DOMINADOR P. BURBE, complainant, vs. ATTY. ALBERTO C.
00,
MAGULTA, respondent.
DECISION
PANGANIBAN, J.:
After agreeing to take up the cause of a client, a lawyer owes fidelity
to both cause and client, even if the client never paid any fee for the
attorney-client relationship. Lawyering is not a business; it is a profession in
which duty to public service, not money, is the primary consideration.
The Case
Before us is a Complaint for the disbarment or suspension or any
other disciplinary action against Atty. Alberto C. Magulta. Filed by
Dominador P. Burbe with the Commission on Bar Discipline of the
Integrated Bar of the Philippines (IBP) on June 14, 1999, the Complaint is
accompanied by a Sworn Statement alleging the following:
xxxxxxxxx
That in connection with my business, I was introduced to Atty. Alberto C.
Magulta, sometime in September, 1998, in his office at the Respicio,
Magulta and Adan Law Offices at 21-B Otero Building, Juan de la Cruz
St., Davao City, who agreed to legally represent me in a money claim and
possible civil case against certain parties for breach of contract;
That consequent to such agreement, Atty. Alberto C. Magulta prepared for
me the demand letter and some other legal papers, for which services I
have accordingly paid; inasmuch, however, that I failed to secure a
settlement of the dispute, Atty. Magulta suggested that I file the necessary
complaint, which he subsequently drafted, copy of which is attached as
Annex A, the filing fee whereof will require the amount of Twenty Five
Thousand Pesos (P25,000.00);
That having the need to legally recover from the parties to be sued I, on
January 4, 1999, deposited the amount of P25,000.00 to Atty. Alberto C.
Magulta, copy of the Receipt attached as Annex B, upon the instruction
that I needed the case filed immediately;
That a week later, I was informed by Atty. Alberto C. Magulta that the
complaint had already been filed in court, and that I should receive notice
of its progress;
That in the months that followed, I waited for such notice from the court or
from Atty. Magulta but there seemed to be no progress in my case, such
that I frequented his office to inquire, and he would repeatedly tell me just
to wait;
That I had grown impatient on the case, considering that I am told to wait
[every time] I asked; and in my last visit to Atty. Magulta last May 25,
1999, he said that the court personnel had not yet acted on my case and,
for my satisfaction, he even brought me to the Hall of Justice Building at
Ecoland, Davao City, at about 4:00 p.m., where he left me at the Office of
the City Prosecutor at the ground floor of the building and told to wait while
he personally follows up the processes with the Clerk of Court;
whereupon, within the hour, he came back and told me that the Clerk of
Court was absent on that day;
That sensing I was being given the run-around by Atty. Magulta, I decided
to go to the Office of the Clerk of Court with my draft of Atty. Magultas
complaint to personally verify the progress of my case, and there told that
there was no record at all of a case filed by Atty. Alberto C. Magulta on my
behalf, copy of the Certification dated May 27, 1999, attached as Annex C;
That feeling disgusted by the way I was lied to and treated, I confronted
Atty. Alberto C. Magulta at his office the following day, May 28, 1999,
where he continued to lie to with the excuse that the delay was being
caused by the court personnel, and only when shown the certification did
he admit that he has not at all filed the complaint because he had spent
the money for the filing fee for his own purpose; and to appease my
feelings, he offered to reimburse me by issuing two (2) checks, postdated
June 1 and June 5, 1999, in the amounts of P12,000.00 and P8,000.
respectively, copies of which are attached as Annexes D and E;
That for the inconvenience, treatment and deception I was made to suffer,
I wish to complain Atty. Alberto C. Magulta for misrepresentation,
dishonesty and oppressive conduct;
x x x x x x x x x.[1]
On August 6, 1999, pursuant to the July 22, 1999 Order of the IBP
Commission on Bar Discipline,[2] respondent filed his Answer[3] vehemently
denying the allegations of complainant for being totally outrageous and
baseless. The latter had allegedly been introduced as a kumpadre of one of
the formers law partners. After their meeting, complainant requested him to
draft a demand letter against Regwill Industries, Inc. -- a service for which
the former never paid. After Mr. Said Sayre, one of the business partners of
complainant, replied to this letter, the latter requested that another demand
letter -- this time addressed to the former -- be drafted by respondent, who
reluctantly agreed to do so. Without informing the lawyer, complainant
asked the process server of the formers law office to deliver the letter to the
addressee.
Aside from attending to the Regwill case which had required a three-
hour meeting, respondent drafted a complaint (which was only for the
purpose of compelling the owner to settle the case) and prepared a
compromise agreement. He was also requested by complainant to do the
following:
1. Write a demand letter addressed to Mr. Nelson Tan
2. Write a demand letter addressed to ALC Corporation
3. Draft a complaint against ALC Corporation
4. Research on the Mandaue City property claimed by
complainants wife
All of these respondent did, but he was never paid for his services by
complainant.
Respondent likewise said that without telling him why, complainant
later on withdrew all the files pertinent to the Regwill case. However, when
no settlement was reached, the latter instructed him to draft a complaint for
breach of contract. Respondent, whose services had never been paid by
complainant until this time, told the latter about his acceptance and legal
fees. When told that these fees amounted to P187,742 because the Regwill
claim was almost P4 million, complainant promised to pay on installment
basis.
On January 4, 1999, complainant gave the amount of P25,000 to
respondents secretary and told her that it was for the filing fee of the Regwill
case. When informed of the payment, the lawyer immediately called the
attention of complainant, informing the latter of the need to pay the
acceptance and filing fees before the complaint could be filed. Complainant
was told that the amount he had paid was a deposit for the acceptance fee,
and that he should give the filing fee later.
