confidence at the highest degree (Maturan vs. Gonzales, 287 SCRA 943 [1998]). Sdaamiso

Respondent utterly failed to perform his duties and responsibilities faithfully and well as to protect the rights and interests of his clients and by his deceitful actuations constituting violations of the Code of Professional Responsibilities must be subjected to disciplinary measures for his own good, as well as for the good of the entire membership of the Bar as a whole. WHEREFORE, the Court hereby adopts the resolution of the Board of Governors of the Integrated Bar of the Philippines and orders respondent Atty. Ernesto C. Jacinto suspended from the practice of law for six (6) months with the warning that a repetition of the same or similar offense will be dealt with more severely. Sdaad SO ORDERED. Vitug, Panganiban, Purisima, and Gonzaga-Reyes, JJ., concur.

DANIEL LEMOINE, complainant, vs. ATTY. AMADEO E. BALON, JR., respondent. DECISION
PER CURIAM:

On December 17, 1999, complainant Daniel Lemoine, a French national, filed a verified complaint[1] against respondent Atty. Amadeo E. Balon, Jr., for estafa and misconduct before the Integrated Bar of the Philippines. The case, docketed as CBD Case No. 99-679, was referred by the Commission on Bar Discipline to an Investigator for investigation, report and recommendation. The facts that spawned the filing of the complaint are as follows: In early 1998, complainant filed a car insurance claim with the Metropolitan Insurance Company (Metropolitan Insurance), the insurer of his vehicle which was lost. As complainant encountered problems in pursuing his claim which was initially rejected,[2] his friend, a certain Jesus Jess Garcia (Garcia), arranged for the engagement of respondents services. By letter[3] of October 21, 1998 addressed to Elde Management, Inc., ATTN: Mr. Daniel Lemoine, under whose care complainant could be reached, respondent advised complainant, whom he had not before met, that for his legal services he was charging 25% of the actual amount being recovered. . . payable upon successful recovery; an advance payment of P50,000.00 to be charged [to complainant] to be deducted from whatever amount [would] be successfully collected; P1,000.00 as appearance and

conference fee for each and every court hearings, conferences outside our law office and meetings before the Office of the Insurance Commission which will be also charged to our 25% recovery fee; and legal expenses such as but not limited to filing fee, messengerial and postage expenses . . . and other miscellaneous but related expenses, to be charged to complainants account which would be reimbursed upon presentation of statement of account. The letter-proposal of respondent regarding attorneys fees do es not bear complainants conformity, he not having agreed therewith. It appears that Metropolitan Insurance finally offered to settle complainants claim, for by letter[4] of December 9, 1998 addressed to it, respondent confirmed his acceptance of its offer to settle the claim of complainant in an ex-gratia basis of 75% of his policy coverage which is therefore FIVE HUNDRED TWENTY FIVE THOUSAND (P525,000.00) PESOS. A day or a few days before December 23, 1998 when complainant left for France,[5] he, on the advice of respondent, signed an already prepared undated Special Power of Attorney[6] authorizing respondent and/or Garcia to bring any action against Metropolitan Insurance for the satisfaction of complainants claim as well as to negotiate, sign, compromise[,] encash and receive payment from it. The Special Power of Attorney was later dated December 23, 1998 on which same date Metropolitan Insurance issued a Chinabank Check No. 841172 payable to complainant in the amount of P525,000.00 as full settlement of the claim.[7] The check was received by respondent. In the meantime, complainant returned to the Philippines in early January 1999 but left again on the 24th of the same month.[8] On inquiry about the status of his claim, Garcia echoed to complainant what respondent had written him (Garcia) in respondents letter[9] of March 26, 1999 that the claim was still pending with Metropolitan Insurance and that it was still subject of negotiations in which Metropolitan Insurance offered to settle it for P350,000.00representing fifty percent thereof. In the same letter to Garcia, respondent suggested the acceptance of the offer of settlement to avoid a protracted litigation. On December 6, 1999, on complainants personal visit to the office of Metropolitan Insurance, he was informed that his claim had long been settled via a December 23, 1998 check given to respondent the year before.[10]Complainant lost no time in going to the law office of respondent who was not around, however, but whom he was able to talk by telephone during which he demanded that he turn over the proceeds of his claim.[11] Respondent thereupon faxed to complainant a December 7, 1999 letter[12] wherein he acknowledged having in his possession the proceeds of the encashed check which he retained, however, as attorneys lien pending complainants payment of his attorneys fee, equivalent to fifty percent (50%) of entire amount collected. In the same letter, respondent protested what he branded as the uncivilized and unprofessional behavior complainant reportedly demonstrated at respondents office. Respondent winded up his letter as follows, quoted verbatim:

We would like to make it clear that we cannot give you the aforesaid amount until and unless our attorneys fees will be forthwith agreed and settled. In the same manner, should you be barbaric and uncivilized with your approached, we will not hesitate to make a proper representation with the Bureau of Immigration and Deportation for the authenticity of your visa, Department of Labor and Employment for your working status, Bureau of Internal Revenue for your taxation compliance and the National Bureau of Investigation [with] which we have a good network... While it [is your] prerogative to file a legal action against us, it is also our prerogative to file a case against you. We will rather suggest if you could request your lawyer to just confer with us for the peaceful settlement of this matter. (Underscoring and emphasis supplied)
As despite written demands,[13] respondent refused to turn over the proceeds of the insurance claim and to acknowledge the unreasonableness of the attorneys fees he was demanding, complainant instituted the administrative action at bar on December 17, 1999. In his Complaint-Affidavit, complainant alleged that [i]t appears that there was irregularity with the check, it having been issued payable to him, but and/or AMADEO BALON was therein intercalated after his (complainants) name.[14] Maintaining that respondent was entitled to only P50,000.00 in attorneys fees,[15] complainant decried respondents continued possession of the proceeds of his claim[16]and his misrepresentations that the recovery thereof was fraught with difficulties.[17] In his Counter-Affidavit[18] of February 18, 2000, respondent asserted that his continued retention of the proceeds of complainants claim is in lawful exercise of his lien for unpaid attorneys fees. He expressed readiness, however, to account for and turn them over once he got paid fifty percent (50%) thereof, he citing the so called contingent fee billing method of no cure, no pay adopted by practicing lawyers in the insurance industry as the basis of the amount of his attorneys fees,[19] which to him was justified in the absence of an attorney-client contract between him and complainant, the latter having rejected respondents letter-proposal of October 21, 1998.[20] Respondent also highlighted the value of the time and efforts he extended in pursuing complainants claim and the expenses he incurred in connection therewith. He went on to assert that his inability to contact complainant whose whereabouts he did not know prompted him to encash the check and keep the proceeds thereof in conformity with the Special Power of Attorney executed in his favor.[21] During the hearings conducted by the IBP Investigator, complainant echoed his allegations in his Complaint-Affidavit and stressed that he turned down as unreasonable respondents proposal in his October 21, 1998 letter that he be paid 25% of the actual amount collected for his legal services.[22] And he presented documentary evidence, including the March 26, 1999 letter of respondent informing his co-attorney-in-fact

Garcia of the supposedly still unrecovered claim and suggesting acceptance of the purported offer of Metropolitan Insurance to settle complainants claim at P350,000.00. Explaining how his above-mentioned March 26, 1999 letter to Garcia came about, respondent declared that it was made upon Garcias request, intended for a certain Joel Ramiscal (Ramiscal) who was said to be Garcias business partner.[23] Respondent later submitted a June 13, 2001 Supplement[24] to his CounterAffidavit reiterating his explanation that it was on Garcias express request that he wrote the March 26, 1999 letter, which was directed to the fax number of Ramiscal. Additionally, respondent declared that in the first week of May 1999, on the representation of Garcia that he had talked to complainant about respondents retention of fifty percent (50%) of the insurance proceeds for professional fees less expenses,[25] he gave Garcia, on a staggered basis, the total amount of P233,000.00 which, so respondent averred, is the amount of insurance claim complainant is entitled to receive less attorneys fees and expenses.[26] Thus, respondent claimed that he gave Garcia the amount of P30,000.00 on May 31, 1999 at Dulcinea Restaurant in Greenbelt, Makati; the amounts of P50,000.00, P20,000.00 and P30,000.00 on different occasions at his (respondents) former address through his executive secretary Sally I. Leonardo; the amount of P20,000.00 at the office of his (respondents) former employer Commonwealth Insurance Company through his subordinate Glen V. Roxas; and several other payments at Dulcinea, and at Manila Intercontinental Hotels coffee shop sometime in October 1999.[27] Respondent submitted the separate sworn statements of Leonardo and Roxas.[28] Explaining why no written memorandum of the turn over of various payments to Garcia was made, respondent alleged that there was no need therefor since he very well knew Garcia who is a co-Rotarian and co-attorney-in-fact and whom he really dealt with regarding complainants claim.[29] Respondent furthermore declared that he rejected complainants offer to pay him P50,000.00 for his services, insisting that since there had been no clear-cut agreement on his professional fees and it was through him that Metropolitan Insurance favorably reconsidered its initial rejection of complainants claim, he is entitled to a contingent fee of 50% of the net proceeds thereof.[30] Finally, respondent declared that he, in connection with his follow-up of the insurance claim, incurred representation expenses of P35,000.00, entertainment and other representation expenses on various occasions of P10,000.00, and transportation and gasoline expenses and parking fees of P5,000.00;[31] and that his retention of complainants money was justified in light of his apprehension that complainant, being an alien without a valid working permit in the Philippines, might leave the country anytime without settling his professional fees.[32] The Investigating Commissioner, by Report and Recommendation[33] of October 26, 2001, found respondent guilty of misconduct and recommended that he be disbarred and directed to immediately turn over to complainant the sum of P475,000.00 representing the amount of the P525,000.00 insurance claim less respondents professional fees of P50,000.00, as proposed by complainant.

The Board of Govenors of the Integrated Bar of the Philippines, acting on the Investigators Report, issued Resolution No. XV-2002-401[34] on August 3,2002, reading:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the aboveentitled 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, and considering respondents dishonesty which amounted to grave misconduct and grossly unethical behavior which caused dishonor, not merely to respondent but the noble profession to which he belongs, Respondent is hereby SUSPENDED from the practice of law for six (6) months with the directive to turn over the amount of Five Hundred Twenty Five Thousand (P525,000.00) Pesos to the complainant without prejudice to respondents right to claim attorneys fees which he may collect in the proper forum. (Underscoring supplied)
The records of the case are before this Court for final action. Respondent, by a Motion for Reconsideration[35] filed with this Court, assails the Investigating Commissioners Report and Recommendation as not supported by clear, convincing and satisfactory proof. He prays for the reopening of the case and its remand to the Investigator so that Garcia can personally appear for his (respondents) confrontation. There is no need for a reopening of the case. The facts material to its resolution are either admitted or documented. This Court is in full accord with the findings of the IBP Investigator that respondent violated the following provisions of the Code of Professional Responsibility, to wit:

RULE 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
xxx

CANON 15 - A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his clients. RULE 15.06 - A lawyer shall not state or imply that he is able to influence any public official, tribunal or legislative body.
xxx

CANON 16 - A lawyer shall hold in trust all moneys and properties of his client that may come into his possession.

