CANON 17 – CANON 20
(LEGAL ETHICS – PREFINALS)
ATTY. LOOD
75
A.C. No. 3745 October 2, 1995
CYNTHIA B. ROSACIA, complainant, vs. ATTY. BENJAMIN B. BULALACAO,
respondent.
Complainant Cynthia B. Rosacia, president of Tacma, Phils., Inc., a duly registered
corporation, filed a complaint for disbarment dated October 25, 1991, against
herein respondent Atty. Benjamin B. Bulalacao. Acting on the complaint, the Court
in a resolution dated February 24, 1992, resolved to refer the case to the Integrated
Bar of the Philippines (IBP) for investigation, report and recommendation.
Commissioner Victor C. Fernandez, the IBP investigating commissioner, found
that respondent breached his oath of office and accordingly recommended
respondent's suspension from the practice of law for three (3) months.1 In a
resolution dated July 30, 1994, the IBP Board of Governors resolved to adopt and
approve the commissioner's report and recommendation.2
On June 1, 1990, by virtue of a written Agreement (Exh. "3-a"), respondent Atty.
Benjamin B. Bulalacao was hired as retained counsel of a corporation by the name
of Tacma Phils., Inc.
On October 31, 1990, the lawyer-client relationship between the respondent and
Tacma Phils., Inc. was severed as shown by another agreement of even date (Exh.
"3-b". On July, 1991, or after almost nine (9) months from the date respondent's
retainer agreement with Tacma, Phils., Inc. was terminated, several employees of
the corporation consulted the respondent for the purpose of filing an action for
illegal dismissal. Thereafter, he agreed to handle the case for the said employees
as against Tacma, Phils., Inc. by filing a complaint before the National Labor
Relations Commission, and appearing in their behalf.
The sole issue to be addressed is whether or not respondent breached his oath of
office for representing the employees of his former client, Tacma, Phils., Inc., after
the termination of their attorney-client relationship. We agree with the findings of
the IBP that respondent breached his oath of office. Respondent does not now
dispute this. In fact, in his motion for reconsideration, respondent admitted that he
"did commit an act bordering on grave misconduct, if not outright violation of his
attorney's oath".4 However, respondent is pleading for the Court's compassion and
leniency to reduce the IBP recommended three months suspension to either fine
or admonition with the following proffered grounds: that he is relatively new in the
profession having been admitted to the Philippine Bar on April 10, 1990 at the age
of 46 when the complained conduct was committed on August 1991; that he is of
humble beginnings and his suspension will deprive his family of its only source of
livelihood he being the sole bread winner in the family; that he has fully realized
his mistake and the gravity of his offense for which he is fully repentant; that he
has severed his attorney-client relationship with the employees of Tacma, Phils.,
Inc. by inhibiting himself and withdrawing his appearance as counsel in the labor
case against Tacma, Phils., Inc.; and that he pledges not to commit the same
mistake and to henceforth strictly adhere to the professional standards set forth by
the Code of Professional Responsibility.
The Court reiterates that an attorney owes loyalty to his client not only in the case
in which he has represented him but also after the relation of attorney and client
has terminated as it is not good practice to permit him afterwards to defend in
another case other person against his former client under the pretext that the case
is distinct from, and independent of the former case.5 It behooves respondent not
only to keep inviolate the client's confidence, but also to avoid the appearance of
treachery and double dealing for only then can litigants be encouraged to entrust
their secrets to their attorneys which is of paramount importance in the
administration of justice.6 The relation of attorney and client is one of confidence
and trust in the highest degree.7 A lawyer owes fidelity to the cause of his client
and he ought to be mindful of the trust and confidence reposed in him.8 An attorney
not only becomes familiar with all the facts connected with his client's cause, but
also learns from his client the weak and strong points of the case. No opportunity
must be given attorneys to take advantage of the secrets of clients obtained while
the confidential relation of attorney and client exists. Otherwise, the legal
profession will suffer by the loss of the confidence of the people.9
Respondent's plea for leniency cannot be granted. We note that respondent is new
in the profession as he was just admitted to the Philippine Bar on April 10, 1990,
when the breach of his oath of office occurred more than a year after. Having just
hurdled the bar examinations which included an examination in legal ethics, surely
the precepts of the Code of Professional Responsibility to keep inviolate the client's
trust and confidence even after the attorney-client relation is terminated 10 must
have been still fresh in his mind. A lawyer starting to establish his stature in the
legal profession must start right and dutifully abide by the norms of conduct of the
profession. This will ineluctably redound to his benefit and to the upliftment of the
legal profession as well.
ACCORDINGLY, respondent is hereby SUSPENDED from the practice of law for
three months. Let this resolution be attached to respondent's record in the Office
of the Bar Confidant and copies thereof furnished to all courts and to the Integrated
Bar of the Philippines.
76
LORENZANA FOOD CORPORATION represented by Mr. SOLOMON U.
LORENZANA, JR., as its President and General Manager, and/or Mrs.
ELIZABETH L. DIAZ, as its Vice-President, petitioners,
vs. ATTY. FRANCISCO L. DARIA, respondent.
The respondent lawyer, Atty. Francisco L. Daria, is administratively charged1 on
two counts, to wit:
1. Negligence and
2. Betrayal of his former client's confidences.
A verified complaint dated February 22, 1985 was filed by Lorenzana Food
Corporation LFC, hereinafter), and received by the Court on February 25, 1985.2
The Court, on June 10, 1985, resolved to refer this case to the Office of the Solicitor
General for investigation, report, and recommendation.
After proper proceedings, the Office of the Solicitor General submitted its "Report
and Recommendation," dated February 21, 1990 and received by the Court on
February 26, 1990.
From the findings made by the Solicitor General, the pertinent facts may be
summarized as follows:
Respondent Francisco L. Daria is charged with negligence and
betrayal of his former client's confidences. The following facts are in
connection with the charge of negligence:
Respondent was hired by complainant Lorenzana Food Corporation
(LFC) on January 8, 1981 as its legal counsel and was designated as
its personnel manager six months later (tsn. pp. 6-7, Dec. 9, 1985). On
May 23, 1983, LFC employee, Violeta Hanopol, filed a complaint for
illegal dismissal and other monetary claims against complainant before
the Ministry (now Department) of Labor and Employment (MOLE). On
May 30, 1983, summons was served on the parties with the
requirement that position papers be submitted (Exh. G).
During the initial hearing on June 13, 1973 * (sic) Hanopol and
respondent tried to explore the possibility of an amicable settlement.
Since no agreement was reached the hearing was reset to June 17,
1983. On the pretext that Hanopol was supposed to go to his office on
that date respondent failed to appear for the second setting (tsn. pp.
14-15, Dec. 9, 1985). So, the Labor Arbiter was constrained to further
reset the hearing to June 28, 1983. Respondent received on June 23,
1983 the Order for the resetting to June 1983 (Exh. J).
In the meantime, on June 20, 1983, respondent received an Order in
another labor case, setting the hearing therein also on June 28, 1983
(Exh. H-6). Faced with a conflicting schedule, respondent decided to
move to postpone the hearing in the Hanopol case. However, instead
of filing a written motion for postponement, he opted to call, through
his secretary, the Office of the Labor Arbiter to move for postponement
(Exh. H-5; tsn. p. 16, Dec. 9, 1985). Respondent's telephone message
apparently failed to reach the Labor Arbiter, because at the hearing on
June 28, 1983, he considered the case submitted for decision on the
basis of Hanopol's complaint and affidavit (Exh. G-1). Respondent had
not submitted a position paper.
After a month, on July 29, 1983, the Labor Arbiter issued a Decision
directing LFC to pay Hanopol the total sum of P6,469.60 in labor
benefits, on the basis of Hanopol's evidence alone.
Respondent Daria appealed the Decision to the National Labor
Relations Commission (NLRC) on August 23, 1983 (Exh. 4). The case
was remanded to the Labor Arbiter for further proceedings. The case
was set for hearing on June 25, 1984 and July 12, 1984 wherein
attempts for an amicable settlement still proved futile. The Labor
Arbiter set two more dates for hearing: July 27, 1984 and August 8,
1984 (tsn. pp. 21-22, Dec. 9, 1985).
In the meantime, the middle of June 1984, respondent signified to
management his intention to resign. In the light of this development,
management hired Atty. Rogelio Udarbe to take his place on July 16,
1984, the effective date of his resignation (Exh. 2). Respondent
endorsed the cases of complainant to Atty. Udarbe (tsn. pp. 23-25,
Dec. 9, 1985).
During the hearings in the Hanopol case on July 27, 1984 and August
8, 1984, no one appeared for complainant.1avvphi1 So, on August 15,
1984, Hanopol filed a "Manifestation and Motion" praying that the
earlier Decision of the Labor Arbiter dated July 29, 1983 be revived.
(Exh. 5).
On September 1, 1984, Atty. Jose Loy, Jr. was hired by complainant
LFC vice Atty. Udarbe and he immediately came across the
abovementioned "Manifestation and Motion". On September 5, 1984,
he filed an Opposition (Exh. 6) thereto, and on September 19, 1984,
he followed this up with a position paper for LFC (Exh. 7). However,
the Labor Arbiter had already revived his earlier Decision dated July
29, 1983 in another Decision dated September 4, 1984, thereby
 prompting Atty. Loy to appeal the latter Decision (Exh. 3). In a
resolution dated May 9, 1985, the NLRC ordered anew the remand of
the case for further proceedings (Exh. 8).
In connection with the other charge of betrayal by respondent of his
former client's confidences, the following facts appear on record:
While respondent was still connected with complainant, its general
manager, Sebastian Cortes, issued a memorandum dated February
28, 1984 (Exh. C) to its employee, Roberto San Juan, requiring him to
submit a written explanation for his alleged double liquidation and
unliquidated cash advances. Another memorandum dated March 15,
1984 (Exh. D) was issued this time by complainant's internal auditor,
Rosario L. Bernardo, addressed to complainant's president, summing
up San Juan's unliquidated advances amounting to P9,351.15.
Respondent was furnished a copy of this memorandum (Exh. D-3).
The executive committee, to which respondent belongs, investigated
San Juan on his unliquidated advances. On account of the gravity of
the charge, respondent placed San Juan under preventive suspension,
per his letter to him dated April 25, 1984 (Exh. E).
On September 20, 1984, when respondent had already resigned,
complainant sent a demand letter to San Juan requiring him to restitute
the amount of P9,351.15 (Exh. N-2). Since he failed to pay the amount
demanded, a complaint for estafa was lodged against him before the
Office of the Provincial Fiscal. San Juan thereafter resigned and
sought the assistance of respondent in the preparation of his
counteraffidavit in January 1985 (tsn. p. 35, Nov. 5, 1985). Respondent
prepared San Juan's counteraffidavit and signed it (Exh. F). San Juan
then submitted his counteraffidavit to the Office of the Provincial Fiscal
(tsn. p. 42, Nov. 5, 1985).3
xxx xxx xxx
For failure to appear in two consecutive hearings and to submit a position paper in
the Hanopol case which resulted in complainant LFC's default and judgment
against it by the Labor Arbiter, the respondent is faulted for negligence. The
respondent avers that Hanopol should have seen him in his office to work out a
compromise agreement, on the scheduled day of the second hearing, June 17,
1983, but did not.4
It is the finding of the Solicitor General that this excuse by the respondent is not
borne by the Constancia5 setting the case for hearing. The Constancia clearly
states: "By agreement of the parties, case reset to June 17, 1983 at 2:00 p.m. as
previously scheduled."6 Since it was signed by both Hanopol and the respondent,
the Solicitor General argues that the respondent's explanation is manifestly
unsatisfactory.
With regard to his second non-appearance for the hearing on June 2, 1983, the
respondent justified his absence by claiming that he had another hearing on the
same date and that he told his secretary to call up the Office of the Labor Arbiter
to have the hearing of the Hanopol case postponed.7 The Solicitor General avers:
. . . It is submitted that respondent's actuation was not warranted by
the circumstances. As it turned out, the telephone request apparently
did not reach the Labor Arbiter, thereby constraining him to declare
complainant in default and render judgment against it.8
In an effort to extricate himself from this charge, the respondent submits that since
he was able to persuade the National Labor Relations Commission (NLRC) on
appeal to set aside the Decision of the Labor Arbiter and to remand the case for
further proceedings, then the charge of negligence should be considered moot and
academic already.9 We find this submission not meritorious. Instead, we agree
,with the position of the Solicitor General:
Respondent's plea is untenable. The setting aside of the adverse
Decision of the Labor Arbiter cannot obliterate the effects of
respondent's negligence. Indeed, had respondent attended the two
scheduled hearings and filed the required position paper, then at least,
there would have been no delay in the resolution of the case, which,
perhaps, would have been in favor of complainant. The delay, by itself,
was prejudicial to complainant because it deprived successor-counsel
Atty. Loy of time which he should be devoting to other cases of
complainant. In fact he had to prepare complainant's position paper
which respondent should have done earlier (Exh. 7).10
From the foregoing, it is manifest that the respondent is indeed guilty of negligence,
a clear violation of the Code of Professional Responsibility:11
CANON 18 — A LAWYER SHALL SERVE HIS CLIENT WITH
COMPETENCE AND DILIGENCE
Rule 18.03 — A lawyer shall not neglect a legal matter entrusted to him
and his negligence in connection therewith shall render him liable.
The other accusation against the respondent by the Solicitor General was that he
had betrayed complainant LFC's confidences in violation of the then Canon 37 of
the old Canons of Professional Ethics, to wit:
It is the duty of a lawyer to preserve his client's confidences. This duty
outlasts the lawyer's employment, and extends as well to his
employee's and neither of them should accept employment which
involves or may involve the disclosure or use of these confidences,
either for the private advantages of the client, without his knowledge
and consent, and even though there are other available sources of
such information. A lawyer should not continue employment when he
discovers that this obligation prevents the performance of his full duty
to his former or to his new client.
xxx xxx xxx
Superseded by the Code of Professional Responsibility, the appropriate Canon
now is:
CANON 17 — A LAWYER OWES FIDELITY TO THE CAUSE OF HIS
CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND
CONFIDENCE REPOSED IN HIM.
The Solicitor General further found that the respondent assisted Roberto San Juan
in the preparation of the counter-affidavit,12 submitted in defense of the latter in the
accusation of estafa filed against San Juan by LFC As a matter of fact, the
respondent signed the jurat of the San Juan counter-affidavit he (respondent)
helped prepare. It is also a fact that the respondent investigated this same charge
of estafa while he was still the lawyer of the complainant and San Juan still likewise
an employee of LFC
Again, we concur with the findings and evaluation of the Office of the Solicitor
General:
. . . Respondent, however, tried to extricate himself from his
predicament by testifying that the counteraffidavit was prepared by a
lawyer-friend, Atty. Joselito R. Enriquez, who had his (respondent's)
name typed on it; that after reading it, he called up Atty. Enriquez so
that he will delete his name and signature thereon; that he instructed
San Juan to bring the counteraffidavit to Atty. Enriquez so that he will
delete his name and signature, but San Juan did not obey him; and
that San Juan filed the counteraffidavit with the office of the Provincial
Fiscal with his name and signature still on it (tsn. pp. 47-51, Dec. 9,
1985).
It is submitted that, apart from being a mere afterthought, respondent's
explanation is incredible.1âwphi1 His foregoing testimony is not
reflected in his comment on the complaint . . .13
We are convinced that the respondent had betrayed the confidences of the
complainant, his former client.
. . . An attorney owes loyalty to his client not only in the case in which
he has represented him but also after the relation of attorney and client
has terminated, and it is not a good practice to permit him afterwards
to defend in another case other persons against his former client under
the pretext that the case is distinct from and independent of the former
case.14
WHEREFORE, premises considered, the respondent is found guilty of both the
charge of negligence, a transgression of Rule 18.03, Canon 18, and the charge of
betrayal of his former client's confidences, in violation of Canon 17 of the Code of
Professional Responsibility.
The respondent is hereby SUSPENDED from the practice of law for a period of six
(6) months.
Let this Decision be entered in the personal records of the respondent and copies
thereof furnished to all courts and IBP chapters.
SO ORDERED.
77
SPOUSES WILLIAM ADECER vs ATTY. EMMANUEL AKUT
Before the Court is a petition for disbarment filed by Spouses William and Teresita
Adecer (complainants) against Attorney Emmanuel A. Akut (respondent).
The instant petition is an offshoot of Criminal Case No. 72790 entitled People of
the Philippines v. William Adecer and Teresita Adecer in which complainants were
charged with committing a crime punishable under Article 318 of the Revised Penal
Code (Other Deceits), before the Municipal Trial Court in Cities, Cagayan de Oro,
Branch No.
On 25 March 1997, respondent received a copy of the MTCCs Decision[1] dated
12 March 1997 convicting complainants of Other Deceits and sentencing them to
the penalty of arresto mayor[2] and a fine of not less than P30,000.00.[3]
Complainants were also ordered to pay civil liability in the form of damages and
attorneys fees totaling P66,000.00 to the private respondents in the criminal
case.[4] On 26 March 1997, the Decision was promulgated in the absence of the
complainants, who were accorded due notice. Complainants received a copy of
the Decision via registered mail on 4 April 1997. Respondent received an additiona
Respondent had fifteen (15) days from 25 March 1997, or until 9 April 1997, to file
either an appeal[5] or a petition for probation[6] in behalf of the complainants.
However, it was only on 16 May 1997 over a month after the Decision had become
final and executory that respondent filed a Petition for Probation.