Sometime in February 1999, complainant told respondent to suspend
for the meantime the filing of the complaint because the former might be
paid by another company, the First Oriental Property Ventures, Inc., which
had offered to buy a parcel of land owned by Regwill Industries. The
negotiations went on for two months, but the parties never arrived at any
agreement.
Sometime in May 1999, complainant again relayed to respondent his
interest in filing the complaint. Respondent reminded him once more of the
acceptance fee. In response, complainant proposed that the complaint be
filed first before payment of respondents acceptance and legal fees. When
respondent refused, complainant demanded the return of the P25,000. The
lawyer returned the amount using his own personal checks because their
law office was undergoing extensive renovation at the time, and their office
personnel were not reporting regularly. Respondents checks were accepted
and encashed by complainant.
Respondent averred that he never inconvenienced, mistreated or
deceived complainant, and if anyone had been shortchanged by the
undesirable events, it was he.
The IBPs Recommendation

In its Report and Recommendation dated March 8, 2000, the
Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP)
opined as follows:
x x x [I]t is evident that the P25,000 deposited by complainant with the
Respicio Law Office was for the filing fees of the Regwill complaint. With
complainants deposit of the filing fees for the Regwill complaint, a
corresponding obligation on the part of respondent was created and that
was to file the Regwill complaint within the time frame contemplated by his
client, the complainant. The failure of respondent to fulfill this obligation
due to his misuse of the filing fees deposited by complainant, and his
attempts to cover up this misuse of funds of the client, which caused
complainant additional damage and prejudice, constitutes highly dishonest
conduct on his part, unbecoming a member of the law profession. The
subsequent reimbursement by the respondent of part of the money
deposited by complainant for filing fees, does not exculpate the
respondent for his misappropriation of said funds. Thus, to impress upon
the respondent the gravity of his offense, it is recommended that
respondent be suspended from the practice of law for a period of one (1)
year.[4]
The Courts Ruling
We agree with the Commissions recommendation.
Main Issue:
Misappropriation of Clients Funds
Central to this case are the following alleged acts of respondent
lawyer: (a) his non-filing of the Complaint on behalf of his client and (b) his
appropriation for himself of the money given for the filing fee.
Respondent claims that complainant did not give him the filing fee for
the Regwill complaint; hence, the formers failure to file the complaint in
court. Also, respondent alleges that the amount delivered by complainant to
his office on January 4, 1999 was for attorneys fees and not for the filing
fee.
We are not persuaded. Lawyers must exert their best efforts and
ability in the prosecution or the defense of the clients cause. They who
perform that duty with diligence and candor not only protect the interests of
the client, but also serve the ends of justice. They do honor to the bar and
help maintain the respect of the community for the legal
profession.[5] Members of the bar must do nothing that may tend to lessen
in any degree the confidence of the public in the fidelity, the honesty, and
integrity of the profession.[6]
Respondent wants this Court to believe that no lawyer-client
relationship existed between him and complainant, because the latter never
paid him for services rendered. The former adds that he only drafted the
said documents as a personal favor for the kumpadre of one of his partners.
We disagree. A lawyer-client relationship was established from the
very first moment complainant asked respondent for legal advice regarding
the formers business. To constitute professional employment, it is not
essential that the client employed the attorney professionally on any
previous occasion. It is not necessary that any retainer be paid, promised,
or charged; neither is it material that the attorney consulted did not afterward
handle the case for which his service had been sought.
If a person, in respect to business affairs or troubles of any kind,
consults a lawyer with a view to obtaining professional advice or assistance,
and the attorney voluntarily permits or acquiesces with the consultation,
then the professional employment is established.[7]
Likewise, a lawyer-client relationship exists notwithstanding the close
personal relationship between the lawyer and the complainant or the
nonpayment of the formers fees.[8] Hence, despite the fact that complainant
was kumpadre of a law partner of respondent, and that respondent
dispensed legal advice to complainant as a personal favor to
the kumpadre, the lawyer was duty-bound to file the complaint he had
agreed to prepare -- and had actually prepared -- at the soonest possible
time, in order to protect the clients interest. Rule 18.03 of the Code of
Professional Responsibility provides that lawyers should not neglect legal
matters entrusted to them.
This Court has likewise constantly held that once lawyers agree to
take up the cause of a client, they owe fidelity to such cause and must
always be mindful of the trust and confidence reposed in them.[9] They owe
entire devotion to the interest of the client, warm zeal in the maintenance
and the defense of the clients rights, and the exertion of their utmost
learning and abilities to the end that nothing be taken or withheld from the
client, save by the rules of law legally applied.[10]
Similarly unconvincing is the explanation of respondent that the
receipt issued by his office to complainant on January 4, 1999 was
erroneous. The IBP Report correctly noted that it was quite incredible for
the office personnel of a law firm to be prevailed upon by a client to issue a
receipt erroneously indicating payment for something else. Moreover, upon
discovering the mistake -- if indeed it was one -- respondent should have
immediately taken steps to correct the error. He should have lost no time in
calling complainants attention to the matter and should have issued another
receipt indicating the correct purpose of the payment.
The Practice of Law -- a
Profession, Not a Business
In this day and age, members of the bar often forget that the practice
of law is a profession and not a business.[11] Lawyering is not primarily
meant to be a money-making venture, and law advocacy is not a capital that
necessarily yields profits.[12] The gaining of a livelihood is not a professional
but a secondary consideration.[13] Duty to public service and to the
administration of justice should be the primary consideration of lawyers, who
must subordinate their personal interests or what they owe to themselves.
The practice of law is a noble calling in which emolument is a byproduct,
and the highest eminence may be attained without making much money.[14]
In failing to apply to the filing fee the amount given by complainant --
as evidenced by the receipt issued by the law office of respondent -- the
latter also violated the rule that lawyers must be scrupulously careful in
handling money entrusted to them in their professional capacity.[15] Rule
16.01 of the Code of Professional Responsibility states that lawyers shall
hold in trust all moneys of their clients and properties that may come into
their possession.
