Kenrick R.

Lanchinebre
LLB 1
Legal Research

Atty. Ramon borrowed his client's (Menchu) land title. After eight months,
Menchu demanded its return but he failed to comply and changed his
residence. After Menchu tracked him down, she confronted him about the
title. He then offered to just buy the property and gave her five checks for it
but these bounced. Charged with malpractice, Atty. Ramon answered that his
license to practice law cannot be in issue. He merely incurred civil liability
for a failed transaction. Will the malpractice action prosper?
ANSWER:
Yes, he having taken advantage of Menchu who was not fully protected and
had no independent advice.
DISCUSSIONS
Legal malpractice happens when an attorney handles a case inappropriately
due to negligence or with intent to harm and causes damages to a client. To
prevail in a legal malpractice lawsuit in most jurisdictions, you will need to
prove an attorney-client relationship between you and the lawyer, a breach
of the duty to provide skillful and competent representation (negligence),
causation, and a financial loss.
Proving the first element requires you to show that an attorney gave or
promised to give you legal advice or assistance, and therefore created an
attorney-client relationship in which you were owed competent and skillful
representation. Usually, this relationship is created by a written contract or
agreement, but it also can be implied from an attorneys actions in
connection with the clients actions. In some states, if a client has a
reasonable belief that there is an attorney-client relationship based on an
attorneys representations, that is enough to find an attorney-client
relationship. The nature of this element could vary depending on the ethics
rules of the State Bar in your state, and occasionally attorneys do contest that
there was such a relationship.
Every case is different, but legal malpractice claims usually fall under three
categories:
Negligence
Breach of fiduciary duty
Breach of contract
Negligence happens when your attorney fails to use the skill and care
normally expected of a competent attorney. In performing legal services, an
attorney must exercise the care, skill, and diligence that are commonly
exercised by other attorneys in similar conditions and circumstances. An
attorney can never insure a particular outcome, and a failure to choose the
best strategic course of action does not necessarily amount to a breach of
duty.

Breach of fiduciary duty usually occurs when your lawyer has a conflict of
interest that harms you in some way. Examples of breach of fiduciary duty
include:
Representing another client to your disadvantage (such as representing
another defendant in the same lawsuit)
Having financial or social ties or troubles that prevent your lawyer
from representing you to your best advantage
Improper sexual advances toward you
Lying to you about important case information
Not telling you about settlement offers
Settling your case for less than it was worth without your approval
Inappropriately using money belonging to you
In many cases, an attorney chooses a strategy in good faith, and at the time
this strategy is chosen it is reasonable. However, if a reasonably prudent
attorney with the skill and competence level necessary to provide the same
legal service would not make the decision made by the attorney, there may
have been a breach of duty. It is also important to note that a simple ethics
violation is rarely the basis of a legal malpractice action, even though it is a
breach of duty.
Some common kinds of malpractice include failure to meet a filing or
service deadline, failure to sue within the statute of limitations, failure to
perform a conflicts check, failure to apply the law correctly to a clients
situation, abuse of a clients trust account, such as commingling trust
account funds with an attorneys personal funds, and failure to return
telephone calls.
In addition to a civil legal malpractice lawsuit, in cases of fraud or theft, the
attorney can be reported to the State Bar or criminally prosecuted. The state
bar may impose disciplinary sanctions, such as fines or disbarment.
When you reach the point of needing an attorney's expertise, it usually
means that some situation -- whether at work, in the neighborhood, with the
family, or elsewhere -- has gotten too complex to resolve on your own. You
turn to a lawyer and trust she will help. But what do you do when the lawyer
makes things worse instead of better? If you've lost confidence in your
attorney and are considering suing for malpractice, here are some things you
should know.
Proving Malpractice Isn't Easy. If your attorney made serious errors, you
may consider suing the lawyer for malpractice. Unfortunately, it is very hard
to win a malpractice case. Malpractice means that the lawyer failed to use
the ordinary skill and care that would be used by other lawyers in handling a
similar problem or case under similar circumstances. In other words, it's not
malpractice just because your lawyer lost your case.

To win a malpractice case against an attorney, you must prove four basic
things:

duty -- that the attorney owed you a duty to act properly

breach -- that the attorney breached the duty: she was negligent, she
made a mistake, or she did not do what she agreed to do

causation -- that this conduct hurt you financially, and

damages -- that you suffered financial losses as a result.