The MTCC issued a Writ of Execution On 19 May 1997. The next day, a warrant
of arrest was served on complainants[7] and they were incarcerated.[8]
On 28 May 1997, respondent filed a Memorandum in Support of the Petition for
Probation stating, [i]mmediately upon her receipt of a copy of the decision, accused
Teresita Adecer contacted [her] lawyer but [her] lawyer was out of town during that
time and so, while waiting for her lawyer to come home, she raised the required
amount necessary to pay the civil indemnity awarded in the decision.[9]
Respondent explained that complainant Teresita Adecer raised the money in the
belief that an application for probation would not be granted unless all monetary
2
awards are paid in full.[10] Respondent recounted that it was only on 16 May 1997,
when complainant Teresita approached him and handed to him the money for the
settlement of the civil liability, that he informed her that the application for probation
should have been filed within the period for appeal.
The Petition for Probation was denied through a Resolution dated 7 June 1997.
The MTCC held that the law does not permit the grant of probation after the lapse
of the period for filing an appeal.[11] With regard to respondents allegation that he
was out of town during the period for filing an appeal, the MTCC examined the
calendars of various courts and ascertained that respondent had scheduled and
attended hearings before several courts in Cagayan de Oro during said period.
This prompted the MTCC to comment, [t]he court does not know if defense counsel
suffered a sudden lack of vitamins to make him forget his duties towards his
clients.[12] It appears that complainants filed a Motion for Reconsideration with an
Atty. Rogelio Zosa Bagabuyo as pro bono counsel for the complainants.[13] The
motion was denied through a Resolution dated 30 June 1997.
The records also reflect that complainants filed a pleading entitled Urgent Omnibus
Motions to Recall Writ of Execution and for a Second Motion for Reconsideration
with Leave of Court dated 21 June 1997.[14] In answer to insinuations in said
pleading, respondent, as former counsel of the complainants, filed a Manifestation
dated 30 June 1997. He claimed therein that the complainants only had
themselves to blame for failing to file a timely petition for probation. Allegedly, the
complainants failed to comply with an agreement with respondent that they would
immediately go to respondents office to discuss the steps to be taken should they
receive an adverse decision. Respondent claimed that during the time
complainants desisted from approaching him, he could not make a choice in behalf
of the complainants between the remedy of appeal and the benefits of probation.
He recounted that complainants came to his office only on 9 May 1997, a month
after the decision had become final and executory, with money to pay for the civil
liability. He asked them to return the next day, but they returned only on 16 May
1997 after he sent somebody to fetch them on several occasion[s].[15]
On 29 July 1997, while serving their sentence at the Lumbia Detention and
Rehabilitation Center, complainants filed the instant administrative case praying
that respondent be disbarred and ordered to reimburse complainants of expenses,
with interest and damages.[16]
In his Comment dated 22 February 1998, respondent reiterated his account in the
Memorandum in Support of the Petition for Probation dated 28 May 1997 on why
a timely petition for probation was not filed. However, his explanation evolved
somewhat since the last time. This time, he stated that complainants deliberately
failed to meet with him seasonably for the signing of the verification of the Petition
for Probation.[17] On the MTCCs finding that respondent appeared before
Cagayan de Oro courts during the period to file an appeal, he retorted that he
moved for the postponement of most of these hearings and attended only the more
important ones.[18] He explained that he was out of his office most of the time
because starting February 1997, he and his wife were always out of town looking
for faith healers to cure the malignant brain tumor of his wife, who succumbed to
the cancer on 1 August 1997.[19] Allegedly, after attending the important hearings,
he immediately went out of town seeking faith healers.[20]
The instant case was referred by this Court to the Integrated Bar of the Philippines
(IBP) for investigation, report, and recommendation.[21] On 29 October 2003,
Commissioner Wilfredo E.J.E. Reyes filed a Manifestation before this Court
reporting that the records of the case were lost due to a carnapping incident.
On 7 November 2003, the records of the case were reconstituted. Stipulations
were made and the parties agreed that the case would be deemed submitted for
decision upon their filing of their respective Supplemental Position Papers.[22]
Furthermore, despite complainants several allusions to deceit on the part of
respondent, the parties agreed on a single issue for resolution, i.e., whether
respondent is administratively liable for a violating the principles of legal ethics and
the Code of Professional Responsibility in filing the Petition for Probation beyond
the reglementary period.[23]
In his Report and Recommendation dated 15 July 2005, Commissioner Reyes
found that respondent failed to exercise the proper diligence in dealing with the
case of his clients and recommended that respondent be suspended from the
practice of law for one (1) month and admonished henceforth to be more careful
in the performance of his duties to his clients. The IBP Board of Governors resolved
to adopt and approve the findings of Commissioner Reyes with the modification
that respondent instead be suspended for six (6) months. The case is now on
review by this Court pursuant to Section 12 (b), Rule 139-B of the Revised Rules
of Court.
We affirm the findings of the Investigating Commissioner and adopt the
recommendation of the Board of Governors.
The Code of Professional Responsibility mandates that a lawyer shall serve his
client with competence and diligence.[25] He shall not handle any legal matter
without adequate preparation.[26] Nor shall he neglect a legal matter entrusted to
him; his negligence in connection therewith shall render him liable.[27]
Respondent is bound by the representations he made in his Memorandum in
Support of the Petition for Probation, i.e., that a timely petition for probation was
not filed due to the fact that he was out of town and that complainants were laboring
under the misapprehension that the civil liability must be paid in full before
probation could be availed of. Either of his two explanations is enough ground to
render him liable for negligence under the Code of Professional Conduct. First,
despite his receipt of a copy of the Decision and the consequent running of the
fifteen (15)-day period to file a petition for probation, respondent went out of town
without contacting complainants to give them proper legal advice. Furthermore, his
admission that complainants were [1] under the impression that they first had to
pay off their civil liabilities prior to filing a petition for probation and [2] unaware that
they had only fifteen (15) days from their counsels receipt of a copy of the decision
to file their petition, proves that he failed to give complainants timely legal advise.
We consider first the implications of respondents allegation that he was out of town
as his justification to the MTCC for failing to file a timely petition.
At the outset, it must be remembered that respondent was given a copy of the
Decision while he was in town. Surely, he could have addressed his clients need
during that time. At the very least, he should have made room in his schedule to
confer with complainants on what course of action to take in furtherance of their
cause and to prepare the necessary legal moves toward such end.
Furthermore, respondent was not away for the entirety of the crucial period and
could have attended to his clients needs during the instances he was in Cagayan
de Oro. And even if respondent had left town during the entire fifteen (15)-day
period, in this age of cellular phones, long distance telephone accessibility, and
even overnight mail delivery, it is highly unlikely that respondent would not be able
to attend to his clients needs were he so inclined. He could at least have found a
way to speak to his clients to inform them regarding the short window within which
to file their petition. He could even have prepared a petition and mailed the same
to his clients in order that they could sign it and themselves file it in court; or as
intimated by the MTCC, he could have filed a motion for extension of time to file a
petition for probation.[28]
There are many ways to provide proper representation for his clients and many
things which respondent could have done that would give this Court the impression
that he had the least bit of concern for his clients cause. But nothing of the sort
was presented by respondent. Since he is primarily responsible for filing the vital
pleading that would have made possible for his clients to avail of probation, we find
that respondents omission is a culpable act of negligence for which he must be
held liable.
Furthermore, when the MTCC decided to take judicial notice of his scheduled
hearings within Cagayan de Oro to expose his lie, respondent explained that he
was in town to attend some of the more important hearings but was out of town
most of the time. Aside from the fact that respondent had attempted to deceive the
court by initially stating without qualification that he was out of town, he later on
uttered words which reveal his notion that some of his cases were more important,
and therefore, given more immediate attention than others. Every case a lawyer
accepts deserves his full attention, skill and competence, regardless of his
impression that one case or hearing is more important than the other.[29]
Respondent has attached a death certificate showing that his wife died from
cardiac arrest close to the period in question. We commiserate with respondent for
the loss of his wife, and appreciate fully that during the period of a mans existence
when the sense of mortality and loss is most closely felt more then ever, it would
appear that no responsibility is more important than tending to loved ones.
However, such is the lawyers charge that no personal consideration should stand
in the way of performing a legal duty.[30] In these situations, it is only fair that a
lawyer should lighten his case load lest he prejudice his clients cases.
We have held that the failure of an attorney to file a timely motion for
reconsideration or an appeal renders him liable for negligence under the Code of
Professional Responsibility.[31] In the instant case, the negligence exhibited by
the respondent is made more grievous by the fact that the Decision to be acted
upon is one that subjects his clients to incarceration. The liberty of ones clients is
not to be taken lightly, whether the sentence is for destierro or reclusion perpetua.
Litigants entrust their properties, liberties, and even lives, in the hands of their
lawyers, who must protect these values with utmost zeal and vigilance.
What compounds respondents negligence is his indifference to complainants
plight. He abruptly dismissed his failure to communicate with complainants by
stating that, even if [complainants] house is near respondents office, yet
3
respondent does not know [where] their house [is] as he ha[s] never gone to said
house. It has never been the practice of respondent to visit his clients in their home.
It must be the client who must go to him.
Respondents choice to be oblivious to his clients place of residence is his
prerogative. This, however, neither excuses nor explains why he was unable to
contact his clients by telephone or cellular phone to properly advise them of their
legal options. Furthermore, in adopting this style of dealing with clients, respondent
takes the obvious risk of being incapable of contacting his clients during crucial
periods. He should, thus, be prepared to be held in the event that his manner of
dealing with clients results in the latters being deprived of remedies to which they
would otherwise be entitled, for it is the duty of an attorney to advise his client
promptly whenever he has any information which is important that the client
receive.[33]
To cover his own inattention, respondent even blamed his clients for their
ignorance by stating that they were under the wrong impression that the civil
liability should be paid in full before they could ask for probation. The laymens lack
of knowledge of substantive and procedural law is the exact reason why they hire
the services of counsel. It was counsels responsibility to look after the welfare of
his clients by communicating with them to determine whether they would take the
avenue of an appeal or a petition for probation and to thereafter prepare and file
the relevant pleading.
We note the IBP Investigating Commissioners observation that complainants
themselves did not show much interest in their own case. Indeed, complainants
did not attend hearings of their case; the decision was promulgated in their
absence; during trial, complainants were thrice ordered arrested for their failure to
attend hearings; thrice, too, respondent had to file a motion for reconsideration of
the orders of arrest. It is true that the client must, with regard to his case, exercise
that standard of case which an ordinary prudent man bestows upon his important
business.[34] However, complainants lackadaisical attitude is relevant only with
regard to the binding effect upon them of the lapse of the fifteen (15)-day period
and their loss of the fight to file the petition for probation. The instant administrative
proceeding concerns respondents omission, not those of his clients.
The lawyer should serve his client in a conscientious, diligent and efficient manner
and he should provide a quality of services at least equal to that which lawyers
generally would expect of a competent lawyer in the like situation.[35] By agreeing
to be his clients counsel, he represents that he will exercise ordinary diligence or
that reasonable degree of care and skill having reference to the character of the
business he undertakes to do, to protect the clients interests and take all steps or
do all acts necessary therefor, and his client may reasonably expect him to
discharge his obligations diligently.[36] Respondent has failed to measure up to
his oath.
WHEREFORE, the petition is GRANTED. Atty. Emmanuel A. Akut is hereby
SUSPENDED from the practice of law for six (6) months and ADMONISHED
henceforth to be more circumspect in the performance of his duties to his clients,
with the caveat that commission of the same or similar offense will be dealt with
more severely.
78
CESARIO ADARNE, complainant, vs. ATTY. DAMIAN V. ALDABA, respondent.
Administrative action against the respondent attorney for gross negligence and
misconduct, for failure to give his entire devotion to the interest of his client, warm
zeal in the . maintenance and defense of his rights, and exertion of his utmost
learning and ability in the prosecution and defense of his client, and for not taking
steps to protect the interests of his client in the face of an adverse decision.
The record shows that sometime in 1958, Raymunda Cumpio and her husband,
Rufo Cumpio, filed an action for forcible entry against herein complaint Cesario
Adarne, Aning Arante, and Miguel Inokando with the Justice of the Peace of Alang-
alang Leyte. The case was docketed in the said court as Civil Case No. 96. Atty.
Isauro Marmita represented the defendants who raised the issue of ownership of
the land in question. After hearing the parties, the Justice of the Peace dismissed
the complaint for lack of jurisdiction. Consequently, the plaintiffs therein appealed
to the Court of First Instance of Leyte and the case was assigned to Branch VI of
Carigara, where it was docketed as Civil Case No. 556. Resolving the issue
interposed by the appellants, the Judge of the Court of First Instance found that
the Justice of the Peace Court has jurisdiction over the case and returned the same
to the lower court for trial on the merits. After trial on the merits, the Justice of the
Peace again dismissed the case and the plaintiffs again appealed to the Court of
First Instance of Leyte where the case was docketed anew as Civil Case No, 632.
Attys. Arturo Mirales and Generoso Casimpan filed the answer for the defendants.
At the hearing of the case on August 7, 1961, the herein complainant Cesario
Adarne, one of the defendants in the aforementioned Civil Case No. 632, noting
that his attorneys had not yet arrived, prevailed upon the respondent Atty. Damian
Aldaba, who was then present in court to attend the trial of an electoral case, to
appear as counsel for them and ask for the Postponement of the trial. The
respondent, who is a third degree cousin of the complainant, agreed, and entered
a special appearance. Upon noticing that the plaintiffs and their counsel were not
also present in court, the respondent, instead of asking for a postponement, moved
for the dismissal of the case. "is motion was granted and the case was again
dismissed. Thereafter, the plaintiff filed a motion for the reconsideration of the
order, 2 to which the respondent filed an opposition in behalf of the defendants, 3
and the motion was denied. 4 Whereupon, the plaintiffs appealed to the Court of
Appeals. After appropriate. proceedings, the appellee court set aside the order of
dismissal and remanded the case to the lower court for further proceedings.
At the hearing of the case on October 23, 1964 before the Court of First Instance
of Leyte, the respondent was again prevailed upon by the complainant to appear
in his behalf. The respondent entered a "special appearance" for the complainant
and thereafter argued that the interest of justice would best be served of the
defendants were allowed to file an action for quieting of title and the case heard
jointly with the pending action for forcible entry. Finding merit in the argument, the
court ordered the defendant Cesario Adarne to file an action for quieting of title
within one (1) week and the plaintiffs to answer the same within the reglementary
period, after which both cases would be tried jointly. The hearing was deferred until
after the filing of the action for quieting of title. 5
On June 17, 1965, the court declared the defendants in default for their failure to
appeal at the hearing set for that day and directed the plaintiffs to present evidence
to support their claim. 6 On September 17, 1965, the court rendered a decision
and a writ of execution was issued thereafter. 7
Because of this, Cesario Adarne filed the present complaint against the respondent
Atty. Damian V. Aldaba on August 3, 1967, praying:
Dahil dito, isinusumbong ko po ang aking Abogado ng "Mal practice" pabaya at
pahamak sa kliente at sinisingil ko po siya ng pinsala katumbas sa sinisingil sa kin
ng akin kalaban. O kaya lakarin niya na mapigil and decision ng Hukom sa C.F.I.
at ulitin and hearing sa Forcible Entry. Kung hindi niya magagawa ito, ipinauubaya
ko na po sa kataas taasan Hukoman and paglapat ng parusa. Sapagkat kung hindi
p susugpo-in and masamang gawa naito ng mga ibang abogado na nabibili, —
lalala and sakit naito sa profession ng mga abogado, at lilikha ng maraming api, at
habang naghahari and pang-aapi, lalaganap and kriminalidad ng walang tigil, at
walang katahimikan ang ating Demukrasya, at kung magkakagayon ang mga
mamamayan at — sapilitan sa kumunista sasamba.
The respondent denied that he ever had any agreement with the complainant with
respect to the handling of the latter's case in the Court of First Instance of Leyte,
Carigara Branch, except for the "special appearance" that he entered for the
complainant on August 7, 1961 and October 23, 1964, in view of the non-
availability of the complainant's lawyers on said dates.
The case referred to the Solicitor General for investigation, report and
recommendation, 8 after which a complaint for the disbarment of the respondent
attorney was filed. 9
The judgment by default rendered against the complainant cannot be attributed to
the respondent attorney. The blame lies with the complainant for having engaged
the services of several lawyers to handle his case without formally withdrawing the
authority he had given to them to appear in his behalf as to place the responsibility
upon the respondent. To add to the confusion, the complainant had also requested
the clerk of court of the Court of First Instance of Leyte that he (complainant) be
furnished with summons and subpoena accorded to him. 10 He also filed a motion
by himself, 11 thus implying that he was handling his case personally.
It appears that there have been three changes made of the attorneys for the
complainant in the forcible entry case. The complainant was originally represented
by Atty. Isauro Marmita who, upon his appointment to the Department of Labor,
engaged Atty. de Veyra to take his place. 12 Then came Atty. Arturo Mirales and
later, Atty. Generoso Casimpan. However, no formalities whatever were observed
in those changes such that the respondent entered a "special appearance" for the
complainant in order that he could ask for the dismissal of the case for the failure
of the adverse party to prosecute. The rule followed on matters of substitution of
attorneys as laid down by this Court is that no substitution of attorneys will be
allowed unless there be filed: (1) a written application for such substitution; (2) the
written consent of the client; (3) the written consent of the attorney substituted; and
(4) in case such written consent can not be secured, there must be filed with the
application proof of service of notice of such motion upon the attorney to be
substituted, in the manner prescribed by the rules. Unless the foregoing formalities
4
are complied with, substitution will not be permitted, and the attorney who properly
appeared last in the cause, before such application for substitution, will be
regarded as the attorney of record and will be held responsible for the proper
conduct of the cause. 13
Besides, the respondent honestly believed that he had appeared for the
complainant only for a special purpose and that the complainant had agreed to
contact his attorney of record to handle his case after the hearing of October 23,
1964, so that he did nothing more about it. 14 It was neither gross negligence nor
omission to have entertained such belief. An attorney is not bound to exercise
extraordinary diligence, but only a reasonable degree of care and skill, having
reference to the character of the business he undertakes to do. Prone to err like
any other human being, he is not answerable for every error or mistake, and will
be protected as long as he acts honestly and in good faith to the best of his skill
and knowledge.