Lawyers who convert the funds entrusted to them are in gross
violation of professional ethics and are guilty of betrayal of public confidence
in the legal profession.[16] It may be true that they have a lien upon the
clients funds, documents and other papers that have lawfully come into their
possession; that they may retain them until their lawful fees and
disbursements have been paid; and that they may apply such funds to the
satisfaction of such fees and disbursements. However, these
considerations do not relieve them of their duty to promptly account for the
moneys they received. Their failure to do so constitutes professional
misconduct.[17] In any event, they must still exert all effort to protect their
clients interest within the bounds of law.
If much is demanded from an attorney, it is because the entrusted
privilege to practice law carries with it correlative duties not only to the client
but also to the court, to the bar, and to the public.[18] Respondent fell short
of this standard when he converted into his legal fees the filing fee entrusted
to him by his client and thus failed to file the complaint promptly. The fact
that the former returned the amount does not exculpate him from his breach
of duty.
On the other hand, we do not agree with complainants plea to disbar
respondent from the practice of law. The power to disbar must be exercised
with great caution. Only in a clear case of misconduct that seriously affects
the standing and the character of the bar will disbarment be imposed as a
penalty.[19]
WHEREFORE, Atty. Alberto C. Magulta is found guilty of violating
Rules 16.01 and 18.03 of the Code of Professional Responsibility and is
hereby SUSPENDED from the practice of law for a period of one (1) year,
effective upon his receipt of this Decision. Let copies be furnished all courts
as well as the Office of the Bar Confidant, which is instructed to include a
copy in respondents file.
SO ORDERED.
G.R. No. L-961 September 21, 1949
BLANDINA GAMBOA HILADO, petitioner,
vs.
JOSE GUTIERREZ DAVID, VICENTE J. FRANCISCO, JACOB ASSAD
and SELIM JACOB ASSAD, respondents.
Delgado, Dizon and Flores for petitioner.
Vicente J. Francisco for respondents.
TUASON, J.:
It appears that on April 23, 1945, Blandina Gamboa Hilado brought an
action against Selim Jacob Assad to annul the sale of several houses and
lot executed during the Japanese occupation by Mrs. Hilado's now
deceased husband.
On May 14, Attorneys Ohnick, Velilla and Balonkita filed an answer on
behalf of the defendant; and on June 15, Attorneys Delgado, Dizon, Flores
and Rodrigo registered their appearance as counsel for the plaintiff. On
October 5, these attorneys filed an amended complaint by including Jacob
Assad as party defendant.
On January 28, 1946, Attorney Francisco entered his appearance as
attorney of record for the defendant in substitution for Attorney Ohnick,
Velilla and Balonkita who had withdrawn from the case.
On May 29, Attorney Dizon, in the name of his firm, wrote Attorney
Francisco urging him to discontinue representing the defendants on the
ground that their client had consulted with him about her case, on which
occasion, it was alleged, "she turned over the papers" to Attorney
Francisco, and the latter sent her a written opinion. Not receiving any
answer to this suggestion, Attorney Delgado, Dizon, Flores and Rodrigo
on June 3, 1946, filed a formal motion with the court, wherein the case
was and is pending, to disqualify Attorney Francisco.
Attorney Francisco's letter to plaintiff, mentioned above and identified as
Exhibit A, is in full as follows:
VICENTE J. FRANCISCO
Attorney-at-Law
1462 Estrada, Manila
July 13, 1945
Mrs. Blandina Gamboa Hilado
Manila, Philippines
My dear Mrs. Hilado:
From the papers you submitted to me in connection with civil case No.
70075 of the Court of First Instance of Manila, entitled "Blandina Gamboa
Hilado vs. S. J. Assad," I find that the basic facts which brought about the
controversy between you and the defendant therein are as follows:
(a) That you were the equitable owner of the property described in the
complaint, as the same was purchased and/or built with funds exclusively
belonging to you, that is to say, the houses and lot pertained to your
paraphernal estate;
(b) That on May 3, 1943, the legal title to the property was with your
husband, Mr. Serafin P. Hilado; and
(c) That the property was sold by Mr. Hilado without your knowledge on
the aforesaid date of May 3, 1943.
Upon the foregoing facts, I am of the opinion that your action against Mr.
Assad will not ordinarily prosper. Mr. Assad had the right to presume that
your husband had the legal right to dispose of the property as the transfer
certificate of title was in his name. Moreover, the price of P110,000 in
Japanese military notes, as of May 3, 1943, does not quite strike me as so
grossly inadequate as to warrant the annulment of the sale. I believe,
lastly, that the transaction cannot be avoided merely because it was made
during the Japanese occupation, nor on the simple allegation that the real
purchaser was not a citizen of the Philippines. On his last point,
furthermore, I expect that you will have great difficulty in proving that the
real purchaser was other than Mr. Assad, considering that death has
already sealed your husband's lips and he cannot now testify as to the
circumstances of the sale.
For the foregoing reasons, I regret to advise you that I cannot appear in
the proceedings in your behalf. The records of the case you loaned to me
are herewith returned.
Yours very truly,
(Sgd.) VICENTE J. FRANCISCO
VJF/Rag.