In practical terms, to win a malpractice case, you must first prove that your
attorney made errors in how she handled your case. Then you must show
that you would have won the underlying case that the lawyer mishandled.
(This second part is not required in Ohio.) Finally, you will have to show
that if you had won the underlying case, you would have been able to collect
from the defendant.
Example: Dorian is hit by a car while he is walking across the street. He
hires a lawyer who doesn't file the lawsuit on time. As a result, the judge
tosses out Dorian's case and he is unable to refile it. Dorian sues his lawyer
for malpractice. He can prove duty (he signed a representation
agreement with the lawyer). He can prove breach (the lawyer failed to file
the lawsuit within the proper time). He can prove causation (witnesses and a
police report attest to the driver's liability). However, to prove that the
lawyer's misconduct harmed him financially, Dorian also must show that the
driver had money or insurance so that Dorian could have collected the
judgment if he'd won.
When Is a Bad Job Malpractice?
Here are some common complaints that clients have about their lawyers,
along with an analysis of whether the lawyer's action (or inaction, as the case
may be) constitutes malpractice. (For more tips on dealing with a deadbeat
attorney, read What to Do When You're Mad at Your Lawyer.)
Your lawyer stops working on your case. The longer your attorney ignores
you and your case, the more likely it is to amount to malpractice. You must
act quickly to see that your case is properly handled and get another lawyer
if necessary. Writing or faxing a letter expressing your concerns and asking
for a meeting is a good first step.

Your case is thrown out of court because your lawyer did no work. This
may be malpractice. Your difficulty will be in proving not only that your
lawyer mishandled the case, but that if handled correctly, you could have
won and collected a judgment. If you are successful and obtain a judgment
against your lawyer, then the lawyer is responsible for whatever money you
could have won had the case been properly handled.
Your lawyer recommends a settlement for far less money than she
originally estimated your case was worth. This is not malpractice. Your
lawyer may have given you an inflated estimate of the value of your case to
encourage you to hire her.
Get your file from your lawyer and get a second opinion on your case. If
another reputable lawyer believes you are being advised to settle for too
little, consider changing lawyers.
Your lawyer settles your case without your authorization. This is
malpractice, because a lawyer may not agree to a settlement without the
client's approval. To succeed in a malpractice case, however, you will have
to prove that the settlement your lawyer entered into was for less than your
case was worth.
You see your lawyer socializing with the lawyer for your opponent. This
is not malpractice or a breach of attorney ethics. There is nothing ethically
wrong with opposing attorneys playing tennis, bridge, or golf, or enjoying
other common social interactions.
If the opposing attorneys talk about your case (on the tennis court or
anywhere else), however, and your lawyer lets slip something that you said
in confidence, that would be a clear violation of your attorney's duty to you.
You suspect that your lawyer has misused money you paid as
a retainer. Stealing a client's money is malpractice, because your lawyer has
a duty to use your funds only for your case.
If you seriously suspect your lawyer has misused any money he holds for
you in trust, complain to your state's attorney regulatory agency right away.
Although regulation of lawyers is lax in most states, complaints about
stealing clients' money are almost always taken seriously, so you should get
a prompt response. All states, except Maine, New Mexico and Tennessee,
have funds to reimburse clients when lawyers are caught stealing.

If your complaint to the state attorney regulatory agency is unsuccessful, you

may also consider suing the lawyer for malpractice in order to get the money
back.
LEGAL BASIS
Respondents act of having borrowed the title to the land of complainant, his
presumed use of the said title for his personal gain, his failure to return the
same despite repeated demands and worse, his issuance of five checks in
exchange for the said land title which bounced, constitute gross misconduct
for which he must be disciplined. In this connection , Rule 16.04 of the Code
of Professional Responsibility is unequivocal. It states:
Rule 16.04 - A lawyer shall not borrow money from his client unless the
clients interests are fully protected by the nature of the case or by
independent advice. Neither shall a lawyer lend money to a client except,
when in the interest of justice, he has to advance necessary expenses in a
legal matter he is handling for the client.
The Canons of Professional Ethics is even more explicit:
"The lawyer should refrain from any action whereby for his
personal benefit or gain he abuses or takes advantage of the
confidence reposed in him by his client.
"Money of the client collected for the client or other trust
property coming into the possession of the lawyer should be
reported and accounted for promptly and should not under any
circumstances be commingled with his own or be used by him."