It is well settled that 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 attorney must be established by convincing proof. In the instant
case, there is no sufficient proof to warrant the disbarment of the respondent
attorney. Neither is there culpable malpractice to justify his suspension.
WHEREFORE, the present administrative complaint is hereby DISMISSED.
79
CARLOS B. REYES, complainant, vs. ATTY. JEREMIAS R. VITAN,
respondent.
A lawyer shall serve his client with competence and diligence[1] and never neglect
a legal matter entrusted to him and his negligence in connection therewith shall
render him liable. Indeed, it is his sworn duty not to delay no man for money or
malice; and to conduct himself in a proper manner not only to his client, but also
to the court, the legal profession and society at large.[2]
This is an administrative complaint for disbarment filed by Carlos Reyes against
Atty. Jeremias Vitan for gross negligence.
The complaint alleges that sometime in June 2001, complainant Carlos Reyes
hired the services of respondent Atty. Jeremias Vitan for the purpose of filing the
appropriate complaint or charge against his sister-in-law, Estelita Reyes, and the
latters niece, Julieta P. Alegonza; that both women refused to abide with the
Decision of Judge Juan C. Nabong, Jr., of the Regional Trial Court, Branch 32,
Manila, in Civil Case No. 99-92657 ordering the partition of the properties left by
complainants brother Damaso B. Reyes; and that respondent, after receiving the
amount of P17,000.00, did not take any action on complainants case.
We referred the complaint to the Integrated Bar of the Philippines for investigation,
report and recommendation. IBP Commissioner Lydia A. Navarro issued several
orders to respondent directing him to file his answer to the complaint, but he failed
to do so. He only sent his secretary to represent him during the proceedings.
On April 18, 2001,[3] IBP Commissioner Navarro submitted to the IBP Board of
Governors her Report and Recommendation quoted as follows:
x x x. After going over the evidence on record, the undersigned noted that
respondent ignored all the Orders issued by this Commission and neither did he
comply with any of those Orders. Respondent even failed to submit the responsive
pleadings he himself requested in his motion and only sent his assistant secretary
to represent him in the scheduled hearings of this case. Up to and until the present,
no pleadings was submitted despite respondents allegations that he was collating
evidence to prove his side of the case.
It was complainant who submitted the supposed letters of the respondent Estelita
Reyes and Juliet Alegonza but there were no proofs when they sent and when the
same were received by the addressee.
Likewise, the complaint submitted by the complainant was only a format in the
sense that it was not signed by the respondent; the RTC Branch No. was left blank;
there was no Civil Case No. and there was no proof that said pleading was filed
which amounts only to a mere scrap of paper and not a pleading or authenticated
document in the legal parlance.
As it is, nothing had been done by the respondent for the complainant as his client
for the legal fees he collected which was paid by the complainant as reflected in
the receipts issued by the respondent in handwritten forms and signed by him.
Respondent not only violated Rule 18.03 and 18.04 of Cannon 18 of the Code of
Professional Responsibility for having neglected a legal matter entrusted to him
and did not inform complainant the status of his case but also disregarded the
orders of the Commission without reasons which amounted to utter disrespect of
authority and unethical conduct in the practice of his profession, thus, should be
sanctioned.
Wherefore, in view of the foregoing, the undersigned respectfully recommends that
the respondent be suspended from the practice of his profession for a period of
two (2) years from receipt hereof; and refund to the complainant the amount of
P17,000.00 paid to him for not having extended his legal services to the
complainant on a lawyer-client relationship within six (6) months from receipt
hereof.
On August 3, 2002, the IBP Board of Governors passed Resolution No. XV-2002-
406 adopting and approving the above Report and Recommendation of IBP
Commissioner Navarro.
When respondent accepted the amount of P17,000.00 from complainant, it was
understood that he agreed to take up the latters case and that an attorney-client
relationship between them was established. From then on, it was expected of him
to serve his client, herein complainant, with competence and attend to his cause
with fidelity, care and devotion.
The act of receiving money as acceptance fee for legal services in handling
complainants case and subsequently failing to render such services is a clear
violation of Canon 18 of the Code of Professional Responsibility which provides
that a lawyer shall serve his client with competence and diligence. More
specifically, Rule 18.03 states:
Rule 18.03. A lawyer shall not neglect a legal matter entrusted to him, and his
negligence in connection therewith shall render him liable.
A member of the legal profession owes his client entire devotion to his genuine
interest, warm zeal in the maintenance and defense of his rights.[4] An attorney is
expected to exert his best efforts and ability to preserve his clients cause, for the
unwavering loyalty displayed to his client likewise serves the ends of justice. Verily,
the entrusted privilege to practice law carries with it the corresponding duties, not
only to the client, but also to the court, to the bar and to the public.
In Santos vs. Lazaro,[5] we held that Rule 18.03 of the Code of Professional
Responsibility, above-quoted, is a basic postulate in legal ethics. Indeed, when a
lawyer takes a clients cause, he covenants that he will exercise due diligence in
protecting his rights. The failure to exercise that degree of vigilance and attention
expected of a good father of a family makes such lawyer unworthy of the trust
reposed in him by his client and makes him answerable not just to his client but
also to the legal profession, the courts and society.[6]
Significantly, respondent also violated his oath as a lawyer, which declares in part,
that he will not delay any man for money or malice and will conduct himself as a
lawyer according to the best of his knowledge and discretion, with all good fidelity
as well to the courts as to his client.
However, the recommended penalty by the IBP is too harsh. Jurisprudence shows
that lighter sanctions have been imposed for violations of this nature, taking into
consideration the gravity of the offense and the necessity of preserving the integrity
of the legal profession.
The facts of Sencio vs. Calvadores[7] bear a striking similarity to the present case.
Respondent lawyer in Sencio did not return the money to complainant despite
demand following his failure to file the case. During the proceedings before the
IBP, respondent did not file his answer to the complaint nor appeared during the
hearing notwithstanding his receipt of notices. We found him guilty of violation of
the lawyers oath, malpractice and gross misconduct and suspended him for six (6)
months, and ordered to return to his client the amount of P12,000.00 with interest
at 12% per annum from the date of the promulgation of our Resolution until the
return of the amount.
In Garcia vs. Manuel,[8] we suspended respondent lawyer from the practice of law
for six (6) months and ordered him to render an accounting of all monies he
received from the complainant. We found him guilty of gross misconduct.
WHEREFORE, respondent Atty. Jeremias R. Vitan is hereby declared guilty of
violation of Canon 18 of the Code of Professional Responsibility and is
SUSPENDED from the practice of law for a period of six (6) months effective upon
notice of this Decision. He is ordered to return to complainant within five (5) days
from notice the sum of P17,000.00 with interest of 12% per annum from the date
of the promulgation of this Decision until the full amount shall have been returned.
5
Let a copy of this Decision be furnished the Court Administrator for distribution to
all courts of the land, the IBP, the Office of the Bar Confidant, and entered into
respondents personal records as an attorney and as a member of the Philippine
Bar.
SO ORDERED.
80
VERONICA S. SANTIAGO, BENJAMIN Q. HONTIVEROS, MR. SOCORRO F.
MANAS, and TRINIDAD NORDISTA, complainants,
vs. ATTY. AMADO R. FOJAS, respondent.
In their letter of 8 September 1993, the complainants, former clients of the
respondent, pray that the latter be disbarred for "malpractice, neglect and other
offenses which may be discovered during the actual investigation of this
complaint." They attached thereto an Affidavit of Merit wherein they specifically
allege:
1. That we are Defendants-Appellates [sic] in the Court of Appeals Case
No. CA-G.N. CV No. 38153 of which to our surprise lost unnecessarily the
aforesaid Petition [sic]. A close perusal of the case reveals the serious misconduct
of our attorney on record, Atty. Amado Fojas tantamount to malpractice and
negligence in the performance of his duty obligation to us, to defend us in the
aforesaid case. That the said attorney without informing us the reason why and
riding high on the trust and confidence we repose on him either abandoned, failed
to act accordingly, or seriously neglected to answer the civil complaint against us
in the sala of Judge Teresita Capulong Case No. 3526-V-91 Val. Metro Manila so
that we were deduced [sic] in default.
2. That under false pretenses Atty. Fojas assured us that everything was
in order. That he had already answered the complaint so that in spite of the
incessant demand for him to give us a copy he continued to deny same to us. Only
to disclose later that he never answered it after all because according to him he
was a very busy man. Please refer to Court of Appeals decision dated August 17,
1993.
3. That because of Atty. Amado Foja's neglect and malpractice of law we
lost the Judge Capulong case and our appeal to the Court of Appeals. So that it is
only proper that Atty. Fojas be disciplined and disbarred in the practice of his
profession.
In his Comment, the respondent admits his "mistake" in failing to file the
complainants' answer in Civil Case No. 3526-V-91, but he alleges that it was cured
by his filing of a motion for reconsideration, which was unfortunately denied by the
court. He asserts that Civil Case No. 3526-V-91 was a "losing cause" for the
complainants because it was based on the expulsion of the plaintiff therein from
the Far Eastern University Faculty Association (FEUFA) which was declared
unlawful in the final decision in NCR-OD-M-90-10-050. Thus, "[t]he unfavorable
judgment in the Regional Trial Court is not imputable to [his] mistake but rather
imputable to the merits of the case, i.e., the decision in the Expulsion case wherein
defendants (complainants herein) illegally removed from the union (FEUFA)
membership Mr. Paulino Salvador. . . ." He further claims that the complainants
filed this case to harass him because he refused to share his attorney's fees in the
main labor case he had handled for them. The respondent then prays for the
dismissal of this complaint for utter lack of merit, since his failure to file the answer
was cured and, even granting for the sake of argument that such failure amounted
to negligence, it cannot warrant his disbarment or suspension from the practice of
the law profession.
The complainants filed a Reply to the respondent's Comment.
Issues having been joined, we required the parties to inform us whether they were
willing to submit this case for decision on the basis of the pleadings they have filed.
In their separate compliance, both manifested in the affirmative.
The facts in this case are not disputed.
Complainants Veronica Santiago, Benjamin Hontiveros, Ma. Socorro Manas, and
Trinidad Nordista were the President, Vice-President, Treasurer, and Auditor,
respectively, of the FEUFA. They allegedly expelled from the union Paulino
Salvador. The latter then commenced with the Department of Labor and
Employment (DOLE) a complaint (NCR-OD-M-90-10-050) to declare illegal his
expulsion from the union.
In his resolution of 22 November 1990, Med-Arbiter Tomas Falconitin declared
illegal Salvador's expulsion and directed the union and all its officers to reinstate
Salvador's name in the roll of union members with all the rights and privileges
appurtenant thereto. This resolution was affirmed in toto by the Secretary of Labor
and Employment.
Subsequently, Paulino Salvador filed with the Regional Trial Court (RTC) of
Valenzuela, Metro Manila, Branch 172, a complaint against the complainants
herein for actual, moral, and exemplary damages and attorney's fees, under
Articles 19, 20, and 21 of the Civil Code. The case was docketed as Civil Case No.
3526-V-91.
As the complainants' counsel, the respondent filed a motion to dismiss the said
case on grounds of (1) res judicata by virtue of the final decision of the Med-Arbiter
in NCR-OD-M-90-10-050 and (2) lack of jurisdiction, since what was involved was
an intra-union issue cognizable by the DOLE. Later, he filed a supplemental motion
to dismiss.
The trial court, per Judge Teresita Dizon-Capulong, granted the motion and
ordered the dismissal of the case. Upon Salvador's motion for reconsideration,
however, it reconsidered the order of dismissal, reinstated the case, and required
the complainants herein to file their answer within a nonextendible period of fifteen
days from notice.
Instead of filing an answer, the respondent filed a motion for reconsideration and
dismissal of the case. This motion having been denied, the respondent filed with
this Court a petition for certiorari, which was later referred to the Court of Appeals
and docketed therein as CA-G.R. SP No. 25834.
Although that petition and his subsequent motion for reconsideration were both
denied, the respondent still did not file the complainants' answer in Civil Case No.
3526-V-91. Hence, upon plaintiff Salvador's motion, the complainants were
declared in default, and Salvador was authorized to present his evidence ex-parte.
The respondent then filed a motion to set aside the order of default and to stop the
ex-parte reception of evidence before the Clerk of Court, but to no avail.
Thereafter, the trial court rendered a decision ordering the complainants herein to
pay, jointly and severally, plaintiff Salvador the amounts of P200,000.00 as moral
damages; P50,000.00 as exemplary damages or corrective damages; and
P65,000.00 as attorney's fees; plus cost of suit.
The complainants, still assisted by the respondent, elevated the case to the Court
of Appeals, which, however, affirmed in toto the decision of the trial court.
The respondent asserts that he was about to appeal the said decision to this Court,
but his services as counsel for the complainants and for the union were illegally
and unilaterally terminated by complainant Veronica Santiago.
The core issue that presents itself is whether the respondent committed culpable
negligence, as would warrant disciplinary action, in failing to file for the
complainants an answer in Civil Case No. 3526-V-91 for which reason the latter
were declared in default and judgment was rendered against them on the basis of
the plaintiff's evidence, which was received ex-parte.
It is axiomatic that no lawyer is obliged to act either as adviser or advocate for
every person who may wish to become his client. He has the right to decline
employment,1 subject, however, to Canon 14 of the Code of Professional
Responsibility. Once he agrees to take up the cause of a client, the lawyer owes
fidelity to such cause and must always be mindful of the trust and confidence
reposed in him.2 He must serve the client with competence and diligence,3 and
champion the latter's cause with wholehearted fidelity, care, and devotion.4
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.5 This simply means that his client is
entitled to the benefit of any and every remedy and defense that is authorized by
the law of the land and he may expect his lawyer to assert every such remedy or
defense.6 If much is demanded from an attorney, it is because the entrusted
privilege to practice law carries with it the correlative duties not only to the client
but also to the court, to the bar, and to the public. A lawyer who performs his duty
with diligence and candor not only protects the interest of his client; he also serves
the ends of justice, does honor to the bar, and helps maintain the respect of the
community to the legal profession. 7
The respondent admits that it was his duty to file an answer in Civil Case No. 3526-
V-91. He justifies his failure to do so in this wise:
6
[I]n his overzealousness to question the Denial Order of the trial court, 8 [he]
instead, thru honest mistake and excusable neglect, filed a PETITION FOR
CERTIORARI with the Honorable Court, docketed as G.R. No. 100983. . . .
And, when the Court of Appeals, to which G.R. No. 100983 was referred,
dismissed the petition, he again "inadvertently" failed to file an answer "[d]ue to
honest mistake and because of his overzealousness as stated earlier. . . . "
In their Reply, the complainants allege that his failure to file an answer was not an
honest mistake but was "deliberate, malicious and calculated to place them on the
legal disadvantage, to their damage and prejudice" for, as admitted by him in his
motion to set aside the order of default, his failure to do so was "due to volume and
pressure of legal work."9 In short, the complainants want to impress upon this
Court that the respondent has given inconsistent reasons to justify his failure to file
an answer.
We agree with the complainants. In his motion for reconsideration of the default
order, the respondent explained his non-filing of the required answer by impliedly
invoking forgetfulness occasioned by a large volume and pressure of legal work,
while in his Comment in this case he attributes it to honest mistake and excusable
neglect due to his overzealousness to question the denial order of the trial court.
Certainly, "overzealousness" on the one hand and "volume and pressure of legal
work" on the other are two distinct and separate causes or grounds. The first
presupposes the respondent's full and continuing awareness of his duty to file an
answer which, nevertheless, he subordinated to his conviction that the trial court
had committed a reversible error or grave abuse of discretion in issuing an order
reconsidering its previous order of dismissal of Salvador's complaint and in
denying the motion to reconsider the said order. The second ground is purely
based on forgetfulness because of his other commitments.
Whether it be the first or the second ground, the fact remains that the respondent
did not comply with his duty to file an answer in Civil Case No. 3526-V-91. His lack
of diligence was compounded by his erroneous belief that the trial court committed
such error or grave abuse of discretion and by his continued refusal to file an
answer even after he received the Court of Appeals' decision in the certiorari case.
There is no showing whatsoever that he further assailed the said decision before
this Court in a petition for review under Rule 45 of the Rules of Court to prove his
claim of overzealousness to challenge the trial court's order. Neither was it shown
that he alleged in his motion to lift the order of default that the complainants had a
meritorious defense. 10 And, in his appeal from the judgment by default, he did not
even raise as one of the errors of the trial court either the impropriety of the order
of default or the court's grave abuse of discretion in denying his motion to lift that
order.
Pressure and large volume of legal work provide no excuse for the respondent's
inability to exercise due diligence in the performance of his duty to file an answer.
Every case a lawyer accepts deserves his full attention, diligence, skill, and
competence, regardless of its importance and whether he accepts it for a fee or
for free.
All told, the respondent committed a breach of Canon 18 of the Code of
Professional Responsibility which requires him to serve his clients, the
complainants herein, with diligence and, more specifically, Rule 18.03 thereof
which provides: "A lawyer shall not neglect a legal matter entrusted to him, and his
negligence in connection therewith shall render him liable."
The respondent's negligence is not excused by his claim that Civil Case No. 3526-
V-91 was in fact a "losing cause" for the complainants since the claims therein for
damages were based on the final decision of the Med-Arbiter declaring the
complainants' act of expelling Salvador from the union to be illegal. This claim is a
mere afterthought which hardly persuades us. If indeed the respondent was so
convinced of the futility of any defense therein, he should have seasonably
informed the complainants thereof. Rule 15.05, Canon 15 of the Code of
Professional Responsibility expressly provides:
A lawyer, when advising his client, shall give a candid and honest opinion on the
merits and probable results of the client's case, neither overstating nor
understanding the prospects of the case.