In his answer to plaintiff's attorneys' complaint, Attorney Francisco alleged
that about May, 1945, a real estate broker came to his office in connection
with the legal separation of a woman who had been deserted by her
husband, and also told him (Francisco) that there was a pending suit
brought by Mrs. Hilado against a certain Syrian to annul the sale of a real
estate which the deceased Serafin Hilado had made to the Syrian during
the Japanese occupation; that this woman asked him if he was willing to
accept the case if the Syrian should give it to him; that he told the woman
that the sales of real property during the Japanese regime were valid even
though it was paid for in Japanese military notes; that this being his
opinion, he told his visitor he would have no objection to defending the
Syrian;
That one month afterwards, Mrs. Hilado came to see him about a suit she
had instituted against a certain Syrian to annul the conveyance of a real
estate which her husband had made; that according to her the case was in
the hands of Attorneys Delgado and Dizon, but she wanted to take it away
from them; that as he had known the plaintiff's deceased husband he did
not hesitate to tell her frankly that hers was a lost case for the same
reason he had told the broker; that Mrs. Hilado retorted that the basis of
her action was not that the money paid her husband was Japanese
military notes, but that the premises were her private and exclusive
property; that she requested him to read the complaint to be convinced
that this was the theory of her suit; that he then asked Mrs. Hilado if there
was a Torrens title to the property and she answered yes, in the name of
her husband; that he told Mrs. Hilado that if the property was registered in
her husband's favor, her case would not prosper either;
That some days afterward, upon arrival at his law office on Estrada street,
he was informed by Attorney Federico Agrava, his assistant, that Mrs.
Hilado had dropped in looking for him and that when he, Agrava, learned
that Mrs. Hilado's visit concerned legal matters he attended to her and
requested her to leave the "expediente" which she was carrying, and she
did; that he told Attorney Agrava that the firm should not handle Mrs.
Hilado's case and he should return the papers, calling Agrava's attention
to what he (Francisco) already had said to Mrs. Hilado;
That several days later, the stenographer in his law office, Teofilo
Ragodon, showed him a letter which had been dictated in English by Mr.
Agrava, returning the "expedients" to Mrs. Hilado; that Ragodon told him
(Attorney Francisco) upon Attorney Agrava's request that Agrava thought it
more proper to explain to Mrs. Hilado the reasons why her case was
rejected; that he forthwith signed the letter without reading it and without
keeping it for a minute in his possession; that he never saw Mrs. Hilado
since their last meeting until she talked to him at the Manila Hotel about a
proposed extrajudicial settlement of the case;
That in January, 1946, Assad was in his office to request him to handle his
case stating that his American lawyer had gone to the States and left the
case in the hands of other attorneys; that he accepted the retainer and on
January 28, 1946, entered his appearance.
Attorney Francisco filed an affidavit of stenographer Ragodon in
corroboration of his answer.
The judge trying the case, Honorable Jose Gutierrez David, later promoted
to the Court of Appeals, dismissed the complaint. His Honor believed that
no information other than that already alleged in plaintiff's complaint in the
main cause was conveyed to Attorney Francisco, and concluded that the
intercourse between the plaintiff and the respondent did not attain the
point of creating the relation of attorney and client.
Stripped of disputed details and collateral matters, this much is undoubted:
That Attorney Francisco's law firm mailed to the plaintiff a written opinion
over his signature on the merits of her case; that this opinion was reached
on the basis of papers she had submitted at his office; that Mrs. Hilado's
purpose in submitting those papers was to secure Attorney Francisco's
professional services. Granting the facts to be no more than these, we
agree with petitioner's counsel that the relation of attorney and client
between Attorney Francisco and Mrs. Hilado ensued. The following rules
accord with the ethics of the legal profession and meet with our approval:
In order to constitute the relation (of attorney and client) a
professional one and not merely one of principal and agent, the
attorneys must be employed either to give advice upon a legal
point, to prosecute or defend an action in court of justice, or to
prepare and draft, in legal form such papers as deeds, bills,
contracts and the like. (Atkinson vs. Howlett, 11 Ky. Law Rep.
(abstract), 364; cited in Vol. 88, A. L. R., p. 6.)
To constitute professional employment it is not essential that
the client should have employed the attorney professionally on
any previous occasion. . . . It is not necessary that any retainer
should have been paid, promised, or charged for; neither is it
material that the attorney consulted did not afterward undertake
the case about which the consultation was had. If a person, in
respect to his business affairs or troubles of any kind, consults
with his attorney in his professional capacity with the view to
obtaining professional advice or assistance, and the attorney
voluntarily permits or acquiesces in such consultation, then the
professional employment must be regarded as established. . . .
(5 Jones Commentaries on Evidence, pp. 4118-4119.)
An attorney is employed-that is, he is engaged in his
professional capacity as a lawyer or counselor-when he is
listening to his client's preliminary statement of his case, or
when he is giving advice thereon, just as truly as when he is
drawing his client's pleadings, or advocating his client's cause
in open court. (Denver Tramway Co. vs. Owens, 20 Colo., 107;
36 P., 848.)
Formality is not an essential element of the employment of an
attorney. The contract may be express or implied and it is
sufficient that the advice and assistance of the attorney is
sought and received, in matters pertinent to his profession. An
acceptance of the relation is implied on the part of the attorney
from his acting in behalf of his client in pursuance of a request
by the latter. (7 C. J. S., 848-849; see Hirach Bros. and Co. vs.
R. E. Kennington Co., 88 A. L. R., 1.)
Section 26 (e), Rule 123 of the Rules of Court provides that "an attorney
cannot, without the consent of his client, be examined as to any
communication made by the client to him, or his advice given thereon in
the course of professional employment;" and section 19 (e) of Rule 127
imposes upon an attorney the duty "to maintain inviolate the confidence,
and at every peril to himself, to preserve the secrets of his client." There is
no law or provision in the Rules of Court prohibiting attorneys in express
terms from acting on behalf of both parties to a controversy whose
interests are opposed to each other, but such prohibition is necessarily
implied in the injunctions above quoted. (In re De la Rosa, 27 Phil., 258.)
In fact the prohibition derives validity from sources higher than written laws
and rules. As has been aptly said in In re Merron, 22 N. M., 252, L.R.A.,
1917B, 378, "information so received is sacred to the employment to
which it pertains," and "to permit it to be used in the interest of another, or,
worse still, in the interest of the adverse party, is to strike at the element of
confidence which lies at the basis of, and affords the essential security in,
the relation of attorney and client."