In the case of Judge Adoracion G. Angeles v. Atty. Thomas Uy, Jr. this Court
held:
The relationship between a lawyer and a client is highly fiduciary; it requires
a high degree of fidelity and good faith. It is designed to remove all such
temptation and to prevent everything of that kind from being done for the
protection of the client (Agpalo, Legal Ethics, 1992 ed., p. 188).
Thus, Canon 16 of the Code of Professional Responsibility provides that a
lawyer shall hold in trust all moneys and properties of his client that may
come into his possession. Furthermore, Rule 16.01 of the Code also states:

Rule 16.01 - A lawyer shall account for all money or property collected or
received for or from the client.
The Canons of Professional Ethics is even more explicit:
The lawyer should refrain from any action whereby for his personal benefit
or gain he abuses or takes advantages of the confidence reposed in him by
his client.
Money of the client collected for the client or other trust property coming
into the possession of the lawyer should be reported and accounted
for promptly and should not under any circumstances be commingled with
his own or be used by him.
This Court, in several cases, has time and again ruled that the fiduciary duty
of a lawyer and advocate is what places the law profession in a unique
position of trust and confidence, and distinguishes it from any other calling.
Once this trust and confidence is betrayed, the faith of the people not only in
the individual lawyer but also in the legal profession as a whole is eroded.
To this end, all members of the bar are strictly required to at all times
maintain the highest degree of public confidence in the fidelity, honesty and
integrity of their profession.
Canon 15 of the Code of Professional Responsibility mandates that a lawyer
should observe candor, fairness and loyalty in all his dealings and
transactions with his client.
A lawyer may be disciplined for any conduct, in his professional or private
capacity, that renders him unfit to continue to be an officer of the court.
Every lawyer should act and comport himself in such a manner that would
promote public confidence in the integrity of the legal profession.
Canon 7 of the Code of Professional Responsibility commands all lawyers at
all times to uphold the dignity and integrity of the legal profession.
A deceitful act, in particular, constitutes a violation of Rule 10.01 of the
Code of Professional Responsibility, which provides:
A lawyer shall not do any falsehood nor consent to the doing of any in court;
nor shall he mislead, or allow the court to be misled by any artifice. The rule
is intended to safeguard the lawyers independence of mind so that the free
exercise of his judgment may not be adversely affected. It seeks to ensure
his undivided attention to the case he is handling as well as his entire
devotion and fidelity to the clients cause. If the lawyer acquires anything
from his client in connection with the clients case, the lawyer in effect

acquires an interest in the subject matter of the case or an additional stake in

its outcome. Either of these circumstances may lead the lawyer to consider
his own recovery rather than that of his client, or to accept a settlement
which may take care of his interest in the verdict to the prejudice of the
client in violation of his duty of undivided fidelity to the clients cause.
In the case at bench, the complaint stemmed from the use by respondent
lawyer of his client's property. He had, indeed, come into possession of
valuable pieces of jewelry which he presented as security in a contract of
pledge. Complainant voluntarily and willingly delivered her jewelry worth
Pl35,000.00 to respondent lawyer who meant to borrow it and pawn it
thereafter. This act alone shows respondent lawyer's blatant disregard of
Rule 16.04. Complainant's acquiescence to the "pawning" of her jewelry
becomes immaterial considering that the CPR is clear in that lawyers are
proscribed from borrowing money or property from clients, unless the
latter's interests are fully protected by the nature of the case or by
independent advice. Here, respondent lawyer's act of borrowing does not
constitute an exception. Respondent lawyer used his client's jewelry in order
to obtain, and then appropriate for himself, the proceeds from the pledge. In
so doing, he had abused the trust and confidence reposed upon him by his
client. That he might have intended to subsequently pay his client the value
of the jewelry is inconsequential. What deserves detestation was the very act
of his exercising influence and persuasion over his client in order to gain
undue benefits from the latter's property. The Court has repeatedly
emphasized that the relationship between a lawyer and his client is one
imbued with trust and confidence. And as true as any natural tendency goes,
this "trust and confidence" is prone to abuse. 1 The rule against borrowing of
money by a lawyer from his client is intended to prevent the lawyer from
taking advantage of his influence over his client. 2 The rule presumes that the
client is disadvantaged by the lawyer's ability to use all the legal
maneuverings to renege on his obligation.3 Suffice it to say, the borrowing of
money or property from a client outside the limits laid down in the CPR is
an unethical act that warrants sanction.
Section 27, Rule 138 of the Rules of Court provides:
SEC. 27. Disbarment or suspension of attorneys by Supreme Court; grounds
therefor. A member of the bar may be disbarred or suspended from his office
as attorney by the Supreme Court for any deceit, malpractice, or other gross
misconduct in such office, grossly immoral conduct, or by reason of his
conviction of a crime involving moral turpitude, or for any violation of the
1 Spouses Concepcion v. Dela Rosa, A.C. No. 10681, February 3, 2015
2 Junia v. Grupo, 423 Phil. 808, 816 (2001).
3 Frias v. Lozada, 513 Phil. 512, 521-522 (2005)