Then too, if he were unconvinced of any defense, we are unable to understand
why he took all the trouble of filing a motion to dismiss on the grounds of res
judicata and lack of jurisdiction and of questioning the adverse ruling thereon
initially with this Court and then with the Court of Appeals, unless, of course, he
meant all of these to simply delay the disposition of the civil case. Finally, the
complainants were not entirely without any valid or justifiable defense. They could
prove that the plaintiff was not entitled to all the damages sought by him or that if
he were so, they could ask for a reduction of the amounts thereof.
We do not therefore hesitate to rule that the respondent is not free from any blame
for the sad fate of the complainants. He is liable for inexcusable negligence.
WHEREFORE, ATTY. AMADO R. FOJAS is hereby REPRIMANDED and
ADMONISHED to be, henceforth, more careful in the performance of his duty to
his clients.
SO ORDERED.
81
MA. ELENA CARLOS NEBREJA, Petitioner, vs. ATTY. BENJAMIN REONAL,
Respondent.
For resolution is the administrative complaint for disbarment1 filed by Ma. Elena
Carlos Nebreja (complainant) against Atty. Benjamin Reonal (respondent) for his
failure to file the contracted petition for annulment of marriage in her behalf; for his
misrepresentation on its status; and for his use of a fictitious office address.
On June 26, 2006, complainant filed a verified Complaint-Affidavit before the
Commission on Bar Discipline (CBP) of the Integrated Bar of the Philippines
against respondent. Complainant alleged in her complaint-affidavit and position
paper that sometime in March 2004, she engaged respondent's services to file her
petition for annulment. She paid in cash and in checks,2 the various fees he asked
from her on several occasions which totalled ₱55,000.00.
After paying respondent, however, complainant did not receive any word from him
with regard to the status of her petition for annulment other than his claim that they
needed to wait for her appointment with the psychologist evaluation.
On April 4, 2005, respondent told complainant that her petition for annulment was
dismissed for lack of evidence. He then again asked for sums of money, on
separate occasions, totalling ₱25,900.00, to pay for the psychological test, the
sheriff’s fee, the re-filing fee, and the publication.
Complainant again, despite respondent’s receipt of sums of money, failed to
receive any update from respondent. When complainant asked for the schedule of
her psychological test, respondent merely told her that the psychologist was
unavailable. When she tried to ask for the number of her case and to obtain copies
of the records, respondent just told her that the records were kept in a cabinet, the
key to which was in the possession of his law partner who was out of town at that
time.
On March 14, 2006, complainant met with respondent to secure copies of her
annulment case file. Respondent, however, merely handed to her photocopies of
her marriage contract and her children’s birth certificates. When she asked for
copies of her case files, he just told her that his law office could not let her use the
pleadings of the case. She then asked for his office address to appeal to his law
partners, but respondent refused to give it.
Complainant checked her records and found respondent’s demand letter bearing
the address of his claimed law office, "18/f Century Towers Building, Legaspi St.
corner de la Rosa, Makati." When complainant tried to look for the said office, she
discovered that there was no such building. She also found respondent’s calling
card bearing the address, "86 Magat Salamat Street, Project 4, Quezon City,"
which, complainant found out, was respondent’s residential address.
When complainant tried again to obtain copies of her annulment case from
respondent, he did not give any and told her that her annulment case would just
be re-filed. When she asked him to write a letter to explain to the University of
Perpetual Help-Rizal the discrepancy between the surnames appearing in her
children’s NSO-issued birth certificates and the school records, respondent did not
mention any pending annulment case in the letter, which he filed in complainant’s
behalf. These circumstances made complainant suspect that he did not file any
petition for annulment at all.
In his answer and position paper, respondent denied having been engaged by
complainant to handle her petition for annulment and having been paid therefor. In
particular, respondent averred that complainant did not engage him to be her
lawyer because she was unemployed and could not afford his legal services; that
he was the retained counsel of one Desiree Dee, complainant’s associate, in the
prosecution of labor, civil and criminal cases, but not for her annulment; that in the
preparation of the affidavit for the University of Perpetual Help, he did not mention
her intention to pursue an annulment proceeding against her husband upon her
request; and that no psychological test was conducted because she refused to
allocate time to accommodate the schedule of the clinical psychologist.
7
There are two principal issues to be resolved in this case. First, whether indeed
respondent failed to file the requisite petition for annulment for complainant and
misrepresented its status; and second, whether or not he used a fictitious office
address.
With regard to the first issue, the CBD found that respondent was liable for
inexcusable negligence for failing to file her petition for annulment. There was no
dispute that the parties met to discuss about the filing of complainant’s intended
petition for annulment of marriage. They, however, disagreed on the engagement
of his services to file the petition.
On the matter, CBD found as sufficient the documentary evidence of payment
submitted by complainant to prove the engagement of his legal services. During
the clarificatory hearing, complainant answered the questions on the purposes for
which the payments were given in a categorical, straightforward, spontaneous, and
frank manner, which demeanor was a badge of credibility.3
The CBD did not give credence to respondent’s denials, which prevailed over the
positive and categorical statement of the complainant. It cited the well-settled rule
that positive statement was stronger and attained greater evidentiary weight than
negative evidence.4 Moreover, he did not submit any evidence to support or
corroborate his denials and allegations or to refute complainant’s evidence. In sum,
his claims were merely supported by his allegations, which, by law, were not
equivalent to proof.5
With regard to the second issue, the CBD found that indeed, respondent used a
fictitious office address to deceive complainant. He did not submit any proof that
such building existed or that he held office at said address. He also did not deny
either the due execution and authenticity of the letter with his printed office
address. By failing to controvert the evidence of the other party, the truth of the
said evidence was deemed to be admitted by the litigant.6 Such act, as held by
the CBD, was a violation of respondent’s lawyer’s oath to do no falsehood and
which consequently rendered him administratively liable.
On September 25, 2008, the CBD found respondent guilty of both charges and
recommended his suspension from the practice of law and ordered him to return
the amounts taken from the complainant. The dispositive portion of its report reads:
WHEREFORE, it is therefore respectfully recommended that respondent be: (a)
suspended from the practice of law for a period of one (1) year; and (b) ordered to
return to complainant, within five (5) days from notice, the sum of ₱80,900.00 with
12% interest per annum from the date when this recommendation is affirmed by
the Supreme Court until the full amount shall have been returned.
On December 11, 2008, a resolution was passed by the Board of Governors of the
IBP, which adopted and approved the recommendation of the CBD. The IBP
Resolution is hereby quoted as follows:
RESOLUTION NO. XVIII-2008-652
CBD Case No. 06-1767
Ma. Elena Carlos Nebreja vs.
Atty. Benjamin Reonal
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 Respondent’s violation of Rule 18.03,
Canon 18 of the Code of Professional Responsibility for his inexcusable
negligence by failure to file the annulment petition and for misrepresentation, Atty.
Benjamin Reonal is hereby SUSPENDED from the practice of law for one (1) year
and Ordered to return the amount of Eighty Thousand Nine Hundred Pesos
(₱80,900.00)* to complainant within five (5) days from notice with 12% interest per
annum from the date this recommendation is affirmed by the Supreme Court.
Complainant and respondent filed their motions for reconsideration on April 25,
2009 and April 27, 2009 respectively, but both were denied in a resolution, dated
January 3, 2013.
After a thorough review of the records, the Court agrees with the resolution of the
IBP except with respect to the order to return the amount of ₱80,900.00.
Despite the engagement of his services, respondent did not file the contracted
petition. His conduct, as held in Vda. De Enriquez v. San Jose,7 amounted to
inexcusable negligence. This was found to be contrary to the mandate prescribed
in Rule 18.03, Canon 18 of the Code of Professional Responsibility, which enjoined
a lawyer not to neglect a legal matter entrusted to him.
Rule 18.03, Canon 18 of the Code of Professional Responsibility provides for the
rule on negligence and states:
Rule 18.03 - A lawyer shall not neglect a legal matter entrusted to him and his
negligence in connection therewith shall render him liable.
This Court has consistently held, in construing this Rule, that the mere failure of
the lawyer to perform the obligations due to the client is considered per se a
violation.8 Thus, a lawyer was held to be negligent when he failed to do anything
to protect his client's interest after receiving his acceptance fee.9 In another
case,10 this Court has penalized a lawyer for failing to inform the client of the status
of the case, among other matters. In another instance, for failure to take the
appropriate actions in connection with his client's case, the lawyer was suspended
from the practice of law for a period of six months and was required to render
accounting of all the sums he received from his client.11
With regard to respondent’s misrepresentation of his office address, the case of
Porac Trucking, Inc. v. Court of Appeals,12 sets an example. In the said case, the
Court imposed a six-month suspension on the lawyer after it was established that
the said lawyer indeed claimed to be a lawyer of Porac Trucking, Inc. when, in truth
and in fact, he was not. Still, in another case,13 the same six (6) month suspension
was inposed on the erring lawyer after it was established that he claimed before
the trial court to be a member of Citizens Legal Assistance Office when in truth, he
was not.
In this case, respondent clearly received his acceptance fee, among others, and
then completely neglected his client’s cause. Moreover, he failed to inform
complainant of the true status of the petition. His act of receiving money as
acceptance fee for legal services in handling the complainant's case and,
subsequently, failing to render the services, was a clear violation of Canon 18 of
the Code of Professional Responsibility.14
For all of respondent's acts - failure to file the contracted petition for annulment of
marriage in behalf of the complainant, his misrepresentation on its status and his
use of a fictitious office address, he deserves the penalty imposed upon him by the
IBP.
The Court, however, deletes the aforementioned order stated in the resolution of
the IBP, to wit, "To return the amount of Eighty Thousand Nine Hundred Pesos
(₱80,900.00) to complainant within five (5) days from notice with 12% interest per
annum from the date this recommendation is affirmed by the Supreme Court." The
Court has recently adopted the policy to let the complainant claim and collect the
amount due from the respondent in an independent action, civil or
criminal.1âwphi1
Nevertheless, the Court looks with disfavor at the non-payment by a lawyer of his
due obligations.
WHEREFORE, the December 11, 2008 Resolution of the IBP adopting and
approving the September 25, 2008 Recommendation of the Commission on Bar
Discipline of the IBP that Atty. Benjamin Reonal be suspended from the practice
of law for one (1) year is hereby APPROVED. The order to return the amounts
received from complainant is hereby DELETED. This decision is immediately
executory and is without prejudice to the filing of any civil or criminal action against
respondent.
Let a copy of this resolution be furnished the Bar Confidant to be included in the
records of the respondent; the Integrated Bar of the Philippines for distribution to
all its chapters; and the Office of the Court Administrator for dissemination to all
courts throughout the country.
SO ORDERED.
8

82
NICANOR GONZALES and SALUD B. PANTANOSAS, complainants,
vs. ATTY. MIGUEL SABACAJAN, respondent.
REGALADO, J.:
This resolves the administrative case filed by Nicanor Gonzales and Salud B.
Pantanosas against Atty. Miguel Sabacajan on February 14, 1995,1 the verified
complaint wherefor alleges:
xxx xxx xxx
4. That sometime in October, 1994, complainants were informed by the
Register of Deeds of Cagayan de Oro City that the complainants' owner's duplicate
of title covering their lands, Transfer Certificate of Title Nos. T-91736 and T-91735
were entrusted to the office secretary of the respondent who in torn entrusted the
same to respondent;
5. That respondent admitted and confirmed to the complainants that their
titles are in his custody and has even shown the same (to) the complainant Salud
B. Pantanosas but when demanded (sic) to deliver the said titles to the
complainant in a formal demand letter, marked as ANNEX "A," respondent refused
and continues to refuse without any justification to give their titles (and) when
confronted, respondent challenged the complainants to file any case in any court
even in the Honorable Supreme Court;
6. That respondent's dare or challeng(e) is a manifestation of his
arrogance taking undue advantage of his legal profession over the simplicity,
innocence and ignorance of the complainants, one of whom is his blood relative,
his aunt, for which complainants shudder with mental anguish;
7. That due to his challeng(e), the complainants sent a letter to the
Honorable Supreme Court for enlightenment, copy of which is attached as ANNEX
"B", for which the Honorable Supreme Court required 19 legible copies of a verified
complaint;
8. That in spite of repeated demands, request(s) and pleas towards (sic)
respondent, respondent still fail(ed) and stubbornly refused without justification to
surrender the said titles to the rightful owners, the complainants here(in), which act
is tantamount to willful and malicious defiance of legal and moral obligations
emanating from his professional capacity as a lawyer who had sworn to uphold
law and justice, to the prejudice and damage of the complainants; 2
xxx xxx xxx
On March 22, 1995, the Court required respondent to comment on the foregoing
complaint. In his unverified "Answer" thereto, respondent admitted having met
Salud Pantanosas but claims that, to his recollection, "Nicanor Gonzales/Serdan"
has never been to his office. Respondent likewise denied that he challenged
anyone to file a case in any court, much less the Supreme Court. He also claims
that he referred complainant Pantanosas to his client, Mr. Samto M. Uy of Iponan,
Cagayan de Oro City, for whom he worked out the segregation of the titles, two of
which are the subject of the instant case.3
Respondent likewise denies complainants' allegation that he is arrogant, in
contrast to the innocence, simplicity and ignorance of said complainants. He
contends that the truth of the matter is that complainants have been charged with
a number of criminal and civil complaints before different courts. He also asserts
that he was holding the certificates of title in behalf of his client, Samto M. Uy.4
Atty. Sabacajan stresses, by way of defense, that "the instant action was chosen
precisely to browbeat him into delivering the Certificates of Title to them without
said certificates passing the hands of Mr. Samto Uy with whom the complainants
have some monetary obligations."5
In its resolution dated June 26, 1995,6 for internal administrative purposes the
Court referred this case to the Office of the Bar Confidant for the corresponding
evaluation, report and recommendation.
From the foregoing proceedings taken on this matter, the Court finds that
respondent admitted having taken possession of the certificates of title of
complainants but refused to surrender the same despite demands made by the
latter. It follows, therefore, that it was incumbent upon him to show that he was
legally justified in doing so. Instead, all he did was to inform this Court that "his
obligation to deliver the certificates to Mr. Samto Uy excludes the delivery of said
certificates to anyone else."7
Respondent attached some certifications to his "Answer" to support his contention
that complainants are notorious characters. However, the certifications indicate
that most of the cases stated therein, especially those involving fraud, have been
dismissed. With respect to those still pending, there is no indication as to the
identity of the party who instituted the same, aside from the consideration that the
remedy thereon is judicial in nature. At any rate, these aspersions on the character
of complainants have no bearing on the misconduct of respondent charged in the
present case.
Respondent likewise submitted xerox copies of certain certificates of title in an
effort to explain why he kept the certificates of title of complainants, that is,
supposedly for the purpose of subdividing the property. However, an examination
of the same does not show any connection thereof to respondent's claim. In fact,
the two sets of certificates of title appear to be entirely different from each other.
As a lawyer, respondent should know that there are lawful remedies provided by
law to protect the interests of his client. The records do not show that he or his
client have availed of said remedies, instead of merely resorting to unexplained, if
not curt, refusals to accommodate the requests of complainants. Also, he cannot
be unaware of the imposable sanctions on a counsel who resorts to unlawful
means that would cause injustice to the adversaries of his client.
The Court accordingly finds that respondent has not exercised the good faith and
diligence required of lawyers in handling the legal affairs of their clients. If
complainants did have the alleged monetary obligations to his client, that does not
warrant his summarily confiscating their certificates of title since there is no
showing in the records that the same were given as collaterals to secure the
payment of a debt. Neither is there any intimation that there is a court order
authorizing him to take and retain custody of said certificates of title.
Apparently, respondent has disregarded Canon 15, Rule 15.07 of the Code of
Professional Responsibility which provides that a lawyer shall impress upon his
client the need for compliance with the laws and principles of fairness. Instead, he
unjustly refused to give to complainants their certificates of titles supposedly to
enforce payment of their alleged financial obligations to his client and presumably
to impress the latter of his power to do so.
Canon 19, Rule 19.01 ordains that a lawyer shall employ only fair and honest
means to attain the lawful objectives of his client and shall not present, participate
in presenting, or threaten to present unfounded charges to obtain an improper
advantage in any case or proceeding. Respondent has closely skirted this
proscription, if he has not in fact transgressed the same.
On the foregoing considerations, the Court desires and directs that respondent
should forthwith return the certificates of title of complainants. To ensure the same,
he should be placed under suspension until he presents to the Court proof of
receipt by complainants of their respective copies of Certificates of Title Nos. T-
91735 and T-91736 or a judicial order or document authorizing or justifying the
retention of possession thereof by respondent or his aforenamed client.
WHEREFORE, Atty. Miguel Sabacajan is hereby SUSPENDED from the practice
of law until he can duly show to this Court that the disputed certificates of title have
been returned to and the receipt thereof duly acknowledged by complainants, or
can present a judicial order or appropriate legal authority justifying the possession
by him or his client of said certificates. He is further WARNED that a repetition of
the same or similar or any other administrative misconduct will be punished more
severely.
Let a copy of this resolution be spread on the personal records of respondent and
have copies thereof furnished to the Integrated Bar of the Philippines and duly
circularized to all courts in the country.
SO ORDERED.
83
PENA VS APARICIO
In this administrative complaint, a lawyer is charged with violation of Rule 19.01 of
Canon 19 of the Code of Professional Responsibility for writing a demand letter
the contents of which threatened complainant with the filing of criminal cases for
tax evasion and falsification of documents.
Atty. Lolito G. Aparicio (respondent) appeared as legal counsel for Grace C.