That only copies of pleadings already filed in court were furnished to
Attorney Agrava and that, this being so, no secret communication was
transmitted to him by the plaintiff, would not vary the situation even if we
should discard Mrs. Hilado's statement that other papers, personal and
private in character, were turned in by her. Precedents are at hand to
support the doctrine that the mere relation of attorney and client ought to
preclude the attorney from accepting the opposite party's retainer in the
same litigation regardless of what information was received by him from
his first client.
The principle which forbids an attorney who has been engaged
to represent a client from thereafter appearing on behalf of the
client's opponent applies equally even though during the
continuance of the employment nothing of a confidential nature
was revealed to the attorney by the client. (Christian vs.
Waialua Agricultural Co., 30 Hawaii, 553, Footnote 7, C. J. S.,
828.)
Where it appeared that an attorney, representing one party in
litigation, had formerly represented the adverse party with
respect to the same matter involved in the litigation, the court
need not inquire as to how much knowledge the attorney
acquired from his former during that relationship, before
refusing to permit the attorney to represent the adverse party.
(Brown vs. Miller, 52 App. D. C. 330; 286, F. 994.)
In order that a court may prevent an attorney from appearing
against a former client, it is unnecessary that the ascertain in
detail the extent to which the former client's affairs might have a
bearing on the matters involved in the subsequent litigation on
the attorney's knowledge thereof. (Boyd vs. Second Judicial
Dist. Court, 274 P., 7; 51 Nev., 264.)
This rule has been so strictly that it has been held an attorney,
on terminating his employment, cannot thereafter act as
counsel against his client in the same general matter, even
though, while acting for his former client, he acquired no
knowledge which could operate to his client's disadvantage in
the subsequent adverse employment. (Pierce vs. Palmer
[1910], 31 R. I., 432; 77 Atl., 201, Ann. Cas., 1912S, 181.)
Communications between attorney and client are, in a great number of
litigations, a complicated affair, consisting of entangled relevant and
irrelevant, secret and well known facts. In the complexity of what is said in
the course of the dealings between an attorney and a client, inquiry of the
nature suggested would lead to the revelation, in advance of the trial, of
other matters that might only further prejudice the complainant's cause.
And the theory would be productive of other un salutary results. To make
the passing of confidential communication a condition precedent; i.e., to
make the employment conditioned on the scope and character of the
knowledge acquired by an attorney in determining his right to change
sides, would not enhance the freedom of litigants, which is to be
sedulously fostered, to consult with lawyers upon what they believe are
their rights in litigation. The condition would of necessity call for an
investigation of what information the attorney has received and in what
way it is or it is not in conflict with his new position. Litigants would in
consequence be wary in going to an attorney, lest by an unfortunate turn
of the proceedings, if an investigation be held, the court should accept the
attorney's inaccurate version of the facts that came to him. "Now the
abstinence from seeking legal advice in a good cause is by hypothesis an
evil which is fatal to the administration of justice." (John H. Wigmore's
Evidence, 1923, Section 2285, 2290, 2291.)
Hence the necessity of setting down the existence of the bare relationship
of attorney and client as the yardstick for testing incompatibility of
interests. This stern rule is designed not alone to prevent the dishonest
practitioner from fraudulent conduct, but as well to protect the honest
lawyer from unfounded suspicion of unprofessional practice. (Strong vs.
Int. Bldg., etc.; Ass'n, 183 Ill., 97; 47 L.R.A., 792.) It is founded on
principles of public policy, on good taste. As has been said in another
case, the question is not necessarily one of the rights of the parties, but as
to whether the attorney has adhered to proper professional standard. With
these thoughts in mind, it behooves attorneys, like Caesar's wife, not only
to keep inviolate the client's confidence, but also to avoid the appearance
of treachery and double-dealing. Only thus can litigants be encouraged to
entrust their secrets to their attorneys which is of paramount importance in
the administration of justice.
So without impugning respondent's good faith, we nevertheless can not
sanction his taking up the cause of the adversary of the party who had
sought and obtained legal advice from his firm; this, not necessarily to
prevent any injustice to the plaintiff but to keep above reproach the honor
and integrity of the courts and of the bar. Without condemning the
respondents conduct as dishonest, corrupt, or fraudulent, we do believe
that upon the admitted facts it is highly in expedient. It had the tendency to
bring the profession, of which he is a distinguished member, "into public
disrepute and suspicion and undermine the integrity of justice."
the rights of the parties and the public from any conduct of attorneys
prejudicial to the administration of the justice. The summary jurisdiction of
the courts over attorneys is not confined to requiring them to pay over
money collected by them but embraces authority to compel them to do
whatever specific acts may be incumbent upon them in their capacity of
attorneys to perform. The courts from the general principles of equity and
policy, will always look into the dealings between attorneys and clients and
guard the latter from any undue consequences resulting from a situation in
which they may stand unequal. The courts acts on the same principles
whether the undertaking is to appear, or, for that matter, not to appear, to
answer declaration, etc. (6 C.J., 718 C.J.S., 1005.) This summary remedy
against attorneys flows from the facts that they are officers of the court
where they practice, forming a part of the machinery of the law for the
administration of justice and as such subject to the disciplinary authority of
the courts and to its orders and directions with respect to their relations to
the court as well as to their clients. (Charest vs. Bishop, 137 Minn., 102;
162, N.W., 1062, Note 26, 7 C. J. S., 1007.) Attorney stand on the same
footing as sheriffs and other court officers in respect of matters just
mentioned.