RULE 16.01 - A lawyer shall account for all money or property collected or received for or from the client. RULE 16.02 - A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him. RULE 16.03 - A lawyer shall deliver the funds and property of his client when due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his 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.
xxx

CANON 17 - A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence in him.
xxx

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 clients request for information.
xxx

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 advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto.
Specifically with respect to above-quoted provision of Canon 16 of the Code of Professional Responsibility, the Filipino lawyers principal source of ethical rules, which Canon 16 bears on the principal complaint of complainant, a lawyer must hold in trust all moneys and properties of his client that he may come to possess. This commandment entails certain specific acts to be done by a lawyer such as rendering an accounting of all money or property received for or from the client[36] as well as delivery of the funds or property to the client when due or upon demand. [37] Respondent breached this Canon when after he received the proceeds of complainants insurance claim, he did not report it to complainant, who had a given address in Makati, or to his co-attorney-in-fact Garcia who was his contact with respect to complainant. In fact, long after respondent received the December 23, 1998 check for P525,000.00 he, by his letter of March 26, 1999 to Garcia, had even the temerity to state that the claim was still pending and recommend acceptance of the 50% offer . . .

which is P350,000.00 pesos. His explanation that he prepared and sent this letter on Garcias express request is nauseating. A lawyer, like respondent, would not and should not commit prevarication, documented at that, on the mere request of a friend. By respondents failure to promptly account for the funds he received and held for the benefit of his client, he committed professional misconduct.[38] Such misconduct is reprehensible at a greater degree, for it was obviously done on purpose through the employment of deceit to the prejudice of complainant who was kept in the dark about the release of the check, until he himself discovered the same, and has to date been deprived of the use of the proceeds thereof. A lawyer who practices or utilizes deceit in his dealings with his client not only violates his duty of fidelity, loyalty and devotion to the clients cause but also degrades himself and besmirches the fair name of an honorable profession. [39] That respondent had a lien on complainants funds for his attorneys fees did not relieve him of his duty to account for it.[40] The lawyers continuing exercise of his retaining lien presupposes that the client agrees with the amount of attorneys fees to be charged. In case of disagreement or when the client contests that amount for being unconscionable, however, the lawyer must not arbitrarily apply the funds in his possession to the payment of his fees.[41] He can file, if he still deems it desirable, the necessary action or proper motion with the proper court to fix the amount of such fees.[42] In respondents case, he never had the slightest attempt to bring the matter of his compensation for judicial determination so that his and complainants sharp disagreement thereon could have been put to an end. Instead, respondent stubbornly and in bad faith held on to complainants funds with the obvious aim of forcing complainant to agree to the amount of attorneys fees sought. This is an appalling abuse by respondent of the exercise of an attorneys 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. Respondent was, before receiving the check, proposing a 25% attorneys fees. After he received the check and after complainant had discovered its release to him, he was already asking for 50%, objection to which complainant communicated to him. Why respondent had to doubly increase his fees after the lapse of about one year when all the while he has been in custody of the proceeds of the check defies comprehension. At any rate, it smacks of opportunism, to say the least. As for respondents claim in his June 2001 Supplement to his Counter-Affidavit that he had on several occasions from May 1999 to October 1999 already delivered a total of P233,000.00 out of the insurance proceeds to Garcia in trust for complainant, this does not persuade, for it is bereft of any written memorandum thereof. It is difficult to believe that a lawyer like respondent could have entrusted such total amount of money to Garcia without documenting it, especially at a time when, as respondent alleged, he and Garcia were not in good terms.[43] Not only that. As stated earlier, respondents Counter-Affidavit of February 18, 2000 and his December 7, 1999 letter to complainant unequivocally contained his express admission that the total amount of P525,000.00 was in his custody. Such illogical, futile attempt to exculpate himself only aggravates his

misconduct. Respondents claim discredited, the affidavits of Leonardo and Roxas who, acting allegedly for him, purportedly gave Garcia some amounts forming part of the P233,000.00 are thus highly suspect and merit no consideration. The proven ancillary charges against respondent reinforce the gravity of his professional misconduct. The intercalation of respondents name to the Chinabank check that was issued payable solely in favor of complainant as twice certified by Metropolitan Insurance[44] is clearly a brazen act of falsification of a commercial document which respondent resorted to in order to encash the check. Respondents threat in his December 7, 1999 letter to expose complainant to possible sanctions from certain government agencies with which he bragged to have a good network reflects lack of character, self-respect, and justness. It bears noting that for close to five long years respondent has been in possession of complainants funds in the amount of over half a million pesos. The deceptions and lies that he peddled to conceal, until its discovery by complainant after about a year, his receipt of the funds and his tenacious custody thereof in a grossly oppressive manner point to his lack of good moral character. Worse, by respondents turnaround in his Supplement to his Counter-Affidavit that he already delivered to complainants friend Garcia the amount of P233,000.00 which, so respondent claims, is all that complainant is entitled to, he in effect has declared that he has nothing more to turn over to complainant. Such incredible position is tantamount to a refusal to remit complainants funds, and gives rise to the conclusion that he has misappropriated them. [45] In fine, by respondents questioned acts, he has shown that he is no longer fit to remain a member of the noble profession that is the law. WHEREFORE, respondent Atty. Amadeo E. Balon, Jr., is found GUILTY of malpractice, deceit and gross misconduct in the practice of his profession as a lawyer and he is hereby DISBARRED. The Office of the Clerk of Court is directed to strike out his name from the Roll of Attorneys and to inform all courts and the Integrated Bar of the Philippines of this Decision. Respondent is ordered to turn over to complainant, Daniel Lemoine, the amount of P525,000.00 within thirty (30) days from notice, without prejudice to whatever judicial action he may take to recover his attorneys fees and purported expenses incurred in securing the release thereof from Metropolitan Insurance. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.