Hufana in an illegal dismissal case before the National Labor Relations
9
Commission (NLRC). Sometime in August 2005, complainant Fernando Martin O. The requirement of a certification against forum shopping was originally required
Pena, as President of MOF Company, Inc. (Subic), received a notice from the by Circular No. 28-91, dated 8 February 1994, issued by this Court for every
Conciliation and Mediation Center of the NLRC for a mediation/conciliation petition filed with the Court or the Court of Appeals. Administrative Circular No. 04-
conference. In the conference, respondent, in behalf of his client, submitted a claim 94, made effective on 1 April 1994, expanded the certification requirement to
for separation pay arising from her alleged illegal dismissal. Complainant rejected include cases filed in courts and quasi-judicial agencies below this Court and the
the claim as being baseless. Complainant thereafter sent notices to Hufana for the Court of Appeals. Ultimately, the Court adopted paragraphs (1) and (2) of
latter to explain her absences and to return to work. In reply to this return to work Administrative Circular No. 04-94 to become Section 5, Rule 7 of the
notice, respondent wrote a letter to complainant reiterating his clients claim for
separation pay. The letter also contained the following threat to the company: 1997 Rules of Civil Procedure.[15] Said rule states that a violation thereof would
constitute contempt of court and be cause for the summary dismissal of both
BUT if these are not paid on August 10, 2005, we will be constrained to file and petitions without prejudice to the taking of appropriate action against the counsel
claim bigger amounts including moral damages to the tune of millions under of the party concerned.[16]
established precedence of cases and laws. In addition to other multiple charges
like: The Investigating Commissioner and the IBP Board of Governors took against
complainant his failure to attach the certification against forum shopping to his
complaint and consequently dismissed his complaint. This Court, however,
1. Tax evasion by the millions of pesos of income not reported to the disagrees and, accordingly, grants the petition. However, a remand of the case to
government. the IBP would unduly prolong its adjudication.
2. Criminal Charges for Tax Evasion
3. Criminal Charges for Falsification of Documents The Courts determination is anchored on the sui generis nature of disbarment
4. Cancellation of business license to operate due to violations of proceedings, the reasons for the certification against forum shopping requirement,
laws.
complainants subsequent compliance with the requirement, and the merit of
complainants complaint against respondent.
These are reserved for future actions in case of failure to pay the above amounts
as settlements in the National Labor Relations Commission (NLRC).
The Court, in the case of In re Almacen,[17] dwelt on the sui generis character of
disciplinary proceedings against lawyers, thus:
Believing that the contents of the letter deviated from accepted ethical standards,
complainant filed an administrative complaint[2] with the Commission on Bar
Disciplinary proceedings against lawyers are sui generis. Neither purely civil nor
Discipline of the Integrated Bar of the Philippines (IBP). Respondent filed an
purely criminal, they do not involve a trial of an action or a suit, but is rather an
Answer with Impleader (Motion to Dismiss and Counterclaims)[3] claiming that
investigation by the Court into the conduct of one of its officers. Not being intended
Atty. Emmanuel A. Jocson, complainants legal counsel, also played an important
to inflict punishment, it is in no sense a criminal prosecution. Accordingly, there is
part in imputing the malicious, defamatory, and fabricated charges against him.
neither a plaintiff nor a prosecutor therein. It may be initiated by the Court motu
Respondent also pointed out that the complaint had no certification against forum
proprio. Public interest is its primary objective, and the real question for
shopping and was motivated only to confuse the issues then pending before the
determination is whether or not the attorney is still a fit person to be allowed the
Labor Arbiter. By way of counterclaim, respondent asked for damages and for the
privileges as such. Hence, in the exercise of its disciplinary powers, the Court
disbarment of Atty. Jocson. Respondent also asked the IBP to endorse the
merely calls upon a member of the Bar to account for his actuations as an officer
prosecution of Atty. Jocson for Usurpation of Public Functions[4] and for violation
of the Court with the end in view of preserving the purity of the legal profession
of the Notarial Law.[5]
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
A mandatory conference was held on 6 December 2005 but respondent failed to
entrusted with the duties and responsibilities pertaining to the office of an attorney.
appear.[6] Both parties were thereafter required to submit their position papers.
In such posture, there can thus be no occasion to speak of a complainant or a
prosecutor.[18] [Emphasis supplied]
The Report and Recommendation[7] of Investigating Commissioner Milagros V.
San Juan found that complainant, failed to file his position paper and to comply
In view of the nature of disbarment proceedings, the certification against forum
with Administrative Circular No. 04-94 requiring a certificate against forum
shopping to be attached to the complaint, if one is required at all in such
shopping and, accordingly, recommended the dismissal of the complaint against
proceedings, must refer to another administrative case for disciplinary proceedings
respondent. On 26 May 2006, the IBP Board of Governors adopted and approved
against the same respondent, because such other proceedings or action is one
the Report and Recommendation of the Investigating Commissioner.[8] On 10 July
that necessarily involves the same issues as the one posed in the disbarment
2006, the IBP Commission on Bar Discipline transmitted to the Supreme Court the
complaint to which the certification is supposedly to be attached.
notice of said Resolution and the records of the case.[9] Thereafter, on 18 August
2006, respondent filed with the IBP a Motion for Reconsideration (for Modification
of Decision)[10] reiterating his claim of damages against complainant in the
amount of four hundred million pesos (P400,000,000.00), or its equivalent in
Further, the rationale for the requirement of a certification against forum shopping
dollars, for filing the false, malicious, defamers [sic], fraudulent, illegal fabricators
is to apprise the Court of the pendency of another action or claim involving the
[sic], malevolent[,] oppressive, evasive filing [of] a groundless and false suit.[11]
same issues in another court, tribunal or quasi-judicial agency, and thereby
precisely avoid the forum shopping situation. Filing multiple petitions or complaints
Complainant thereafter filed this Petition for Review (of the Resolution of the IBP
constitutes abuse of court processes,[19] which tends to degrade the
Commission on Bar Discipline)[12] alleging that he personally submitted and filed
administration of justice, wreaks havoc upon orderly judicial procedure, and adds
with the IBP his position paper, after serving a copy thereof on respondent by
to the congestion of the heavily burdened dockets of the courts.[20] Furthermore,
registered mail. He further alleges that he was deprived of his right to due process
the rule proscribing forum shopping seeks to promote candor and transparency
when the IBP dismissed his complaint without considering his position paper and
among lawyers and their clients in the pursuit of their cases before the courts to
without ruling on the merits thereof.
promote the orderly administration of justice, prevent undue inconvenience upon
the other party, and save the precious time of the courts. It also aims to prevent
Complainant accordingly prays for the reversal and setting aside of the 26 May
the embarrassing situation of two or more courts or agencies rendering conflicting
2006 Resolution[13] of the IBP Board of Governors and the remand of the case to
resolutions or decisions upon the same issue.[21]
the IBP Commission on Bar Discipline for proper adjudication and disposition on
the merits.
It is in this light that we take a further look at the necessity of attaching a
certification against forum shopping to a disbarment complaint. It would seem that
Based on the records, there is truth to complainants assertion that he filed his
the scenario sought to be avoided, i.e., the filing of multiple suits and the possibility
position paper on 21 December 2005, after serving a copy of the same to
of conflicting decisions, rarely happens in disbarment complaints considering that
respondent. The IBP stamp on the front page of said document shows that it was
said proceedings are either taken by the Supreme Court motu proprio, or by the
received by the IBP on 21 December 2005. The registry receipt attached to the
Integrated Bar of the Philippines (IBP) upon the verified complaint of any
same document also shows that it was sent by registered mail to respondent on
person.[22] Thus, if the complainant in a disbarment case fails to attach a
the same date. [14]
certification against forum shopping, the pendency of another disciplinary action
against the same respondent may still be ascertained with ease. We have
Complainant, however, omitted to offer any explanation in his petition before this
previously held that the rule requiring a certification of forum shopping to
Court for his failure to attach a certification against forum shopping in his complaint
accompany every initiatory pleading, should not be interpreted with such absolute
against respondent.
literalness as to subvert its own ultimate and legitimate objective or the goal of all

10
rules of procedurewhich is to achieve substantial justice as expeditiously as
possible.[23]
At any rate, complainants subsequent compliance with the requirement cured the
supposed defect in the original complaint. The records show that complainant
submitted the required certification against forum shopping on 6 December 2006
when he filed his Comment/Opposition to respondents Motion to Dismiss the
present petition.
Finally, the intrinsic merit of complainants case against respondent justifies the
grant of the present petition. Respondent does not deny authorship of the
threatening letter to complainant, even spiritedly contesting the charge that the
letter is unethical.
Canon 19 of the Code of Professional Responsibility states that a lawyer shall
represent his client with zeal within the bounds of the law, reminding legal
practitioners that a lawyers duty is not to his client but to the administration of
justice; to that end, his clients success is wholly subordinate; and his conduct ought
to and must always be scrupulously observant of law and ethics.[24] In particular,
Rule 19.01 commands that a lawyer shall employ only fair and honest means to
attain the lawful objectives of his client and shall not present, participate in
presenting or threaten to present unfounded criminal charges to obtain an
improper advantage in any case or proceeding. Under this Rule, a lawyer should
not file or threaten to file any unfounded or baseless criminal case or cases against
the adversaries of his client designed to secure a leverage to compel the
adversaries to yield or withdraw their own cases against the lawyers client.[25]
In the case at bar, respondent did exactly what Canon 19 and its Rule proscribe.
Through his letter, he threatened complainant that should the latter fail to pay the
amounts they propose as settlement, he would file and claim bigger amounts
including moral damages, as well as multiple charges such as tax evasion,
falsification of documents, and cancellation of business license to operate due to
violations of laws. The threats are not only unethical for violating Canon 19, but
they also amount to blackmail.
Blackmail is the extortion of money from a person by threats of accusation or
exposure or opposition in the public prints,obtaining of value from a person as a
condition of refraining from making an accusation against him, or disclosing some
secret calculated to operate to his prejudice. In common parlance and in general
acceptation, it is equivalent to and synonymous with extortion, the exaction of
money either for the performance of a duty, the prevention of an injury, or the
exercise of an influence. Not infrequently, it is extorted by threats, or by operating
on the fears or the credulity, or by promises to conceal or offers to expose the
weaknesses, the follies, or the crime of the victim.[26]
In Sps. Boyboy v. Atty. Yabut, Jr.,[27] we held that [a]n accusation for blackmail
and extortion is a very serious one which, if properly substantiated, would entail
not only respondents disbarment from the practice of law, but also a possible
criminal prosecution.[28] While the respondent in Boyboy was exonerated for lack
of evidence, the same may not be said of respondent in the present case for he
admits to writing the offensive letter.
In fact, respondent does not find anything wrong with what he wrote, dismissing
the same as merely an act of pointing out massive violations of the law by the other
party, and, with boldness, asserting that a lawyer is under obligation to tell the
truth, to report to the government commission of offenses punishable by the
State.[29] He further asserts that the writing of demand letters is a standard
practice and tradition and that our laws allow and encourage the settlement of
disputes.
Respondents assertions, however, are misleading, for it is quite obvious that
respondents threat to file the cases against complainant was designed to secure
some leverage to compel the latter to give in to his clients demands. It was not
respondents intention to point out complainants violations of the law as he so
gallantly claims. Far from it, the letter even contains an implied promise to keep
silent about the said violations if payment of the claim is made on the date
indicated.
Indeed, the writing of demand letters is a standard practice and tradition in this
jurisdiction. It is usually done by a lawyer pursuant to the principal-agent
relationship that he has with his client, the principal. Thus, in the performance of
his role as agent, the lawyer may be tasked to enforce his clients claim and to take
all the steps necessary to collect it, such as writing a letter of demand requiring
payment within a specified period. However, the letter in this case contains more
than just a simple demand to pay. It even contains a threat to file retaliatory
charges against complainant which have nothing to do with his clients claim for
separation pay. The letter was obviously designed to secure leverage to compel
complainant to yield to their claims. Indeed, letters of this nature are definitely
proscribed by the Code of Professional Responsibility.
Respondent cannot claim the sanctuary provided by the privileged communication
rule under which a private communication executed in the performance of a legal
duty is not actionable. The privileged nature of the letter was removed when
respondent used it to blackmail complainant and extort from the latter compliance
with the demands of his client.
However, while the writing of the letter went beyond ethical standards, we hold that
disbarment is too severe a penalty to be imposed on respondent, considering that
he wrote the same out of his overzealousness to protect his clients interests.
Accordingly, the more appropriate penalty is reprimand.
WHEREFORE, premises considered, the petition is granted. The 26 May 2006
Resolution of the IBP Board of Governors is hereby REVERSED and SET ASIDE.
Respondent Atty. Lolito G. Aparicio is hereby found liable for violation of Rule
19.01 of Canon 19 of the Code of Professional Responsibility, and is accordingly
meted out the penalty of REPRIMAND, with the STERN WARNING that a
repetition of the same or similar act will be dealt with more severely.
SO ORDERED.
84
BENEDICTO LEVISTE, petitioner,
vs.
THE COURT OF APPEALS, HON. JUDGE LUIS B. REYES, COURT OF FIRST
INSTANCE OF MANILA, ROSA DEL ROSARIO, RITA BANU, CARMEN DE
GUZMAN-MARQUEZ, JESUS R. DE GUZMAN, RAMON R. DE GUZMAN,
JACINTO R. DE GUZMAN and ANTONIO R. DE GUZMAN, respondents.
The issue in this case is whether or not an attorney who was engaged on a
contingent fee basis may, in order to collect his fees, prosecute an appeal despite
his client's refusal to appeal the decision of the trial court.
On September 7, 1963, the petitioner, a practicing attorney, entered into a written
agreement with the private respondent Rosa del Rosario to appear as her counsel
in a petition for probate of the holographic will of the late Maxima C. Reselva. Under
the will, a piece of real property at Sales Street, Quiapo, Manila, was bequeathed
to Del Rosario. It was agreed that petitioner's contigent fee would be thirty-five per
cent (35%) of the property that Rosa may receive upon the probate of the will
(Annex "A", p. 59, Rollo).
In accordance with their agreement, Leviste performed the following services as
Del Rosario's counsel:
(1) Thoroughly researched and studied the law on probate and succession;
(2) Looked for and interviewed witnesses, and took their affidavits;
(3) Filed the petition for. probate is Special Proceeding No. 58325;
(4) Made the proper publications;
(5) Presented at the trial the following witnesses:
a) Eleuterio de Jesus
b) Lucita de Jesus
c) Purita L. Llanes
d) Rita Banu
e) Jesus Lulod.
On August 20, 1965, Leviste received a letter from Ms. Del Rosario, informing him
that she was terminating his services as her counsel due to "conflicting interest."
This consisted, according to the letter, in petitioner's moral obligation to protect the
interest of his brother-in-law, Gaudencio M. Llanes, whom Del Rosario and the
other parties in the probate proceeding intended to eject as lessee of the property
which was bequeathed to Del Rosario under the will (Annex "B", p. 60, Rollo).
On September 20, 1965, petitioner filed a "Motion to Intervene to Protect His Rights
to Fees for Professional Services." (Annex "B", p. 60, Rollo.)
In an order dated November 12, 1965 the trial court denied his motion on the
ground that he had "not filed a claim for attorney's fees nor recorded his attorney's
lien." (p. 3, Rollo.)
On November 23, 1965, petitioner filed a "Formal Statement of Claim for Attorney's
Fees and Recording of Attorney's Lien,' which was noted in the court's order of
December 20, 1965 (Annexes "D" and "E", pp. 63 & 64, Rollo).
11
Although the order denying his motion to intervene had become final, petitioner
continued to receive copies of the court's orders, as well the pleadings of the other
parties in the case. He also continued to file pleadings. The case was submitted
for decision without the respondents' evidence.
On November 23, 1966, Del Rosario and Rita Banu, the special administratrix-
legatee, filed a "Motion To Withdraw Petition for Probate" alleging that Del Rosario
waived her rights to the devise in her favor and agreed that the De Guzman
brothers and sisters who opposed her petition for probate, shall inherit all the
properties left by the decedent. (Annex "F", p. 65, Rollo.)
In an order of April 13, 1967 the trial court denied the motion to withdraw the
petition for being contrary to public policy (Annex "G", pp. 66-67, Rollo).
Nonetheless, on August 28, 1967, the court disallowed the will, holding that the
legal requirements for its validity were not satisfied as only two witnesses testified
that the will and the testatrix's signature were in the handwriting of Maxima
Reselva.
The petitioner filed an appeal bond, notice of appeal, and record on appeal. The
private respondents filed a motion to dismiss the appeal on the ground that
petitioner was not a party in interest.
The petitioner opposed the motion to dismiss his appeal, claiming that he has a
direct and material interest in the decision sought to be reviewed. He also asked
that he be substituted as party-petitioner, in lieu of his former client, Ms. Del
Rosario.
On March 28, 1968, the trial judge dismissed the appeal and denied petitioner's
motion for substitution.
The petitioner filed in the Court of Appeals a petition for mandamus (CA-G.R. No.
41248) praying that the trial court be ordered to give due course to his appeal and
to grant his motion for substitution.
On May 22, 1968, the Court of Appeals dismissed the petition for being insufficient
in form and substance as the petitioner did not appear to be the proper party to
appeal the decision in Special Proceeding No. 58325 (Annex 1, p. 77, Rollo).
Upon the denial of his motion for reconsideration, petitioner appealed by certiorari
to this Court, assigning the following errors against the Court of Appeals'
resolution:
1. The Court of Appeals erred in finding that the petitioner appears not to
be the proper party to appeal the decision in Sp. Proc. No. 58325 of
the Court of First Instance of Manila.
2. Assuming the petitioner's right of appeal is doubtful, the Court of
Appeals erred in dismissing his petition for mandamus; and
3. The Court of Appeals erred in not reversing the decision in Sp. Proc.
No. 58325 denying the probate of the holographic will of the late
Maxima C. Reselva, said decision being patently erroneous.
Under his first assignment of error, petitioner argues that by virtue of his contract
of services with Del Rosario, he is a creditor of the latter, and that under Article
1052 of the Civil Code which provides:
ART. 1052. If the heir repudiates the inheritance to the prejudice of his own
creditors, the latter may petition the court to authorize them to accept it in the name
of the heir.