There is in legal practice what called "retaining fee," the purpose of which We conclude therefore that the motion for disqualification should be
stems from the realization that the attorney is disabled from acting as allowed. It is so ordered, without costs.
counsel for the other side after he has given professional advice to the
opposite party, even if he should decline to perform the contemplated
services on behalf of the latter. It is to prevent undue hardship on the
attorney resulting from the rigid observance of the rule that a separate and
independent fee for consultation and advice was conceived and
authorized. "A retaining fee is a preliminary fee given to an attorney or
counsel to insure and secure his future services, and induce him to act for
the client. It is intended to remunerate counsel for being deprived, by
being retained by one party, of the opportunity of rendering services to the
other and of receiving pay from him, and the payment of such fee, in the
absence of an express understanding to the contrary, is neither made nor
received in payment of the services contemplated; its payment has no
relation to the obligation of the client to pay his attorney for the services
which he has retained him to perform." (7 C.J.S., 1019.)

The defense that Attorney Agrava wrote the letter Exhibit A and that
Attorney Francisco did not take the trouble of reading it, would not take the
case out of the interdiction. If this letter was written under the
circumstances explained by Attorney Francisco and he was unaware of its
contents, the fact remains that his firm did give Mrs. Hilado a formal
professional advice from which, as heretofore demonstrated, emerged the
relation of attorney and client. This letter binds and estop him in the same
manner and to the same degree as if he personally had written it. An
information obtained from a client by a member or assistant of a law firm is
information imparted to the firm. (6 C. J., 628; 7 C. J. S., 986.) This is not a
mere fiction or an arbitrary rule; for such member or assistant, as in our
case, not only acts in the name and interest of the firm, but his information,
by the nature of his connection with the firm is available to his associates
or employers. The rule is all the more to be adhered to where, as in the
present instance, the opinion was actually signed by the head of the firm
and carries his initials intended to convey the impression that it was
dictated by him personally. No progress could be hoped for in "the public
policy that the client in consulting his legal adviser ought to be free from
apprehension of disclosure of his confidence," if the prohibition were not
extended to the attorney's partners, employers or assistants.

The fact that petitioner did not object until after four months had passed
from the date Attorney Francisco first appeared for the defendants does
not operate as a waiver of her right to ask for his disqualification. In one
case, objection to the appearance of an attorney was allowed even on
appeal as a ground for reversal of the judgment. In that case, in which
throughout the conduct of the cause in the court below the attorney had
been suffered so to act without objection, the court said: "We are all of the
one mind, that the right of the appellee to make his objection has not
lapsed by reason of failure to make it sooner; that professional confidence
once reposed can never be divested by expiration of professional
employment." (Nickels vs. Griffin, 1 Wash. Terr., 374, 321 A. L. R. 1316.)

The complaint that petitioner's remedy is by appeal and not by certiorari

deserves scant attention. The courts have summary jurisdiction to protect
WILLIAM S. UY, complainant, vs. ATTY. FERMIN L.
GONZALES, respondent.
RESOLUTION
AUSTRIA-MARTINEZ, J.:
William S. Uy filed before this Court an administrative case against Atty.
Fermin L. Gonzales for violation of the confidentiality of their lawyer-client
relationship. The complainant alleges:
Sometime in April 1999, he engaged the services of respondent lawyer
to prepare and file a petition for the issuance of a new certificate of title. After
confiding with respondent the circumstances surrounding the lost title and
discussing the fees and costs, respondent prepared, finalized and submitted to
him a petition to be filed before the Regional Trial Court of Tayug, Pangasinan.
When the petition was about to be filed, respondent went to his (complainants)
office at Virra Mall, Greenhills and demanded a certain amount from him other
than what they had previously agreed upon. Respondent left his office after
reasoning with him. Expecting that said petition would be filed, he was shocked
to find out later that instead of filing the petition for the issuance of a new
certificate of title, respondent filed a letter-complaint dated July 26, 1999 against
him with the Office of the Provincial Prosecutor of Tayug, Pangasinan for
Falsification of Public Documents.[1] The letter-complaint contained facts and
circumstances pertaining to the transfer certificate of title that was the subject
matter of the petition which respondent was supposed to have filed. Portions of
said letter-complaint read:
The undersigned complainant accuses WILLIAM S. UY, of legal age, Filipino,
married and a resident of 132-A Gilmore Street corner 9th Street, New Manila,
Quezon City, Michael Angelo T. UY, CRISTINA EARL T. UY, minors and
residents of the aforesaid address, Luviminda G. Tomagos, of legal age,
married, Filipino and a resident of Carmay East, Rosales, Pangasinan, and F.
Madayag, with office address at A12, 2/F Vira Mall Shopping Complex,
Greenhills, San Juan, Metro Manila, for ESTAFA THRU FALSIFICATION OF
PUBLIC DOCUMENTS, committed as follows:
That on March 15, 1996, William S. Uy acquired by purchase a parcel of land
consisting of 4.001 ha. for the amount of P100,000.00, Philippine Currency,
situated at Brgy. Gonzales, Umingan, Pangasinan, from FERMIN C.
GONZALES, as evidenced by a Deed of Sale executed by the latter in favor of
the former; that in the said date, William S. Uy received the Transfer Certificate
of Title No. T-33122, covering the said land;
That instead of registering said Deed of Sale and Transfer Certificate of Title
(TCT) No. T-33122, in the Register of Deeds for the purpose of transferring the
same in his name, William S. Uy executed a Deed of Voluntary Land Transfer
of the aforesaid land in favor of his children, namely, Michael Angelo T. Uy and
Cristina Earl T. Uy, wherein William S. Uy made it appear that his said children
are of legal age, and residents of Brgy. Gonzales, Umingan, Pangasinan,
when in fact and in truth, they are minors and residents of Metro Manila, to
qualify them as farmers/beneficiaries, thus placing the said property within the
coverage of the Land Reform Program;
That the above-named accused, conspiring together and helping one another
procured the falsified documents which they used as supporting papers so that
they can secure from the Office of the Register of Deeds of Tayug,
Pangasinan, TCT No. T-5165 (Certificate of Land Ownership Award No. 004
32930) in favor of his above-named children. Some of these Falsified
documents are purported Affidavit of Seller/Transferor and Affidavit of Non-
Tenancy, both dated August 20, 1996, without the signature of affiant, Fermin
C. Gonzales, and that on that said date, Fermin C. Gonzales was already dead
;
That on December 17, 1998, William S. Uy with deceit and evident intent to
defraud undersigned, still accepted the amount of P340,000.00, from Atty.