PEDRO L. LINSANGAN,

A.C. No. 6672

Complainant, Present: PUNO, C.J., Chairperson, CARPIO, CORONA, LEONARDO-DE CASTRO and BERSAMIN, JJ. Promulgated: September 4, 2009 x-----------------------------------------x RESOLUTION CORONA, J.:

- versus -

ATTY. NICOMEDES TOLENTINO, Respondent.

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 respondents services instead, in exchange for a loan of P50,000. card:[6]
Front NICOMEDES TOLENTINO LAW OFFFICE CONSULTANCY & MARITIME SERVICES W/ FINANCIAL ASSISTANCE Fe Marie L. Labiano Paralegal 1st MIJI Mansion, 2nd Flr. Rm. M-01 6th Ave., cor M.H. Del Pilar Grace Park, Caloocan City Tel: 362-7820 Fax: (632) 362-7821 Cel.: (0926) 2701719

Complainant

also

attached

respondents

calling

Back SERVICES OFFERED: CONSULTATION AND ASSISTANCE TO OVERSEAS SEAMEN REPATRIATED DUE TO ACCIDENT, INJURY, ILLNESS, SICKNESS, DEATH AND INSURANCE BENEFIT CLAIMS ABROAD. (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 complainants 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 lawyers 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 publics 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 MANS 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 respondents 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 Labianos actions, respondents law practice was benefited. Hapless seamen were enticed to transfer representation on the strength of Labianos 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. With regard to respondents violation of Rule 8.02 of the CPR, settled is the rule that a lawyer should not steal another lawyers 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 Labianos referrals. Furthermore, he never denied Labianos connection to his office.[21] Respondent committed an unethical, predatory overstep

into anothers 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 clients 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, stenographers 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 lawyers 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 clients cause. If the lawyer lends money to the client in connection with the clients 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 clients cause.[24] As previously mentioned, any act of solicitation constitutes malpractice[25] which calls for the exercise of the Courts 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 lawyers 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) (b) (c) (d) (e)

lawyers name; name of the law firm with which he is connected; address; telephone number and special branch of law practiced.[28]

Labianos 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 Labianos 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.

NAZARIA S. HERNANDEZ (DECEASED), SUBSTITUTED BY LUCIANO S. HERNANDEZ, JR., complainant, vs. ATTY. JOSE C. GO, respondent. DECISION
PER CURIAM:

For our resolution is the verified letter-complaint[1] for disbarment against Atty. Jose C. Go dated June 23, 1975 filed by Nazaria S. Hernandez (now deceased). Both parties are from Zamboanga City. The allegations in the letter-complaint are: Sometime in 1961, complainants husband abandoned her and her son , Luciano S. Hernandez, Jr. Shortly thereafter, her husbands numerous creditors demanded payments of his loans. Fearful that the various mortgage contracts involving her properties will be foreclosed and aware of impending suits for sums of money against her, complainant engaged the legal services of Atty. Jose C. Go, herein respondent. Respondent instilled in complainant a feeling of helplessness, fear, embarrassment, and social humiliation. He advised her to give him her land titles covering Lots 848-A, 849-Q, and 849-P at Zamboanga City so he could sell them to enable her to pay her creditors. He then persuaded her to execute deeds of sale in his favor without any monetary or valuable consideration. Complainant agreed on condition that he would sell the lots and from the proceeds pay her creditors. Complainant also owned Lots 2118, 2139, and 1141-A, likewise located in Zamboanga City, which were mortgaged to her creditors. When the mortgages fell due, respondent redeemed the lots. Again, he convinced her to execute deeds of sale involving those lots in his favor. As a result, respondent became the registered owner of all the lots belonging to complainant. Sometime in 1974, complainant came to know that respondent did not sell her lots as agreed upon. Instead, he paid her creditors with his own funds and had her land titles registered in his name, depriving her of her real properties worth millions.

In our Resolution dated September 24, 1975, respondent was required to file his comment on the complaint. Instead of filing his comment, respondent submitted a motion to dismiss on the ground that the complaint is premature since there is pending before the then Court of First Instance of Zamboanga City Civil Case No. 1781 [2] for recovery of ownership and declaration of nullity of deeds of sale filed by complainant against him involving the subject lots. On November 14, 1975, we issued a Resolution denying res pondents motion and requiring him to submit his answer. In his answer dated December 19, 1975, respondent denied the allegations in the instant complaint. He averred that he sold, in good faith, complainants lots to various buyers, including himself, for valuable consideration. On several occasions, he extended financial assistance to complainant and even invited her to live with his family. His children used to call her Lola due to her frequent visits to his residence. He prayed that the complaint be dismissed for failure to state a cause of action. On January 17, 1977, we referred the case to the Office of the Solicitor General (OSG) for investigation, report, and recommendation. It was only on March 13, 1990 or after 13 years, 1 month and 26 days that the OSG filed a motion to refer the instant case to the IBP for the retaking of the testimonies of complainants witnesses and the submission of its report and recommendation. On April 4, 1990, we issued a Resolution referring the case to the IBP for investigation, report, and recommendation. The Report and Recommendation dated June 15, 2004 of Atty. Lydia A. Navarro, Commissioner of the IBP Commission on Bar Discipline, is quoted as follows:

A careful examination and evaluation of the evidence submitted by the parties showed that all the properties of the complainant are presently owned by the respondent by virtue of several deeds of sale executed by the complainant in favor of the respondent without monetary consideration except Lot 849-D situated in Tomas Claudio which was returned by the respondent to the complainant on September 5, 1974. It is evident from the records that respondent was the one who notarized the documents involving the said properties redeemed or repurchased by the complainant from her creditors which ended up in respondents name like in the deed of sale executed by Victoriano Dejerano in favor of Nazaria Hernandez over Lots 1141-A-3-A and 1141-A-3-B; deed of sale executed by Antonio Masrahon on September 3, 1961regarding Lot No. 1141-A; deed of absolute sale executed by Francisco Esperat over the Curuan properties on November 9, 1971 and the cancellation of the mortgage executed by Alfonso Enriquez on July 18, 1964 over the Tomas Claudio properties.