The acceptance shall benefit the creditors only to an extent sufficient to cover the
amount of their credits. The excess, should there be any, shall in no case pertain
to the renouncer, but shall be adjudicated to the persons to whom, in accordance
with the rules established in this Code, it may belong.
he has a right to accept for his client Del Rosario to the extent of 35% thereof the
devise in her favor (which she in effect repudiated) to protect his contigent
attorney's fees.
The argument is devoid of merit. Article 1052 of the Civil Code does not apply to
this case. That legal provision protects the creditor of a repudiating heir. Petitioner
is not a creditor of Rosa del Rosario. The payment of his fees is contingent and
dependent upon the successful probate of the holographic will. Since the petition
for probate was dismissed by the lower court, the contingency did not occur.
Attorney Leviste is not entitled to his fee.
Furthermore, Article 1052 presupposes that the obligor is an heir. Rosa del Rosario
is not a legal heir of the late Maxima C. Reselva. Upon the dismissal of her petition
for probate of the decedent's will, she lost her right to inherit any part of the latter's
estate. There is nothing for the petitioner to accept in her name.
This Court had ruled in the case of Recto vs. Harden, 100 Phil. 1427, that "the
contract (for contingent attorney's fees) neither gives, nor purports to give, to the
appellee (lawyer) any right whatsoever, personal or real, in and to her (Mrs.
Harden's) aforesaid share in the conjugal partnership. The amount thereof is
simply a basis for the computation of said fees."
The Court of Appeals did not err in dismissing the petition for mandamus, for while
it is true that, as contended by the petitioner, public policy favors the probate of a
will, it does not necessarily follow that every will that is presented for probate,
should be allowed. The law lays down procedures which should be observed and
requisites that should be satisfied before a will may be probated. Those procedures
and requirements were not followed in this case resulting in the disallowance of
the will. There being no valid will, the motion to withdraw the probate petition was
inconsequential.
Petitioner was not a party to the probate proceeding in the lower court. He had no
direct interest in the probate of the will. His only interest in the estate is an indirect
interest as former counsel for a prospective heir. In Paras vs. Narciso, 35 Phil. 244,
We had occassion to rule that one who is only indirectly interested in a will may
not interfere in its probate. Thus:
... the reason for the rule excluding strangers from contesting the will, is not that
thereby the court maybe prevented from learning facts which would justify or
necessitate a denial of probate, but rather that the courts and the litigants should
not be molested by the intervention in the proceedings of persons with no interest
in the estate which would entitle them to be heard with relation thereto. (Paras vs.
Narciso, 35 Phil. 244, 246.)
Similary, in Morente vs. Firmalino, 40 O.G. 21st Supp. 1, We held:
We are of the opinion that the lower court did not err in holding that notice of an
attorney's lien did not entitle the attorney-appellant to subrogate himself in lieu of
his client. It only gives him the right to collect a certain amount for his services in
case his client is awarded a certain sum by the court.
WHEREFORE, the petition for certiorari is denied for lack of merit. Costs against
the petitioner.
SO ORDERED.
85
WILFREDO D. LICUDAN and CRISTINA LICUDAN-CAMPOS, petitioners,
vs.
THE HONORABLE COURT OF APPEALS and ATTY. TEODORO O.
DOMALANTA, respondents.
The practice of law is a profession rather than trade. Courts must guard against
the charging of unconscionable and excessive fees by lawyers for their services
when engaged as counsel. Whether or not the award of attorney's fees in this case
is reasonable, being in the nature of contingent fees, is the principal issue.
This petition for review on certiorari assails:
1) The Decision of the public respondent dated September 12, 1989
which dismissed the petitioners' appeal thereby upholding the reasonableness of
the respondent lawyer's lien as attorney's fees over the properties of his clients;
and
2) The Resolution of the public respondent dated January 30, 1990 which
denied the petitioners' motion for reconsideration.
The grounds relied upon by the petitioners are as follows:
The respondent Court, in upholding the entitlement of private respondent-attorney
on the attorney's fees he claimed, decided the question in a manner not in accord
with law or with the applicable decisions of this Honorable Tribunal.
The respondent Court, in refusing to review and determine the propriety,
reasonableness and validity of the attorney's fees claimed by the private
respondent-attorney, departed from the usual course of judicial proceedings.
The respondent Court, in failing to declare the attorney's fees claimed by the
private respondent-attorney as unconscionable, excessive, unreasonable,
immoral and unethical, decided the question in a way not in accord with law and
with applicable decisions of this Honorable Tribunal. (Petition, pp. 12-13; Rollo, pp.
16-17)
12

The following are the antecedent facts pertinent to the case at bar:
The respondent lawyer was retained as counsel by his brother-in-law and sister,
the now deceased petitioners' parents, spouses Aurelio and Felicidad Licudan. His
services as counsel pertained to two related civil cases docketed as Civil Case No.
Q-12254 for partition and Civil Case No. Q-28655 for a sum of money in connection
with the redemption of the property subject matter of the two cases covered by
Transfer Certificate of Title No. 818 of the Register of Deeds of Quezon City. In
both cases, the respondent lawyer obtained a judgment in favor of his clients.
On August 13,1979, the respondent lawyer filed a Petition for Attorney's Lien with
Notification to his Clients which substantially alleged that his clients executed two
written contracts for professional services in his favor which provided that:
a) The undersigned counsel is entitled to own 97.5 square meters of the
plaintiff's share of the lot in question.
b) The undersigned counsel shall have a usufructuary right for a period
of ten (10) years of plaintiffs' share of the lot in question.
c) And that all damages accruing to plaintiffs to be paid by the defendant
is for the undersigned counsel.(Annex "H" of the Petition, Rollo, p. 54)
On September 19, 1979, the trial court handling Civil Case No. Q-12254 ordered
the annotation at the back of TCT No. 818 of the Register of Deeds of Quezon City
of the respondent lawyer's Contract for Professional Services dated August 30,
1979 signed by petitioner Wilfredo Licudan and Aurelio Licudan on his own behalf
and on behalf of his daughter, petitioner Cristina Licudan-Campos. The said trial
court's Order, being one of two Orders being essentially challenged in this petition,
is reproduced below:
Before the court for consideration is a Petition for Attorney's Lien filed by Atty.
Teodoro D. Domalanta, counsel for the plaintiff, praying that his attorney's fees be
annotated as a lien at the back of Transfer Certificate of Title No. 818 of the
Register of Deeds of Quezon City, subject matter of this case.
For the protection of the plaintiffs, the court required the plaintiff Aurelio Licudan
as well as his son to appear this morning. Plaintiff Aurelio Licudan together with
his son Wilfredo Licudan, who appears to be intelligent and in fact he speaks (the)
English language well, appeared. Both Aurelio and Wilfredo Licudan manifested
that they have freely and voluntarily signed the Contract for Professional Services,
dated August 30, 1979 and notarized before Notary Public Amado Garrovillas as
Doc. No. 32, Page 8, Book No. XIX, Series of 1979.
Considering the manifestation of plaintiff, Aurelio Licudan and Alfredo (sic) Licudan
that they have entered freely and voluntarily in the said contract of professional
services, let the same be annotated at the back of TCT 818 of the Register of
Deeds of Quezon City, upon payment of the required legal fees. (CA Decision, pp.
7-8; Rollo, pp. 36-37)
The Contract for Professional Services dated August 30, 1979 differs from the
earlier contractual provisions in that it entitled the respondent lawyer to one-third
(1/3) of the subject property or 90.5 square meters and provided for usufructuary
rights over the entire lot in question in favor of the respondent lawyer's son,
Teodoro M. Domalanta, Jr. for an agreed consideration. (Annex "J" of the Petition;
Rollo, p. 59)
On July 25, 1985, the respondent lawyer filed a motion ex parte to amend the
Order dated September 19, 1979 so as to conform with an additional professional
fee covering 31 square meters more of the lot for services rendered in Civil Case
No. Q-28655 as evidenced by a Deed of Absolute Sale dated May 1, 1983
executed by Aurelio Licudan in favor of the respondent lawyer.
On September 6, 1985, the trial court ordered the respondent lawyer to submit a
subdivision plan in conformity with his attorney's fees contract under which one-
third (1/3) of the property or 90.5 square meters was alloted to him.
On September 23, 1985, the respondent lawyer filed a motion for reconsideration
praying for the amendment of the Order dated September 19, 1979 to conform
with the Deed of Absolute Sale dated May 1, 1983 which was executed after the
annotation of the original attorney's lien of 90.5 square meters.
On September 30, 1985, the trial court denied the motion on the ground that the
respondent lawyer cannot collect attorney's fees for other cases in the action for
partition.
On October 4, 1985, the respondent lawyer filed a second motion for
reconsideration of the Order dated September 6, 1985 explaining that what he
sought to be included in the Order dated September 19, 1979 is the additional
attorney's fees for handling the redemption case which was but a mere offshoot of
the partition case and further manifesting that the additional 31 square meters as
compensation for the redemption case must be merged with the 90.5 square
meters for the partition case to enable the said respondent lawyer to comply with
the Order dated September 6,1985 which directed him to submit a subdivision plan
as required.
On October 21, 1985, the trial court issued the second Order being assailed in this
petition. The said Order reads:
Acting on the "Second Motion for Reconsideration" filed by Atty. Teodoro
Domalanta and finding the same to be justified, let an attorney's lien be annotated
in the title of the property for 31 square meters as attorney's fees of said Atty.
Teodoro Domalanta in addition to the original 90.5 square meters. (CA Decision,
p. 8; Rollo, p. 37)
On August 22, 1986, more than ten (10) months after the Orders of September 6,
1985 and October 21, 1985 had become final and executory, the petitioners as
substituted heirs of the respondent lawyers' deceased clients filed a motion to set
aside orders on the ground that the award of professional fees covering 121.5
square meters of the 271.5 square meter lot is unconscionable and excessive.
After the respondent lawyer filed his Opposition to the above petitioners' motion,
the lower court, on August 29, 1986, finding that the petitioners as substituted
plaintiffs are not in full agreement with the respondent lawyer's claim for attorney's
fees, set aside its Orders dated September 6, 1985 and October 21, 1985.
On September 16, 1986, the respondent lawyer filed a motion for reconsideration
stressing the fact that the payment of the professional services was pursuant to a
contract which could no longer be disturbed or set aside because it has already
been implemented and had since then become final. This motion was denied on
October 3, 1986.
On November 15, 1986, the respondent lawyer filed a motion to set aside the
orders dated August 29, 1986 and October 3, 1986 reiterating his position that the
Orders of September 6, 1985 and October 21, 1985 have become final and are
already implemented. The respondent lawyer further asked for the modification of
the October 21, 1985 Order to reflect 60.32 square meters instead of 31 square
meters only since the stipulation in the Additional Contract for Professional
Services entitled him to 60.32 square meters.
After the petitioners' Opposition to the said motion was filed, the trial court, on
February 26, 1987, rendered an Order with the following dispositive portion:
WHEREFORE, this Court has no alternative but to set aside its orders of 29 August
1986 and 3 October 1986 and declare its Orders of 19 September 1979 and 21
October 1985 irrevocably final and executory. (CA Decision, p. 5; Rollo, p. 34)
On Appeal, the Court of Appeals ruled in favor of the respondent lawyer by
dismissing the appeal and the prayed for writ of preliminary injunction. Their
subsequent motion for reconsideration having been denied', the petitioners filed
the instant petition.
The petitioners fault the respondent Court for its failure to exercise its inherent
power to review and determine the propriety of the stipulated attorney's fees in
favor of the respondent lawyer and accuse the respondent lawyer of having
committed an unfair advantage or legal fraud by virtue of the Contract for
Professional Services devised by him after the trial court awarded him attorney's
fees for P1,000.00 only instead of respecting the trust and confidence of the
highest level reposed on him considering the close blood and affinal relationship
between him and his clients.
The petitioners contend that under the award for professional services, they may
have won the case but would lose the entire property won in litigation to their uncle-
lawyer. They would be totally deprived of their house and lot and the recovered
damages considering that of the 271.5 square meters of the subject lot, the
respondent lawyer is claiming 121.5 square meters and the remaining portion of
150 square meters would also go to attorney's fees since the said portion pertains
to the lawyer's son by way of usufruct for ten (10) years.
The aforesaid submissions by the petitioners merit our consideration.
It is a well-entrenched rule that attorney's fees may be claimed in the very action
in which the services in question have been rendered or as an incident of the main
action. The fees may be properly adjudged after such litigation is terminated and
the subject of recovery is at the disposition of the court. (see Camacho v. Court of
Appeals, 179 SCRA 604 [1989]; Quirante v. Intermediate Appellate Court, 169
SCRA 769 [1989]).
13
It is an equally deeply-rooted rule that contingent fees are not per se prohibited by
law. They are sanctioned by Canon 13 of the Canons of Professional Ethics and
Canon 20, Rule 20.01 of the recently promulgated Code of Professional
Responsibility. However, as we have held in the case of Tanhueco v. De Dumo
(172 SCRA 760 [1989]):
. . . When it is shown that a contract for a contingent fee was obtained by undue
influence exercised by the attorney upon his client or by any fraud or imposition,
or that the compensation is clearly excessive, the Court must and will protect the
aggrieved party. (Ulanday v. Manila Railroad Co., 45 Phil. 540 [1923]; Grey v.
Insular Lumber Co., 97 Phil. 833 [1955]).
In the case at bar, the respondent lawyer caused the annotation of his attorney's
fees lien in the main action for partition docketed as Civil Case No. Q-12254 on
the basis of a Contract for Professional Services dated August 30, 1979. We find
reversible error in the Court of Appeals' holding that:
When the reasonableness of the appellee's lien as attorney's fees over the
properties of his clients awarded to him by the trial court had not been questioned
by the client, and the said orders had already become final and executory, the
same could no longer be disturbed, not even by the court which rendered them
(Tañada v. Court of Appeals, 139 SCRA 419). (CA Decision p. 7; Rollo, p. 36)
On the contrary, we rule that the questioned Orders dated September 19, 1979
and October 21, 1985 cannot become final as they pertain to a contract for a
contingent fee which is always subject to the supervision of the Court with regard
to its reasonableness as unequivocally provided in Section 13 of the Canons of
Professional Ethics which reads:
13. Contingent Fees.—
A contract for a contingent fee, where sanctioned by law, should be reasonable
under all the circumstances of the case including the risk and uncertainty of the
compensation, but should always be subject to the supervision of a court, as to its
reasonableness. (Emphasis supplied).
There is no dispute in the instant case that the attorney's fees claimed by the
respondent lawyer are in the nature of a contingent fee. There is nothing irregular
about the execution of a written contract for professional services even after the
termination of a case as long as it is based on a previous agreement on contingent
fees by the parties concerned and as long as the said contract does not contain
stipulations which are contrary to law, good morals, good customs, public policy or
public order.
Although the Contract for Professional Services dated August 30, 1979 was
apparently voluntarily signed by the late Aurelio Licudan for himself and on behalf
of his daughter, petitioner Cristina Licudan-Campos and by the petitioner Wilfredo
Licudan who both manifested in open court that they gave their free and willing
consent to the said contract we cannot allow the said contract to stand as the law
between the parties involved considering that the rule that in the presence of a
contract for professional services duly executed by the parties thereto, the same
becomes the law between the said parties is not absolute but admits an
exception—that the stipulations therein are not contrary to law, good morals, good
customs, public policy or public order (see Philippine American Life Insurance
Company v. Pineda, 175 SCRA 416 [1989]; Syjuco v. Court of Appeals, 172 SCRA
111 [1989]).
Under Canon 20 of the Code of Professional Responsibility, a lawyer shall charge
only fair and reasonable fees.1âwphi1 In determining whether or not the lawyer
fees are fair and reasonable, Rule 20-01 of the same Code enumerates the factors
to be considered in resolving the said issue. They are as follows:
a) The time spent and the extent of the services rendered or
required;
b) The novelty and difficulty of the questions involved;
c) The importance of the subject matter;
d) The skill demanded;
e) The probability of losing other employment as a result of
acceptance of the proferred case;
f) The customary charges for similar services and the schedule of
fees of the IBP Chapter to which he belongs;
g) The amount involved in the controversy and the benefits resulting
to the client from the service;
h) The contingency or certainty of compensation;
i) The character of the employment, whether occasional or
established; and
j) The professional standing of the lawyer.
A similar provision is contained under Section 24, Rule 138 of the Revised Rules
of Court which partly states that:
Sec. 24. Compensation of attorneys; agreement as to fees. — An attorney shall
be entitled to have and recover from his client no more than a reasonable
compensation for his services, with a view to the importance of the subject matter
of the controversy, the extent of the services rendered, and the professional
standing of the attorney. . . . A written contract for services shall control the amount
to be paid therefor unless found by the court to be unconscionable or
unreasonable.
All that the respondent lawyer handled for his deceased sister and brother-in-law
was a simple case of partition which necessitated no special skill nor any unusual
effort in its preparation. The subsequent case for redemption was admittedly but
an offshot of the partition case. Considering the close blood and affinal relationship
between the respondent lawyer and his clients, there is no doubt that Atty.
Domalanta took advantage of the situation to promote his own personal interests
instead of protecting the legal interests of his clients. A careful perusal of the
provisions of the contract for professional services in question readily shows that
what the petitioners won was a pyrrhic victory on account of the fact that despite
the successful turnout of the partition case, they are now practically left with
nothing of the whole subject lot won in the litigation. This is because aside from
the 121.5 square meters awarded to Atty. Domalanta as attorney's fees, the said
contract for professional services provides that the remaining portion shall pertain
to the respondent lawyer's son by way of usufruct for ten (10) years. There should
never be an instance where a lawyer gets as attorney's fees the entire property
involved in the litigation. It is unconscionable for the victor in litigation to lose
everything he won to the fees of his own lawyer.