Fermin L. Gonzales, P300,000.00, in PNB Check No. 0000606,
and P40,000.00, in cash, as full payment of the redemption of TCT No.
33122knowing fully well that at that time the said TCT cannot be redeemed
anymore because the same was already transferred in the name of his
children;
That William S. Uy has appropriated the amount covered by the aforesaid
check, as evidenced by the said check which was encashed by him;
That inspite of repeated demands, both oral and in writing, William S. Uy
refused and continue to refuse to deliver to him a TCT in the name of the
undersigned or to return and repay the said P340,000.00, to the damage and
prejudice of the undersigned.[2]
With the execution of the letter-complaint, respondent violated his oath as a
lawyer and grossly disregarded his duty to preserve the secrets of his
client. Respondent unceremoniously turned against him just because he refused
to grant respondents request for additional compensation. Respondents act
tarnished his reputation and social standing.[3]
In compliance with this Courts Resolution dated July 31,
2000,[4] respondent filed his Comment narrating his version, as follows:
On December 17, 1998, he offered to redeem from complainant a 4.9
hectare-property situated in Brgy. Gonzales, Umingan, Pangasinan covered by
TCT No. T-33122 which the latter acquired by purchase from his (respondents)
son, the late Fermin C. Gonzales, Jr.. On the same date, he paid complainant
P340,000.00 and demanded the delivery of TCT No. T-33122 as well as the
execution of the Deed of Redemption. Upon request, he gave complainant
additional time to locate said title or until after Christmas to deliver the same and
execute the Deed of Redemption. After the said period, he went to complainants
office and demanded the delivery of the title and the execution of the Deed of
Redemption.Instead, complainant gave him photocopies of TCT No. T-33122
and TCT No. T-5165. Complainant explained that he had already transferred the
title of the property, covered by TCT No.T-5165 to his children Michael and
Cristina Uy and that TCT No. T-5165 was misplaced and cannot be located
despite efforts to locate it. Wanting to protect his interest over the property
coupled with his desire to get hold of TCT No. T-5165 the earliest possible time,
he offered his assistance pro bono to prepare a petition for lost title provided that
all necessary expenses incident thereto including expenses for transportation
and others, estimated at P20,000.00, will be shouldered by complainant. To
these, complainant agreed.
On April 9, 1999, he submitted to complainant a draft of the petition for
the lost title ready for signing and notarization. On April 14, 1999, he went to
complainants office informing him that the petition is ready for filing and needs
funds for expenses. Complainant who was with a client asked him to wait at the
anteroom where he waited for almost two hours until he found out that
complainant had already left without leaving any instructions nor funds for the
filing of the petition. Complainants conduct infuriated him which prompted him
to give a handwritten letter telling complainant that he is withdrawing the petition
he prepared and that complainant should get another lawyer to file the petition.
Respondent maintains that the lawyer-client relationship between him
and complainant was terminated when he gave the handwritten letter to
complainant; that there was no longer any professional relationship between the
two of them when he filed the letter-complaint for falsification of public document;
that the facts and allegations contained in the letter-complaint for falsification
were culled from public documents procured from the Office of the Register of
Deeds in Tayug, Pangasinan.[5]
In a Resolution dated October 18, 2000, the Court referred the case to
the Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.[6]
Commissioner Rebecca Villanueva-Maala ordered both parties to appear
on April 2, 2003 before the IBP.[7] On said date, complainant did not appear
despite due notice. There was no showing that respondent received the notice
for that days hearing and so the hearing was reset to May 28, 2003.[8]
On April 29, 2003, Commissioner Villanueva-Maala received a letter from
one Atty. Augusto M. Macam dated April 24, 2003, stating that his client, William
S. Uy, had lost interest in pursuing the complaint he filed against Atty. Gonzales
and requesting that the case against Atty. Gonzales be dismissed.[9]
On June 2, 2003, Commissioner Villanueva-Maala submitted her report
and recommendation, portions of which read as follows:
The facts and evidence presented show that when respondent agreed to
handle the filing of the Verified Petition for the loss of TCT No. T-5165,
complainant had confided to respondent the fact of the loss and the
circumstances attendant thereto. When respondent filed the Letter-Complaint
to the Office of the Special Prosecutor in Tayug, Pangasinan, he violated
Canon 21 of the Code of Professional Responsibility which expressly provides
that A lawyer shall preserve the confidences and secrets of his client even
after the attorney-client relation is terminated. Respondent cannot argue that
there was no lawyer-client relationship between them when he filed the Letter-
Complaint on 26 July 1999 considering that as early as 14 April 1999, or three
(3) months after, respondent had already terminated complainants perceived
lawyer-client relationship between them. The duty to maintain inviolate the
clients confidences and secrets is not temporary but permanent. It is in effect
perpetual for it outlasts the lawyers employment (Canon 37, Code of
Professional Responsibility) which means even after the relationship has been
terminated, the duty to preserve the clients confidences and secrets remains
effective. Likewise Rule 21.02, Canon 21 of the Rules of Professional
Responsibility provides that A lawyer shall not, to the disadvantage of his
client, use information acquired in the course of employment, nor shall he use
the same to his own advantage or that of a third person, unless the client with
the full knowledge of the circumstances consents thereto.