The foregoing legal activities and operations of the respondent in addition to his having discussed, advised and gave solutions to complainants legal problems and liabilities to her creditors and even requested her creditors for extension of time to pay complainants accounts constitute practice of law as legal counsel for consultation aside from representing complainant in other cases; a mute proof of a lawyer-client relations between them, a fact also admitted by the respondent. It is incumbent upon the respondent to have rendered a detailed report to the complainant on how he paid complainants creditors without selling her properties. Instead of selling to buyers at higher price, he paid them out of his own funds; then later on admitted that he was one of the purchasers of complainants properties in utter disregard of their agreement and no evidence was submitted by the respondent concerning the value of the said sale of complainants properties. As such, respondent did not adhere faithfully and honestly in his obligation and duty as complainants legal adviser and counsel when he took advantage of the trust and confidence reposed in him by the complainant in ultimately putting complainants properties in his name and possession in violation of Canon 17 of the Code of Professional Responsibility. WHEREFORE, in view of the foregoing, the undersigned respectfully recommends that respondent Atty. Jose C. Go be suspended from the practice of law for a period of six (6) months from receipt hereof and the IBP Chapter where he is a registered member be furnished a copy of the same for implementation hereof, subject to the approval of the Honorable Members of the Board of Governors.
On July 30, 2004, the IBP Board of Governors passed Resolution No. XVI-2004-39 adopting and approving the Report of Commissioner Navarro with modification in the sense that the recommended penalty of suspension from the practice of law was increased from six (6) months to three (3) years. We sustain the Resolution of the IBP Board of Governors finding that respondent violated the Code of Professional Responsibility. However, we have to modify its recommended penalty. Canon 16 of the Code of Professional Responsibility, the principal source of ethical rules for lawyers in this jurisdiction, provides:

A lawyer shall hold in trust all moneys and properties of his client that may come into his possession.
Respondent breached this Canon. His acts of acquiring for himself complainants lots entrusted to him are, by any standard, acts constituting gross misconduct, a

grievous wrong, a forbidden act, a dereliction in duty, willful in character, and implies a wrongful intent and not mere error in judgment. [3] Such conduct on the part of respondent degrades not only himself but also the name and honor of the legal profession. He violated this Courts mandate that lawyers must at all times conduct themselves, especially in their dealing with their clients and the public at large, with honesty and integrity in a manner beyond reproach.[4] Canon 17 of the same Code states:

A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him.
The records show that complainant reposed such high degree of trust and confidence in herein respondent, that when she engaged his services, she entrusted to him her land titles and allowed him to sell her lots, believing that the proceeds thereof would be used to pay her creditors. Respondent, however, abused her trust and confidence when he did not sell her properties to others but to himself and spent his own money to pay her obligations. As correctly observed by Investigating IBP Commissioner Lydia Navarro, respondent is duty-bound to render a detailed report to the complainant on how much he sold the latters lots and the amounts pai d to her creditors. Obviously, had he sold the lots to other buyers, complainant could have earned more. Records show that she did not receive any amount from respondent. Clearly, respondent did not adhere faithfully and honestly in his duty as complainants counsel. Undoubtedly, respondents conduct has made him unfit to remain in the legal profession. He has definitely fallen below the moral bar when he engaged in deceitful, dishonest, unlawful and grossly immoral acts. We have been exacting in our demand for integrity and good moral character of members of the Bar. They are expected at all times to uphold the integrity and dignity of the legal profession [5] and refrain from any act or omission which might lessen the trust and confidence reposed by the public in the fidelity, honesty, and integrity of the legal profession.[6] Membership in the legal profession is a privilege.[7] And whenever it is made to appear that an attorney is no longer worthy of the trust and confidence of his clients and the public, it becomes not only the right but also the duty of this Court, which made him one of its officers and gave him the privilege of ministering within its Bar, to withdraw the privilege.[8] Respondent, by his conduct, blemished not only his integrity as a member of the Bar, but also the legal profession. Public interest requires that an attorney should exert his best efforts and ability to protect the interests of his clients. A lawyer who performs that duty with diligence and candor not only protects his clients cause; he also serves the ends of justice and does honor to the bar and helps maintain the respect of the community to the legal profession. It is a time-honored rule that good moral character is not only a condition precedent to admission to the practice of law. Its continued possession is also essential for remaining in the legal profession.[9]