oath which he is required to take before admission to practice, or for a

willful disobedience of any lawful order of a superior court, or for corruptly
or wilfully appearing as an attorney for a party to a case without authority so
to do. The practice of soliciting cases at law for the purpose of gain, either
personally or through paid agents or brokers, constitutes malpractice.
The question now arises as to the proper penalty to be imposed.
As to the propriety of imposing the supreme penalty of disbarment, the rule
is that disbarment is meted out only in clear cases of misconduct that
seriously affect the standing and character of the lawyer as an officer of the
court. While we will not hesitate to remove an erring attorney from the
esteemed brotherhood of lawyers, where the evidence calls for it, we will
also not disbar him where a lesser penalty will suffice to accomplish the
desired end. In this case, we find suspension to be a sufficient sanction
against respondent - suspension being primarily intended not as a
punishment, but as a means to protect the public and the legal profession.
The following cases rendered by this Court and the penalties imposed
thereto where Rule 16 of the Code of Professional Responsibility finds
application are enlightening.
In the earlier case of Aya v. Bigornia, the Court ruled that money collected
by a lawyer in favor of his clients must be immediately turned over to them
and failure to do so merits a penalty of suspension for six months.
In Daroy v. Legaspi, the Court held that lawyers are bound to promptly
account for money or property received by them on behalf of their clients
and failure to do constitutes professional misconduct warranting disbarment.
In the case of Obia v. Catimbang, respondent Atty. Basilio M. Catimbang
was ordered indefinitely suspended for failure to return the amount of
P11,000 entrusted to him.
In Dumadag v. Lumaya, the Court likewise ordered the indefinite suspension
of Atty. Ernesto L. Lumaya for his receipt of and failure to deliver the
amount of P4,344 to his client, complainant in the case.
In the case of Burbe v. Magulta, this Court imposed upon Atty. Magulta the
penalty of suspension for one (1) year for his conversion into legal fees the
filing fee entrusted to him by his client.

In the case of Nuez v. Ricafort, this Court ordered the indefinite suspension
of Atty. Romulo Ricafort for his act of issuing bad checks in satisfaction of
an alias writ of execution for money judgment rendered against him.
Therein, the Court held:
There is no need to stretch ones imagination to arrive at an inevitable
conclusion that respondent gravely abused the confidence that complainant
reposed in him and committed dishonesty when he did not turn over the
proceeds of the sale of her property. Worse, with palpable bad faith, he
compelled the complainant to go to court for the recovery of the proceeds of
the sale and, in the process, to spend money, time and energy therefore.
Then, despite his deliberate failure to answer the complaint resulting in his
having been declared in default, he appealed from the judgment to the Court
of Appeals. Again, bad faith attended such a step because he did not pay the
docket fee despite notice. Needless to state, respondent wanted to prolong
the travails and agony of the complainant and to enjoy the fruits of what
rightfully belongs to the latter. Unsatisfied with what he had already unjustly
and unlawfully done to complainant, respondent issued checks to satisfy the
alias writ of execution. But, remaining unrepentant of what he had done and
in continued pursuit of a clearly malicious plan not to pay complainant of
what had been validly and lawfully adjudged by the court against him,
respondent closed the account against which the checks were drawn. There
was deceit in this. Respondent never had the intention of paying his
obligation as proved by the fact that despite the criminal cases for violation
of B.P. Blg. 22, he did not pay the obligation.
While the case of Nuez v. Ricafort[37] holds some similarity to the present
case, it is material to note that this is the first time that a complaint of this
nature has been filed against the respondent. Likewise, unlike the Nuez case,
the criminal cases filed by the complainant have not been finally disposed
of, hence, no conviction against respondent was ever obtained. On all fours
to this case is the case of Lao v. Medel. Respondent Atty. Robert W. Medel,
who issued four checks which were subsequently dishonored totaling
twenty-two thousand pesos (P22,000) in payment of his outstanding
obligation, was ordered suspended for one year by this Court in line with the
cases of Co. v. Bernardino, Ducat, Jr. v. Villalon, Jr., andSaburnido v.
Madroo.
Finally, in the most recent case of Isidra Barrientos, et al. v. Atty. Elerizza A.
Libiran-Meteoro, this Court imposed upon respondent Atty. Elerizza
Libiran-Meteoro the penalty of suspension for six (6) months for having

issued several checks to the complainants in payment of a pre-existing debt

without sufficient funds

References:
http://www.nolo.com/
www.justia.com
legal-malpractice.lawyers.com
Bar exam 2011