The respondent lawyer's argument that it is not he but his son Teodoro M.
Domalanta, Jr. who is claiming the usufructuary right over the remaining portion of
the subject lot is inaccurate. The records show that the matter of usufruct is tied
up with this case since the basis for the said usufructuary right is the contract for
professional services the reasonableness of which is being questioned in this
petition. We find the ten-year usufruct over the subject lot part and parcel of the
attorney's fees being claimed by the respondent lawyer.
In resolving the issue of reasonableness of the attorney's fees, we uphold the time-
honoured legal maxim that a lawyer shall at all times uphold the integrity and
dignity of the legal profession so that his basic ideal becomes one of rendering
service and securing justice, not money-making. For the worst scenario that can
ever happen to a client is to lose the litigated property to his lawyer in whom an
trust and confidence were bestowed at the very inception of the legal controversy.
We find the Contract for Professional Services dated August 30, 1979,
unconscionable and unreasonable. The amount of P20,000.00 as attorney's fees,
in lieu of the 121.5 square meters awarded to the respondent lawyer and the ten-
year usufructuary right over the remaining portion of 150 square meters by the
respondent lawyer's son, is, in the opinion of this Court, commensurate to the
services rendered by Atty. Domalanta.
WHEREFORE, IN VIEW OF THE FOREGOING, the instant petition is GRANTED.
The Court of Appeals' decision of September 12, 1989 is hereby REVERSED and
SET ASIDE. Atty. Domalanta is awarded reasonable attorney's fees in the amount
of P20,000.00.
SO ORDERED.
86
ANGEL L. BAUTISTA, complainant,
vs.
ATTY. RAMON A. GONZALES, respondent.
In a verified complaint filed by Angel L. Bautista on May 19, 1976, respondent
Ramon A. Gonzales was charged with malpractice, deceit, gross misconduct and
violation of lawyer's oath. Required by this Court to answer the charges against
him, respondent filed on June 19, 1976 a motion for a bill of particulars asking this
Court to order complainant to amend his complaint by making his charges more
definite. In a resolution dated June 28, 1976, the Court granted respondent's
motion and required complainant to file an amended complaint. On July 15, 1976,
complainant submitted an amended complaint for disbarment, alleging that
respondent committed the following acts:
14
1. Accepting a case wherein he agreed with his clients, namely, Alfaro Fortunado,
Nestor Fortunado and Editha Fortunado [hereinafter referred to as the
Fortunados] to pay all expenses, including court fees, for a contingent fee of fifty
percent (50%) of the value of the property in litigation.
2. Acting as counsel for the Fortunados in Civil Case No. Q-15143, wherein Eusebio
Lopez, Jr. is one of the defendants and, without said case being terminated,
acting as counsel for Eusebio Lopez, Jr. in Civil Case No. Q-15490;
3. Transferring to himself one-half of the properties of the Fortunados, which
properties are the subject of the litigation in Civil Case No. Q-15143, while the
case was still pending;
4. Inducing complainant, who was his former client, to enter into a contract with him
on August 30, 1971 for the development into a residential subdivision of the land
involved in Civil Case No. Q-15143, covered by TCT No. T-1929, claiming that
he acquired fifty percent (50%) interest thereof as attorney's fees from the
Fortunados, while knowing fully well that the said property was already sold at a
public auction on June 30, 1971, by the Provincial Sheriff of Lanao del Norte and
registered with the Register of Deeds of Iligan City;
5. Submitting to the Court of First Instance of Quezon City falsified documents
purporting to be true copies of "Addendum to the Land Development Agreement
dated August 30, 1971" and submitting the same document to the Fiscal's Office
of Quezon City, in connection with the complaint for estafa filed by respondent
against complainant designated as I.S. No. 7512936;
6. Committing acts of treachery and disloyalty to complainant who was his client;
7. Harassing the complainant by filing several complaints without legal basis before
the Court of First Instance and the Fiscal's Office of Quezon City;
8. Deliberately misleading the Court of First Instance and the Fiscal's Office by
making false assertion of facts in his pleadings;
9. Filing petitions "cleverly prepared (so) that while he does not intentionally tell a
he, he does not tell the truth either."
Respondent filed an answer on September 29, 1976 and an amended answer on
November 18, 1976, denying the accusations against him. Complainant filed a
reply to respondent's answer on December 29, 1976 and on March 24, 1977
respondent filed a rejoinder.
In a resolution dated March 16, 1983, the Court referred the case to the Office of
the Solicitor General for investigation, report and recommendation. In the
investigation conducted by the Solicitor General, complainant presented himself
as a witness and submitted Exhibits "A" to "PP", while respondent appeared both
as witness and counsel and submitted Exhibits "1" to "11". The parties were
required to submit their respective memoranda.
On May 16, 1988 respondent filed a motion to dismiss the complaint against him,
claiming that the long delay in the resolution of the complaint against him
constitutes a violation of his constitutional right to due process and speedy
disposition of cases. Upon order of the Court, the Solicitor General filed a comment
to the motion to dismiss on August 8, 1988, explaining that the delay in the
investigation of the case was due to the numerous requests for postponement of
scheduled hearings filed by both parties and the motions for extension of time to
file their respective memoranda." [Comment of the Solicitor General, p. 2; Record,
p. 365]. Respondent filed a reply to the Solicitor General's comment on October
26, 1988. In a resolution dated January 16, 1989 the Court required the Solicitor
General to submit his report and recommendation within thirty (30) days from
notice.
On April 11, 1989, the Solicitor General submitted his report with the
recommendation that Atty. Ramon A. Gonzales be suspended for six (6) months.
The Solicitor General found that respondent committed the following acts of
misconduct:
a. transferring to himself one-half of the properties of his clients
during the pendency of the case where the properties were
involved;
b. concealing from complainant the fact that the property subject of
their land development agreement had already been sold at a
public auction prior to the execution of said agreement; and
c. misleading the court by submitting alleged true copies of a
document where two signatories who had not signed the original
(or even the xerox copy) were made to appear as having fixed
their signatures [Report and Recommendation of the Solicitor
General, pp. 17-18; Rollo, pp. 403-404].
Respondent then filed on April 14, 1989 a motion to refer the case to the Integrated
Bar of the Philippines (IBP) for investigation and disposition pursuant to Rule 139-
B of the Revised Rules of Court. Respondent manifested that he intends to submit
more evidence before the IBP. Finally, on November 27, 1989, respondent filed a
supplemental motion to refer this case to the IBP, containing additional arguments
to bolster his contentions in his previous pleadings.
I.
Preliminarily, the Court will dispose of the procedural issue raised by respondent.
It is respondent's contention that the preliminary investigation conducted by the
Solicitor General was limited to the determination of whether or not there is
sufficient ground to proceed with the case and that under Rule 139 the Solicitor
General still has to file an administrative complaint against him. Respondent claims
that the case should be referred to the IBP since Section 20 of Rule 139-B provides
that:
This Rule shall take effect on June 1, 1988 and shall supersede the present Rule
139 entitled DISBARMENT OR SUSPENSION OF ATTORNEYS. All cases
pending investigation by the Office of the Solicitor General shall be transferred to
the Integrated Bar of the Philippines Board of Governors for investigation and
disposition as provided in this Rule except those cases where the investigation has
been substantially completed.
The above contention of respondent is untenable. In the first place, contrary to
respondent's claim, reference to the IBP of complaints against lawyers is not
mandatory upon the Court [Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707;
Zaldivar v. Gonzales, G.R. No. 80578, October 7, 1988]. Reference of complaints
to the IBP is not an exclusive procedure under the terms of Rule 139-B of the
Revised Rules of Court [Ibid]. Under Sections 13 and 14 of Rule 139-B, the
Supreme Court may conduct disciplinary proceedings without the intervention of
the IBP by referring cases for investigation to the Solicitor General or to any officer
of the Supreme Court or judge of a lower court. In such a case, the report and
recommendation of the investigating official shall be reviewed directly by the
Supreme Court. The Court shall base its final action on the case on the report and
recommendation submitted by the investigating official and the evidence
presented by the parties during the investigation.
Secondly, there is no need to refer the case to the IBP since at the time of the
effectivity of Rule 139-B [June 1, 1988] the investigation conducted by the Office
of the Solicitor General had been substantially completed. Section 20 of Rule 139-
B provides that only pending cases, the investigation of which has not been
substantially completed by the Office of the Solicitor General, shall be transferred
to the IBP. In this case the investigation by the Solicitor General was terminated
even before the effectivity of Rule 139-B. Respondent himself admitted in his
motion to dismiss that the Solicitor General terminated the investigation on
November 26, 1986, the date when respondent submitted his reply memorandum
[Motion to Dismiss, p. 1; Record, p. 353].
Thirdly, there is no need for further investigation since the Office of the Solicitor
General already made a thorough and comprehensive investigation of the case.
To refer the case to the IBP, as prayed for by the respondent, will result not only
in duplication of the proceedings conducted by the Solicitor General but also to
further delay in the disposition of the present case which has lasted for more than
thirteen (13) years.
Respondent's assertion that he still has some evidence to present does not warrant
the referral of the case to the IBP. Considering that in the investigation conducted
by the Solicitor General respondent was given ample opportunity to present
evidence, his failure to adduce additional evidence is entirely his own fault. There
was therefore no denial of procedural due process. The record shows that
respondent appeared as witness for himself and presented no less than eleven
(11) documents to support his contentions. He was also allowed to cross-examine
the complainant who appeared as a witness against him.
II.
The Court will now address the substantive issue of whether or not respondent
committed the acts of misconduct alleged by complainant Bautista.
After a careful review of the record of the case and the report and recommendation
of the Solicitor General, the Court finds that respondent committed acts of
misconduct which warrant the exercise by this Court of its disciplinary power.
The record shows that respondent prepared a document entitled "Transfer of
Rights" which was signed by the Fortunados on August 31, 1971. The document
assigned to respondent one-half (1/2) of the properties of the Fortunados covered
by TCT No. T-1929, with an area of 239.650 sq. mm., and TCT No. T-3041, with
15
an area of 72.907 sq. m., for and in consideration of his legal services to the latter.
At the time the document was executed, respondent knew that the
abovementioned properties were the subject of a civil case [Civil Case No. Q-
15143] pending before the Court of First Instance of Quezon City since he was
acting as counsel for the Fortunados in said case [See Annex "B" of Original
Complaint, p. 12; Rollo, p. 16]. In executing the document transferring one-half
(1/2) of the subject properties to himself, respondent violated the law expressly
prohibiting a lawyer from acquiring his client's property or interest involved in any
litigation in which he may take part by virtue of his profession [Article 1491, New
Civil Code]. This Court has held that the purchase by a lawyer of his client's
property or interest in litigation is a breach of professional ethics and constitutes
malpractice [Hernandez v. Villanueva, 40 Phil. 774 (1920); Go Beltran v.
Fernandez, 70 Phil. 248 (1940)].
However, respondent notes that Canon 10 of the old Canons of Professional
Ethics, which states that "[t]he lawyer should not purchase any interests in the
subject matter of the litigation which he is conducting," does not appear anymore
in the new Code of Professional Responsibility. He therefore concludes that while
a purchase by a lawyer of property in litigation is void under Art. 1491 of the Civil
Code, such purchase is no longer a ground for disciplinary action under the new
Code of Professional Responsibility.
This contention is without merit. The very first Canon of the new Code states that
"a lawyer shall uphold the Constitution, obey the laws of the land and promote
respect for law and legal process" (Emphasis supplied), Moreover, Rule 138, Sec.
3 of the Revised Rules of Court requires every lawyer to take an oath to 44 obey
the laws [of the Republic of the Philippines] as well as the legal orders of the duly
constituted authorities therein." And for any violation of this oath, a lawyer may be
suspended or disbarred by the Supreme Court [Rule 138, Sec. 27, Revised Rules
of Court]. All of these underscore the role of the lawyer as the vanguard of our
legal system. The transgression of any provision of law by a lawyer is a repulsive
and reprehensible act which the Court will not countenance. In the instant case,
respondent, having violated Art. 1491 of the Civil Code, must be held accountable
both to his client and to society.
Parenthetically, it should be noted that the persons mentioned in Art. 1491 of the
Civil Code are prohibited from purchasing the property mentioned therein because
of their existing trust relationship with the latter. A lawyer is disqualified from
acquiring by purchase the property and rights in litigation because of his fiduciary
relationship with such property and rights, as well as with the client. And it cannot
be claimed that the new Code of Professional Responsibility has failed to
emphasize the nature and consequences of such relationship. Canon 17 states
that "a lawyer owes fidelity to the cause of his client and he shall be mindful of the
trust and confidence reposed in him." On the other hand, Canon 16 provides that
"a lawyer shall hold in trust all moneys and properties of his client that may come
into his possession." Hence, notwithstanding the absence of a specific provision
on the matter in the new Code, the Court, considering the abovequoted provisions
of the new Code in relation to Art. 1491 of the Civil Code, as well as the prevailing
jurisprudence, holds that the purchase by a lawyer of his client's property in
litigation constitutes a breach of professional ethics for which a disciplinary action
may be brought against him.
Respondent's next contention that the transfer of the properties was not really
implemented, because the land development agreement on which the transfer
depended was later rescinded, is untenable. Nowhere is it provided in the Transfer
of Rights that the assignment of the properties of the Fortunados to respondent
was subject to the implementation of the land development agreement. The last
paragraph of the Transfer of Rights provides that:
... for and in consideration of the legal services of ATTY. RAMON A. GONZALES,
Filipino, married to Lilia Yusay, and a resident of 23 Sunrise Hill, New Manila,
Quezon City, rendered to our entire satisfaction, we hereby, by these presents, do
transfer and convey to the said ATTY. RAMON A. GONZALES, his heirs,
successor, and assigns, one-half (1/2) of our rights and interests in the
abovedescribed property, together with all the improvements found therein [Annex
D of the Complaint, Record, p. 28; Emphasis supplied].
It is clear from the foregoing that the parties intended the transfer of the properties
to respondent to be absolute and unconditional, and irrespective of whether or not
the land development agreement was implemented.
Another misconduct committed by respondent was his failure to disclose to
complainant, at the time the land development agreement was entered into, that
the land covered by TCT No. T-1929 had already been sold at a public auction.
The land development agreement was executed on August 31, 1977 while the
public auction was held on June 30, 1971.
Respondent denies that complainant was his former client, claiming that his
appearance for the complainant in an anti-graft case filed by the latter against a
certain Gilbert Teodoro was upon the request of complainant and was understood
to be only provisional. Respondent claims that since complainant was not his
client, he had no duty to warn complainant of the fact that the land involved in their
land development agreement had been sold at a public auction. Moreover, the sale
was duly annotated at the back of TCT No. T-1929 and this, respondent argues,
serves as constructive notice to complainant so that there was no concealment on
his part.
The above contentions are unmeritorious. Even assuming that the certificate of
sale was annotated at the back of TCT No. T-1929, the fact remains that
respondent failed to inform the complainant of the sale of the land to Samauna
during the negotiations for the land development agreement. In so doing,
respondent failed to live up to the rigorous standards of ethics of the law profession
which place a premium on honesty and condemn duplicitous conduct. The fact that
complainant was not a former client of respondent does not exempt respondent
from his duty to inform complainant of an important fact pertaining to the land which
is subject of their negotiation. Since he was a party to the land development
agreement, respondent should have warned the complainant of the sale of the land
at a public auction so that the latter could make a proper assessment of the viability
of the project they were jointly undertaking. This Court has held that a lawyer
should observe honesty and fairness even in his private dealings and failure to do
so is a ground for disciplinary action against him [Custodio v. Esto, Adm. Case No.
1113, February 22, 1978, 81 SCRA 517].
Complainant also charges respondent with submitting to the court falsified
documents purporting to be true copies of an addendum to the land development
agreement.
Based on evidence submitted by the parties, the Solicitor General found that in the
document filed by respondent with the Court of First Instance of Quezon City, the
signatories to the addendum to the land development agreement namely, Ramon
A. Gonzales, Alfaro T. Fortunado, Editha T. Fortunado, Nestor T. Fortunado, and
Angel L. Bautista—were made to appear as having signed the original document
on December 9, 1972, as indicated by the letters (SGD.) before each of their
names. However, it was only respondent Alfaro Fortunado and complainant who
signed the original and duplicate original (Exh. 2) and the two other parties, Edith
Fortunado and Nestor Fortunado, never did. Even respondent himself admitted
that Edith and Nestor Fortunado only signed the xerox copy (Exh. 2-A) after
respondent wrote them on May 24, 1973, asking them to sign the said xerox copy
attached to the letter and to send it back to him after signing [Rejoinder to
Complainant's Reply, pp. 4-6; Rollo, pp. 327-329]. Moreover, respondent
acknowledged that Edith and Nestor Fortunado had merely agreed by phone to
sign, but had not actually signed, the alleged true copy of the addendum as of May
23, 1973 [Respondent's Supplemental Motion to Refer this Case to the Integrated
Bar of the Philippines, p. 16]. Thus, when respondent submitted the alleged true
copy of the addendum on May 23, 1973 as Annex "A" of his Manifestation filed
with the Court of First Instance of Quezon City, he knowingly misled the Court into
believing that the original addendum was signed by Edith Fortunado and Nestor
Fortunado. Such conduct constitutes willful disregard of his solemn duty as a
lawyer to act at all times in a manner consistent with the truth. A lawyer should
never seek to mislead the court by an artifice or false statement of fact or law
[Section 20 (d), Rule 138, Revised Rules of Court; Canon 22, Canons of
Professional Ethics; Canon 10, Rule 10.01, Code of Professional Responsibility].
Anent the first charge of complainant, the Solicitor General found that no
impropriety was committed by respondent in entering into a contingent fee contract
with the Fortunados [Report and Recommendation, p. 8; Record, p. 394]. The
Court, however, finds that the agreement between the respondent and the
Fortunados, which provides in part that:
We the [Fortunados] agree on the 50% contingent fee, provided, you [respondent
Ramon Gonzales] defray all expenses, for the suit, including court fees.