Section 27, Rule 138 of the Revised Rules of Court mandates that a lawyer may be disbarred or suspended by this Court for any of the following acts: (1) deceit; (2) malpractice; (3) gross misconduct in office; (4) grossly immoral conduct; (5) conviction of a crime involving moral turpitude; (6) violation of the lawyers oath; (7) willful disobedience of any lawful order of a superior court; and (8) willfully appearing as an attorney for a party without authority to do so.[10] In Rayos-Ombac vs. Rayos,[11] we ordered the disbarment of lawyer when he deceived his 85-year old aunt into entrusting him with all her money and later refused to return the same despite demand. In Navarro vs. MenesesIII,[12] we disbarred a member of the Bar for his refusal or failure to account for the P50,000.00 he received from a client to settle a case. In Docena vs. Limson,[13] we expelled from the brotherhood of lawyers, an attorney who extorted money from his client through deceit and misrepresentation. In Busios vs. Ricafort,[14] an attorney was stripped of his license to practice law for misappropriating his clients money. Considering the depravity of respondents offense, we find the penalty recommended by the IBP too light. It bears reiterating that a lawyer who takes advantage of his clients financial plight to acquire the latters properties for his own benefit is destructive of the confidence of the public in the fidelity, honesty, and integrity of the legal profession. Thus, for violation of Canon 16 and Canon 17 of the Code of Professional Responsibility, which constitutes gross misconduct, and consistent with the need to maintain the high standards of the Bar and thus preserve the faith of the public in the legal profession, respondent deserves the ultimate penalty, that of expulsion from the esteemed brotherhood of lawyers. WHEREFORE, respondent JOSE S. GO is found guilty of gross misconduct and is DISBARRED from the practice of law. His name is ordered STRICKEN from the Roll of Attorneys EFFECTIVE IMMEDIATELY. Let copies of this Decision be furnished the Bar Confidant, the Integrated Bar of the Philippines and all courts throughout the country. SO ORDERED. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga, ChicoNazario and Garcia, JJ., concur. Callejo, Sr., J., on official leave.

Adm. Case No. 4982

August 9, 2001

KATRINA JOAQUIN CARIO, petitioner, vs. ATTY. ARTURO DE LOS REYES, respondent. MENDOZA, J.:

This is a petition for review of the Integrated Bar of the Philippines' (IBP) Resolution No. XIV-2000460, dated July 29, 2000, dismissing the complaint for inexcusable negligence filed Katrina Cario against respondent Atty. Arturo de los Reyes. Complainant alleged that on March 3, 1998, she contracted the services of respondent, a former Quezon City prosecutor, to file complaints for slander by deed, threats, and physical injuries against her relatives Faye Lorenz, Godofreditas Lorenz, and Rosario Joaquin, who themselves subsequently filed charges against complainant and her father for maltreatment, physical injuries, and threats with the Quezon City Prosecutor's Office. As agreed, complainant paid respondent the amount of P10,000.00 as acceptance fee. However, despite demands by complainant, respondent never filed the complaint-affidavits with the prosecutor's office for preliminary investigation. On the other hand, with respect to the complaints filed by the Lorenzes and Joaquin, Quezon City Assistant Prosecutor Francisco Soller recommended the filing of informations for maltreatment, threats, and slight physical injuries against complainant and her father. The cases were subsequently filed before the Metropolitan Trial Court, Branch 41, Quezon City. Complainant alleged that respondent failed to protect their interest, for which reason they were forced to hire the services of another counsel, Atty. Ricardo J.M. Rivera, who promptly filed a motion for reinvestigation, which, however, was denied by the prosecutor's office.1 Respondent denied that he had agreed to represent petitioner in filing criminal complaints against petitioner's aforementioned relatives. He stated that his services were hired in connection with the filing of a case for partition of the lot occupied by petitioner and her father, on one hand, and their relatives in question, on the other hand. It was alleged that petitioner promised to furnish him the certification of the Lupon ng Tagapamayapa for the filing of the case in court as well as the Transfer Certificate of Title of the lot to be partitioned but, as petitioner failed to do so, respondent withdrew from the case and returned the acceptance fee of P10,000.00 paid by petitioner. Respondent added that he is a member of the Commission on Bar Discipline of the IBP investigating complaints against member of the bar, and he is mindful of the duties of members of the bar toward their clients.2 Petitioner admits the return of the P10,000.00 acceptance fee, but says that the money was paid only after repeated demands made by her to respondent and after she had threatened to charge respondent with estafa.3 On June 14, 1999, the Court referred the case to the IBP for investigation, report, and recommendation. In its resolution, dated July 29, 2000, the IBP dismissed the complaint for insufficiency of evidence. Hence this petition under Rule 139-B, 12(c). We find the petition meritorious. In dismissing petitioner's complaint, the IBP Investigating Commissioner4 stated: [C]omplainant's and respondent's version of the incident which gave rise to the present complaint are poles apart. Consequently, the Commission had to weigh very well the evidence adduced by both parties. When juxtaposed against each other, the Commission finds complainant's evidence inadequate to justify the imposition of disciplinary action against the respondent. Certainly, if the intention of the respondent was to wreck havoc on the complainant, he would not even have bothered to return the P10,000.00 acceptance fee, a fact which is not being disputed. All persons are presumed innocent of the charge/s against [them] by reason of constitutional and statutory dicta. To overcome this presumption, strong and convincing evidence must be adduced.

In the case at bar, this Commission finds complainant's evidence inadequate or insufficient to overcome said presumption. Accordingly, there is no other option but to deny due course to complainant's complaint.5 The Court cannot subscribe to this finding. In her complaint, petitioner narrated in detail the circumstances of her employment of respondent's legal services. She alleged: [I]n the morning of February 25, 1998, at around 9:00 o'clock, my father, Virgilio S. Joaquin, and I were the unfortunate victims of physical assault, slander by deed and threats committed by our relatives, Rosario M. Joaquin, Faye Maybelle J. Lorenz and Godofreditas Lorenz. Resultantly, we filed with the Barangay a complaint for said crimes against the offenders, who, in turn, filed countercharges against us for maltreatment, physical injuries and threats. On March 3, 1998, while conciliation hearings on the charges and countercharges were being undertaken by the Barangay, I and my father hired the legal services of Atty. Arturo de los Reyes, a former Quezon City Prosecutor, who was referred to us by a family friend and neighbor, Lily Jodloman. After briefing him of our legal problem, Atty. Reyes agreed to be our lawyer in the cases for a fee of P10,000.00 plus P1,000.00 per court appearance. For the purpose of preparing our affidavit-complaint, I furnished Atty. Reyes a xerox copy each of the medical certificate of my father; our joint-statement concerning the incident, and a police blotter. Atty. Reyes assured us that our affidavitcomplaint would be prepared by him at the soonest possible time. On March 17, 1998, at 12:00 noon, I paid Atty. Reyes [the] acceptance fee of P10,000.00. [I]n the evening of April 6, 1998, I handed to Atty. Reyes the Certification to File Action issued by the Barangay concerning our criminal complaint for slight physical injuries, slander by deed and threat against our aforementioned tormentors. I informed Atty. De los Reyes that a Certificate to File Action on the countercharges [filed by] our tormentors ha[d] likewise been issued by the Barangay. And [i]n the morning of April 10, 1998, Atty. Reyes informed me that he had already gone over the Certification to File Action. He forewarned and assured me: "Pagnauna silang magfile, kayo ng father mo ang maihahabla. Kayo ang makukulong. Pero huwag kang mag alala itataya ko ang profesyon ko para sayo." [I]n the morning of April 13, 1998, I telephoned Atty. Reyes and asked him if I and my father could already sign the affidavit-complaint against our tormentors so that it could be filed with the Quezon City Prosecutor's Office, but he told me that he has not yet prepared it. He assured me that he would work on it in the evening of said date. The following day at around 9:00 a.m. I followed up the matter thru his beeper, Atty. Reyes did not respond. At 8:30 p.m. of that date, I received a telephone call from Atty. Reyes. He told me that he had misplaced the Certification to File Action. Forthwith my father rushed to Atty. Reyes' residence and gave him a copy thereof. From April 15 to 19, 1998, I repeatedly followed up the preparation of our affidavit complaint thru beeper messages to Atty. Reyes, but he had inexplicably failed to respond. Finally, [i]n the morning on April 20, 1998, Atty. Reyes called up and informed me that he has not yet finished the affidavit-complaint, because his secretary did not report for work. Extremely disappoint[ed] by the delay in the preparation of our affidavit-complaint and the filing thereof with the Prosecutor's Office of Quezon City, I offered to do the typing for him, but Atty. Reyes said: "Huwag na, nakakahiya naman sa iyo. Pag report ng secretary ko, ipapatype ko at tatawagan ko kayo ng father mo. Pasensiya ka na ha!"

On April 21, 1998, at 5:00 p.m., Atty. Reyes met me at the house of my friend, Lily Jodloman, whose house is only across the street from ours. My friend Lily expressed grave concern about the unreasonable delay in the filing of our criminal complaint, and this time, Atty. Reyes gave another reason. He claimed that he was tasked by the IBP to monitor the coming national and local elections." He promised to finish our affidavit-complaint in the evening of that date and to personally file it with the Office of the Prosecutor of Quezon City. The following, (April 22, 1998), at 8:00 o'clock, I called up Atty. Reyes, but I was told by his wife that he had already left. I requested for a return call, which request I repeated several times thru his beeper, but to no avail. Finally at 11:00 p.m., Atty. Reyes called up and said, "Masama ang nangyari." And I retorted, " Ano bang masama ang nangyari? Nagawa na ho ba ninyo ang affidavit namin?" He sounded evasive in his reply and merely said, "a sige, Kit ha, magtawagan na lang tayo bukas kasi kadarating ko tang galing sa election meeting. O bukas tatawagan kita ha." But he did not call me the whole day of April 23, 1998. Neither did he call on April 24, 25, 26 and 27, 1998, despite repeated calls from me by telephone and by beeper messages. On April 28, 1998, at 10:30 p.m., Atty. Reyes at last called up. He said that his secretary did not report for work the previous days and he could not give me a feedback. He further said: " Naku Kit, sigurado na bukas, sasamahan ma ako bukas sa pagfile ha. Maghintay ka ng call ka sa hapon natin ipa-file." Because of this assurance by Atty. Reyes, I cancelled all my appointments on April 29, 1998 and waited the whole day for his call, but he never did. In response to my beeper message, he called up in the evening and explained that there was an emergency meeting called by LAKAS-NUCD that kept him busy the whole day. He again promised to finish our affidavit-complaint and file it in few days. On May 4, 1998, at around 9:30 a.m., I got the surprise of my life when I received a resolution from the Office of the City Prosecutor of Quezon City, finding probable cause concerning the supposed countercharges against us that were filed in the Barangay after we had filed ours, by our tormentors, Faye Maybelle J. Lorenz and Rosario M. Joaquin, for maltreatment, physical injuries and threats. I then realized that the countercharges of our tormentors against us were filed with the Quezon City Prosecutor's Office ahead of our complaint, which has yet to be filed with said office by our lawyer6 Respondent was unable to controvert the foregoing account. Instead, he claimed that he was hired by petitioner to file a case for partition, but, because the latter failed to give him the documents to be used in filing of the case, he decided to withdraw his representation. The Court finds respondent's explanation flimsy. His services were hired by petitioner six days after the occurrence of the incident giving rise to the filing of the charges and counter-charges for physical injuries, threats, and slander by deed filed by the parties before the Lupong Tagapamayapa of their barangay. It is improbable, therefore, that petitioner at that time would hire the services of respondent for a purpose other than in connection with petitioner's pressing legal concern, i.e., the filing of the criminal complaints with the prosecutor's office. Moreover, the Court cannot believe that petitioner merely made up a case of evasion of clear duty by respondent to hold the latter liable for professional misconduct. On the other hand, respondent could have easily submitted the affidavits of his wife and/or that of Lily Jodloman to controvert petitioner's claims had he had not taken his professional engagement seriously. Rule 18.03 of the Code of Professional Responsibility provides -