Alfaro T. Fortunado [signed]
Editha T. Fortunado [signed]
Nestor T. Fortunado [signed]
CONFORME
Ramon A. Gonzales [signed]
[Annex A to the Complaint, Record, p. 4].
is contrary to Canon 42 of the Canons of Professional Ethics which provides that
a lawyer may not properly agree with a client to pay or bear the expenses of
litigation. [See also Rule 16.04, Code of Professional Responsibility]. Although a
lawyer may in good faith, advance the expenses of litigation, the same should be
subject to reimbursement. The agreement between respondent and the
Fortunados, however, does not provide for reimbursement to respondent of
16
litigation expenses paid by him. An agreement whereby an attorney agrees to pay
expenses of proceedings to enforce the client's rights is champertous [JBP Holding
Corp. v. U.S. 166 F. Supp. 324 (1958)]. Such agreements are against public policy
especially where, as in this case, the attorney has agreed to carry on the action at
his own expense in consideration of some bargain to have part of the thing in
dispute [See Sampliner v. Motion Pictures Patents Co., et al., 255 F. 242 (1918)].
The execution of these contracts violates the fiduciary relationship between the
lawyer and his client, for which the former must incur administrative sanctions.
The Solicitor General next concludes that respondent cannot be held liable for
acting as counsel for Eusebio Lopez, Jr. in Civil Case No. Q-15490 while acting as
counsel for the Fortunados against the same Eusebio Lopez, Jr. in Civil Case No.
Q-15143. The Court, after considering the record, agrees with the Solicitor
General's findings on the matter. The evidence presented by respondent shows
that his acceptance of Civil Case No. Q-15490 was with the knowledge and
consent of the Fortunados. The affidavit executed by the Fortunados on June 23,
1976 clearly states that they gave their consent when respondent accepted the
case of Eusebio Lopez, Jr. [Affidavit of Fortunados, dated June 23, 1976; Rollo, p.
198]. One of the recognized exceptions to the rule against representation of
conflicting interests is where the clients knowingly consent to the dual
representation after full disclosure of the facts by counsel [Canon 6, Canons of
Professional Ethics; Canon 15, Rule 15.03, Code of Professional Responsibility].
Complainant also claims that respondent filed several complaints against him
before the Court of First Instance and the Fiscal's Office of Quezon City for the
sole purpose of harassing him.
The record shows that at the time of the Solicitor General's investigation of this
case, Civil Case No. Q-18060 was still pending before the Court of First Instance
of Quezon City, while the complaints for libel (I.S. No. 76-5912) and perjury (I.S.
No. 5913) were already dismissed by the City Fiscal for insufficiency of evidence
and lack of interest, respectively [Report and Recommendation, pp. 16-17; Rollo,
pp. 402-403]. The Solicitor General found no basis for holding that the complaints
for libel and perjury were used by respondent to harass complainant. As to Civil
Case No. Q-18060, considering that it was still pending resolution, the Solicitor
General made no finding on complainants claim that it was a mere ploy by
respondent to harass him. The determination of the validity of the complaint in Civil
Case No. Q-18060 was left to the Court of First Instance of Quezon City where the
case was pending resolution.
The Court agrees with the above findings of the Solicitor General, and accordingly
holds that there is no basis for holding that the respondent's sole purpose in filing
the aforementioned cases was to harass complainant.
Grounds 6, 8 and 9 alleged in the complaint need not be discussed separately
since the above discussion on the other grounds sufficiently cover these remaining
grounds.
The Court finds clearly established in this case that on four counts the respondent
violated the law and the rules governing the conduct of a member of the legal
profession. Sworn to assist in the administration of justice and to uphold the rule
of law, he has "miserably failed to live up to the standards expected of a member
of the Bar." [Artiaga v. Villanueva, Adm. Matter No. 1892, July 29, 1988, 163 SCRA
638, 647]. The Court agrees with the Solicitor General that, considering the nature
of the offenses committed by respondent and the facts and circumstances of the
case, respondent lawyer should be suspended from the practice of law for a period
of six (6) months.
WHEREFORE, finding that respondent Attorney Ramon A. Gonzales committed
serious misconduct, the Court Resolved to SUSPEND respondent from the
practice of law for SIX (6) months effective from the date of his receipt of this
Resolution. Let copies of this Resolution be circulated to all courts of the country
for their information and guidance, and spread in the personal record of Atty.
Gonzales.
SO ORDERED.
87
RAUL H. SESBRENO, petitioner,
vs.
HONORABLE COURT OF APPEALS and HERMILO RODIS, SR., respondents.
Private respondents Hermilo Rodis, Sr., together with Douglas Sandiego and
Ricardo Silverio, Sr., was charged with estafa before the Regional Trial Court,
Branch 20, Cebu, in an information docketed as Criminal Case No. CU-10568,
which reads as follows:
That on or about the 9th day of February, 1981, and for sometime prior and
subsequent thereto, in the City of Cebu, Philippines, and within the jurisdiction of
this Honorable Court, the said accused, conniving and confederating together and
mutually helping one another, having received from Atty. Raul H. Sesbreno the
sum of P300,000.00 as money market placement for 32 days at 20% interest with
said corporation or a maturity date of March 13, 1981, with the obligation on their
part to immediately account for and turn over to said Atty. Raul H. Sesbreno the
aforesaid sum of money including the 20% interest upon maturity, or the total sum
of P305,333.33, the said accused, once in possession of said sum of money, far
from complying with their obligation, with deliberate intent, with intent of gain and
of defrauding the herein complainant, did then and there misappropriate, misapply
and convert into their own personal use and benefit the same, and despite
repeated demands made upon them by Atty. Raul H. Sesbreno, they have failed
and refused and up to the present time still fail and refuse to comply with their
obligation, to the damage and prejudice of Atty. Raul H. Sesbreno, in the
aforementioned sum of P300,000.00 Philippine Currency (Rollo, p. 80).
Respondent Rodis moved to quash the information on the ground that the
Securities and Exchange Commission (SEC), not the regular courts, had
jurisdiction over the offense charged and that the facts stated herein did not
constitute an offense (Record [Folio No. I], p. 309). The trial court denied the
motion and private respondent elevated the case to the then Intermediate
Appellate Court on a petition for certiorari docketed as AC-G.R. SP No. 15448.
On August 16, 1983, the appellate court dismissed the petition after finding no
grave abuse of discretion on the part of the trial court in denying the motion to
quash (Record [Folio No. I], p. 633). The motion for reconsideration was, likewise,
denied. Thus, private respondent was, likewise, denied. Thus, private respondent
filed a petition for review on certiorari with this Court, docketed as G.R. No. 65477.
On February 6, 1984, the petition was denied.
Hence, trial ensued in the criminal case. However, after the prosecution had rested
its case, private respondent filed a motion to dismiss on demurrer to evidence
based on the core proposition that there was no criminal offense of estafa from the
non-payment of a money market placement (Record [Folio No. II], p. 210). The
motion alleged that herein petitioner had also filed a similar complaint against
Elizabeth de Villa involving the same money market placement before the City
Fiscal of Cebu; but, upon review of the complaint, then Minister of Justice Estelito
Mendoza directed the dismissal of the complaint on the ground that a money
market placement partook of the nature of a loan and therefore no criminal liability
for estafa could arise from non-payment thereof.
On March 13, 1985, the trial court denied the motion to dismiss (Record [Folio No.
II], p. 310). On June 21, 1985, it issued an order stating that private respondent
had waived his right to present evidence by his dilatory motions to postpone the
trial of the case (Ibid., p. 329).
Private respondent then filed a petition for certiorari and prohibition before the
Intermediate Appellate Court under Docket No. AC-G.R. SP No. 6315 (Ibid., p.
365) assailing the Order of March 13, 1985 as tainted with grave abuse of
discretion amounting to lack or excess of jurisdiction.
On December 29, 1987, the appellate court rendered a decision based on Perez
v. Court of Appeals, 127 SCRA 636 (1984), upholding private respondent's
contention that a money market placement is in the nature of a loan which entails
the transfer of ownership of the money so invested and therefore the liability for its
return is civil in nature (Rollo, p. 79). The dispositive portion of the decision reads:
WHEREFORE, finding the present petition to be impressed with merit, the same
petition to be impressed with merit, the same is accordingly GRANTED, and the
Order of March 13, 1985, as well as that of June 21, 1985 in Criminal Case No.
CU-10568, are (sic) hereby set aside. The respondent Judge is directed to issue
in lieu thereof an appropriate order (i) granting petitioner's motion to dismiss on
demurrer to evidence; (ii) dismissing Criminal Case No. CU-10568 in due course;
and (iii) declaring mooted all acts, orders and processes made and done therein
during the pendency of this petition (Rollo, p. 86).
Upon a motion for the reconsideration of said decision, the Court of Appeals
modified the dispositive portion of the decision as follows:
WHEREFORE, finding the present petition to be impressed with merit, the same
is accordingly GRANTED, and the Order of March 13, 1985 in Criminal Case No.
CU-10568, is hereby set aside. The respondent Judge is directed to issue in lieu
thereof an appropriate order (i) granting petitioner's motion to dismiss on demurrer
to evidence; (ii) dismissing Criminal Case No. CU-10568 as against petitioner
Hermilo Rodis, Sr. only; and (iii) directing respondent judge to determine the civil
liability, if any, of petitioner Hermilo Rodis, Sr. to private respondent Raul H.
Sesbreno from the evidence extant in the record of said case (CU-10568) (Rollo,
p. 117).
17

Consequently, petitioner interposed the instant petition alleging that the Court of
Appeals gravely erred in:
a. Taking cognizance over CA-GR SP No. 06315 even if it has NO
JURISDICTION over the issue raised by the petition for certiorari filed therein;
b. Deciding CA-GR SP No. 06315 in a way probably not in accord with
law or with the applicable decisions of this Honorable Supreme Court (Rollo, p.
10).
On the issue of jurisdiction, petitioner contends that by the filing of a motion to
dismiss on demurrer to evidence, private respondent, in effect, admitted the truth
of the allegations in the information, as well as the evidence presented by the
prosecution to support said allegations. Therefore, the only issue raised by private
respondent before the Court of Appeals, i.e., whether or not he can be held liable
for estafa under the facts obtaining in the case, is purely a question of law for which
said appellate court had no jurisdiction (Rollo, pp. 12-13).
In Bernardo v. Court of Appeals, 216 SCRA 224 (1992), this Court clarified the
distinction between a question of law and a question of fact in this wise:
. . . . As distinguished from a question of law which exists "when the doubt or
difference arises as to what the law is on certain state of facts" — "there is a
question of fact when the doubt or difference arises as to the truth or the falsehood
of alleged facts;" or when the "query necessarily invites calibration of the whole
evidence considering mainly the credibility of witnesses, existence and relevancy
of specific surrounding circumstances, their relation to each other and to the whole
and the probabilities of the situation."
An examination of the petition filed before the Court of Appeals disclosed that
indeed no question of fact was raised. What private respondent asserted therein
was that the facts as alleged and proved by petitioner did not constitute a criminal
offense. Clearly then, the only issue to be resolved by the Court of Appeals, which
it did resolve, was whether private respondent could be held liable for estafa under
the facts obtaining in the criminal case. This certainly is a question of law that
should fall within the jurisdiction of this Court.
Petitioner did not assail the jurisdiction of the Court of Appeals during the pendency
of his petition in AC-G.R. SP No. 63151. As a matter of fact, he actively participated
in the proceedings before said appellate court. While it is true that jurisdiction over
the subject matter of a case may be raised at any time of the proceedings, this rule
presupposes that laches or estoppel has not supervened. In this regard, Banaga
v. Commission on the Settlement of Land Problems, 181 SCRA 599, 608-609
(1990) is most enlightening. The Court therein stated:
This Court has time and again frowned upon the undesirable practice of party
submitting his case for decision and then accepting the judgment, only if favorable
when adverse. Here, a party may be estopped or barred from raising the question
of jurisdiction for the first time in a petition before the Supreme Court when it failed
to do so in the early stages of the proceedings. This principle should deter those
who are disposed to tifle with the courts by taking inconsistent positions contrary
to the elementary principles of right dealing and good faith (Tijam v. Sibonghanoy,
No. L-21450, April 15, 1968, 23 SCRA 29; Capilitan v. dela Cruz, Nos. L-29536-
37, February 28, 1974, 55 SCRA 706; Marquez v. Secretary of Labor, G.R. 80685,
March 16, 1989). . . .
On the pivotal issue of whether or not private respondent may be held liable for
estafa under the facts obtaining in the trial court, respondent court held that private
respondent's liability, if any, is only civil. The nature of a money market transaction
is explained by the Court in Perez v. Court of Appeals (supra, pp. 645-646) as
follows:
. . . .What is involved here in a money market transaction. As defined by Lawrence
Smith, "the money market is a market dealing in standardized short-term credit
instruments (involving large amounts) where lenders and borrowers do not deal
directly with each other but through a middle man or dealer in the open market." It
involves "commercial papers" which are instruments "evidencing indebtedness of
any person or entity . . . which are issued, endorsed, sold or transferred or in any
manner conveyed to another person or entity, with or without recourse." The
fundamental function of the money market device in its operation is to match and
bring together in a most impersonal manner both the "fund users" and the "fund
suppliers." The money market is an "impersonal market", free from personal
considerations. The market mechanism is intended "to provide quick mobility of
money and securities."
The impersonal character of the money market device overlooks the individuals or
entities concerned. The issuer of a commercial paper in the money market
necessarily knows in advance that it would be expeditiously transacted and
transferred to any investor/lender without need of notice to said issuer. In practice,
no notification is given to the borrower or issuer of commercial paper of the sale or
transfer to the investor.
The Court of Appeals, therefore, correctly ruled that a money market transaction
partakes of the nature of a loan and therefore "nonpayment thereof would not give
rise to criminal liability for estafa through misappropriation or conversion." Citing
Yam v. Malik, 94 SCRA 30 (1979), the Court of Appeals noted that private
respondent or Philfinance was not obliged under the money market transaction to
return the same money he or the corporation had received from petitioner. In fact,
the Court of Appeals noted that petitioner admitted on the witness stand that he
had "invested" his money; that "he was not concerned about the same money
because what is important is the same amount will be returned to me plus its
earnings, because naturally when you give the money with the same serial
numbers and you entrust it for investment purposes, when it is invested and there
are returns, the same money with the same serial numbers will not be returned to
you;" and that private respondent would be "held liable to me in case of their failure
to account" for the investment (Rollo, p. 83).
In money market placement, the investor is a lender who loans his money to a
borrower through a middleman or dealer. Petitioner here loaned his money to a
borrower through Philfinance. When the latter failed to deliver back petitioner's
placement with the corresponding interest earned at the maturity date, the liability
incurred by Philfinance was a civil one. As such, petitioner could have instituted
against Philfinance before the ordinary courts a simple action for recovery of the
amount he had invested and he could have prayed therein for damages (Lim Sio
Bio v. Court of Appeals, 221 SCRA 307 [1993]; Orosa, Jr., v. Court of Appeals,
193 SCRA 391 [1991]; Manila Electric Company v. Genbancor Development
Corporation, 72 SCRA 249 [1976]).
It appears, however, that petitioner did not even implead Philfinance in the
complaint for damages arising from the nonreturn of investment with respect to the
same money market placement involved herein, which he eventually filed against
Delta Motors Corporation and Pilipinas Bank before the Regional Trial Court of
Cebu City on September 28, 1982. The said complaint having been dismissed for
lack of merit, petitioner appealed to the Court of Appeals which, on March 21, 1989,
affirmed the dismissal order. The Court of Appeals held that Philfinance is "solely
and legally obligated to return the investment of plaintiff, together with its earnings,
and to answer all the damages plaintiff has suffered incident thereto." Petitioner
thereafter filed a petition for review on certiorari, which this Court docketed as G.R.
No. 89252.
On May 24, 1993, the Court, through Associate Justice Feliciano, rendered a
decision in G.R. No. 89252 ordering Pilipinas Bank to pay petitioner the amount of
P304,533.33 in damages plus legal interest thereon at the rate of six percent (6%)
per annum counted from April 2, 1981. Pilipinas Bank was the custodian-
depositary of DMC PN No. 2731 evidencing petitioner's money market placement.
In holding Pilipinas Bank liable for damages for breach of duty, the Court said:
. . . . By failing to deliver the Note to the petitioner as depositor-beneficiary of the
thing deposited, Pilipinas effectively and unlawfully deprived petitioner of the Note
deposited with it. Whether or not Pilipinas itself benefitted from such conversion or
unlawful deprivation inflicted upon petitioner, is of no moment for present
purposes. Prima facie, the damages suffered by petitioner consisted of
P304,533.33, the portion of the DMC PN No. 2731 assigned to petitioner but lost
by him reason of discharge of the Note by compensation, plus legal interest of six
percent (6%) per annum counting from 14 March 1981.
The conclusion we have here reached is, of course, without to such right of
reimbursement as Pilipinas may have vis-a-vis Philfinance (G.R. No. 89252, Rollo,
pp. 295-296).
Petitioner's recovery of his investment and the dismissal of the criminal aspect of
the case he had filed against private respondent as a consequence of this decision
notwithstanding, he still has an opportunity to hold private respondent liable in
Criminal Case No. CU-10568. In People v. Tugbang, 196 SCRA 341 (1991), the
Court categorically pronounced that ". . . an accused acquitted of a criminal charge
may nevertheless be held in the same case civilly liable where the facts
established by the evidence so warrants."
WHEREFORE, the petition is DENIED and the Decision of the Court of Appeals,
as modified by its Resolution of May 27, 1988, is AFFIRMED in toto.
SO ORDERED.
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