A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable. What this Court said in Santiago v. Fojas7 was totally lost on petitioner, to wit: 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.... [However,] 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. 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 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.... 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. Respondent's conduct in this case, exacerbated by his attempt to evade responsibility, falls short of what the law requires. The fact that, as claimed by him, he is a member of the IBP commission investigating complaints against members of the bar all the more should have impressed on him his duty of fidelity to his client's cause. That he returned the money paid to him does not diminish his responsibility but only mitigates the penalty. On the other hand, there is no merit in petitioner's claim that, as a result of respondent's failure to file the complaint for threats, prescription set in. Pursuant to Art. 90, in relation to Art. 283 of the Revised Penal Code, the prescriptive period for filing a complaint for threats is five years. In any event, the interests of petitioner and that of her father are not altogether without legal protection as they can controvert the charges against them in the proceedings before the trial court. WHEREFORE, the Integrated Bar of the Philippines' Resolution No. XIV-2000-460, dated July 29, 2000, is SET ASIDE and respondent Atty. Arturo de los Reyes is REPRIMANDED with warning to be henceforth more careful in the performance of his duty to his clients. SO ORDERED.
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Bellosillo, Quisumbing, Buena, De Leon, Jr., concur.

A.C. CBD No. 190 January 28, 1998 CORAZON T. REONTOY, complainant, vs. ATTY. LIBERATO R. IBADLIT, respondent. RESOLUTION

BELLOSILLO, J.: This is a complaint filed by Corazon T. Reontoy for the disbarment of her counsel, Atty. Liberato R. Ibadlit, for having been negligent in handling her case for partition, accounting and reconveyance then pending with the RTC-Br. 4, Kalibo, Aklan. 1 Respondent lawyer admits that he was the lawyer of complainant Corazon T. Reontoy in Civil Case No. 2805 which was decided by the RTC against his client. He likewise admits that he received copy of the adverse decision on 19 June 1989 and filed his notice of appeal only on 17 July 1989 when the expiry date to appeal was 4 July 1989. 2 Respondent alleges in his defense that after he received the adverse decision he immediately contacted complainant's brother Proculo Tomazar and requested the latter to inform complainant that they lost the case and that after going over the decision he (respondent) was convinced that appeal was futile. He also requested Proculo to tell complainant to communicate immediately with respondent if complainant disagreed with him on his position not to appeal the RTC decision anymore. Confident that Proculo had conveyed the message to complainant and having failed to receive any advice from her respondent intentionally did not file the corresponding notice of appeal. But after Proculo informed him later in his office that complainant wished to appeal the decision, he forthwith filed a notice of appeal, in the interest of justice, on 17 July 1989. The notice of appeal having been filed beyond the reglementary period, the trial court on 16 August 1989 denied the appeal and granted the Motion for Execution of Judgment of the prevailing parties. In the investigation conducted by the Integrated Bar of the Philippines, complainant presented her brother Proculo Tomazar to deny, as he did, that he was authorized by her to communicate with respondent regarding the case, claiming in fact that he had no knowledge whatsoever of subject civil case. 3 The testimony of Proculo Tomazar corroborated complainant's testimony that she had never authorized him to be her representative either to the court or to communicate with her counsel for the reason that Proculo was unlettered. Complainant further testified that when she went to see respondent in September 1989 to check on the status of her case the latter merely told her that the period to appeal had already elapsed and then returned the case records to her. We hold respondent administratively liable. Indeed it was his fault in not appealing within the reglementary period in the belief that appeal would be useless. It was highly improper for him to adopt such opinion without any clear instruction from his client not to appeal the adverse verdict. A lawyer owes entire devotion in protecting the interest of his client, warmth and zeal in the defense of his rights. He must use all his learning and ability to the end that nothing can be taken or withheld from his client except in accordance with the law. He must present every remedy or defense within the authority of the law in support of his client's cause, regardless of his own personal views. In the full discharge of his duties to his client, the lawyer should not be afraid of the possibility that he may displease the judge or the general public. 4 A lawyer has no authority to waive his client's right to appeal. His failure to perfect an appeal within the prescribed period constitutes negligence and malpractice proscribed by Rule 18.03, Canon 18, of the Code of Professional Responsibility which provides that "a lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable." 5

Had respondent filed the appeal on time he could have easily withdrawn the case later so that he could have the time to confer meticulously with his client and then decide whether to pursue the case to the appellate court; or, he could have withdrawn his services and advised complainant to look for another lawyer before the period to appeal lapsed to give his client a chance to ventilate her case on appeal. Respondent claims that he nonetheless filed a notice of appeal in the interest of justice. Notably, respondent filed the notice of appeal on 17 July 1989, or only after the period to appeal had already expired. The belated filing of the appeal cannot in any way mitigate respondent's liability; on the contrary, it would show ignorance on his part. As a lawyer, he ought to know that his notice of appeal, having been filed beyond the reglementary period, would surely be struck down for late filing. In sum, respondent utterly failed to perform his duties and responsibilities faithfully and well as to protect the rights and interests of his client. The record shows that complainant lost the case and suffered the corresponding loss of her real property in Kalibo, Aklan, consisting of her undivided share or interest in five (5) valuable parcels of land. Certainly, complainant paid dearly for respondent's ignorance, laxity, if not incompetence, by failing to appeal on time. WHEREFORE, respondent, Atty. Liberato R. Ibadlit, is SUSPENDED from the practice of law for one (1) year effective upon finality hereof. Let copies of this Resolution be furnished the Bar Confidant, the Integrated Bar of the Philippines and all courts throughout the country. SO ORDERED.

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