On 29 April 2003, the Commission received a letter dated 24 April 2003 from
Atty. Augusto M. Macam, who claims to represent complainant, William S. Uy,
alleging that complainant is no longer interested in pursuing this case and
requested that the same be dismissed. The aforesaid letter hardly deserves
consideration as proceedings of this nature cannot be interrupted by reason of
desistance, settlement, compromise, restitution, withdrawal of the charges, or
failure of the complainant to prosecute the same. (Section 5, Rule 139-B,
Rules of Court). Moreover, in Boliver vs. Simbol, 16 SCRA 623, the Court ruled
that any person may bring to this Courts attention the misconduct of any
lawyer, and action will usually be taken regardless of the interest or lack of
interest of the complainant, if the facts proven so warrant.
IN VIEW OF THE FOREGOING, we find respondent Atty. Fermin L. Gonzales
to have violated the Code of Professional Responsibility and it is hereby
recommended that he be SUSPENDED for a period of SIX (6) MONTHS from
receipt hereof, from the practice of his profession as a lawyer and member of
the Bar.[10]
On June 21, 2003, the Board of Governors of the Integrated Bar of
the Philippines issued Resolution No. XV-2003-365, thus:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating
Commissioner of the above-entitled case, herein made part of this
Resolution/Decision as Annex A; and finding the recommendation fully
supported by the evidence on record and applicable laws and rules, and
considering that respondent violated Rule 21.02, Canon 21 of the Canons of
Professional Responsibility, Atty. Fermin L. Gonzales is
hereby SUSPENDED from the practice of law for six (6) months.[11]
Preliminarily, we agree with Commissioner Villanueva-Maala that the
manifestation of complainant Uy expressing his desire to dismiss the
administrative complaint he filed against respondent, has no persuasive bearing
in the present case.
Sec. 5, Rule 139-B of the Rules of Court states that:
No investigation shall be interrupted or terminated by reason of the desistance,
settlement, compromise, restitution, withdrawal of the charges, or failure of the
complainant to prosecute the same.
This is because:
A proceeding for suspension or disbarment is not in any sense a civil action
where the complainant is a plaintiff and the respondent lawyer is a
defendant. Disciplinary proceedings involve no private interest and afford no
redress for private grievance. They are undertaken and prosecuted solely for
the public welfare. They are undertaken for the purpose of preserving courts of
justice from the official ministration of persons unfit to practice in them. The
attorney is called to answer to the court for his conduct as an officer of the
court. The complainant or the person who called the attention of the court to
the attorney's alleged misconduct is in no sense a party, and has generally no
interest in the outcome except as all good citizens may have in the proper
administration of justice. Hence, if the evidence on record warrants, the
respondent may be suspended or disbarred despite the desistance of
complainant or his withdrawal of the charges.[12]
Now to the merits of the complaint against the respondent.
Practice of law embraces any activity, in or out of court, which requires
the application of law, as well as legal principles, practice or procedure and calls
for legal knowledge, training and experience.[13] While it is true that a lawyer may
be disbarred or suspended for any misconduct, whether in his professional or
private capacity, which shows him to be wanting in moral character, in honesty,
probity and good demeanor or unworthy to continue as an officer of the
court,[14] complainant failed to prove any of the circumstances enumerated
above that would warrant the disbarment or suspension of herein respondent.
Notwithstanding respondents own perception on the matter, a scrutiny of
the records reveals that the relationship between complainant and respondent
stemmed from a personal transaction or dealings between them rather than the
practice of law by respondent. Respondent dealt with complainant only because
he redeemed a property which complainant had earlier purchased from his
(complainants) son. It is not refuted that respondent paid
complainant P340,000.00 and gave him ample time to produce its title and
execute the Deed of Redemption. However, despite the period given to him,
complainant failed to fulfill his end of the bargain because of the alleged loss of
the title which he had admitted to respondent as having prematurely transferred
to his children, thus prompting respondent to offer his assistance so as to secure
the issuance of a new title to the property, in lieu of the lost one, with complainant
assuming the expenses therefor.
As a rule, an attorney-client relationship is said to exist when a lawyer
voluntarily permits or acquiesces with the consultation of a person, who in
respect to a business or trouble of any kind, consults a lawyer with a view of
obtaining professional advice or assistance. It is not essential that the client
should have employed the attorney on any previous occasion or that any retainer
should have been paid, promised or charged for, neither is it material that the
attorney consulted did not afterward undertake the case about which the
consultation was had, for as long as the advice and assistance of the attorney
is sought and received, in matters pertinent to his profession.[15]
Considering the attendant peculiar circumstances, said rule cannot apply
to the present case. Evidently, the facts alleged in the complaint for Estafa
Through Falsification of Public Documents filed by respondent against
complainant were obtained by respondent due to his personal dealings with
complainant. Respondent volunteered his service to hasten the issuance of the
certificate of title of the land he has redeemed from complainant. Respondents
immediate objective was to secure the title of the property that complainant had
earlier bought from his son. Clearly, there was no attorney-client relationship
between respondent and complainant. The preparation and the proposed filing
of the petition was only incidental to their personal transaction.
Canon 21 of the Code of Professional Responsibility reads:
Canon 21 A LAWYER SHALL PRESERVE THE CONFIDENCE AND
SECRETS OF HIS CLIENT EVEN AFTER THE ATTORNEY-CLIENT
RELATION IS TERMINATED.
Rule 21.01 A lawyer shall not reveal the confidences or secrets of his client
except:
a) When authorized by the client after acquainting him of the consequences of
the disclosure;
b) When required by law;
c) When necessary to collect his fees or to defend himself, his employees or
associates or by judicial action.
The alleged secrets of complainant were not specified by him in his
affidavit-complaint. Whatever facts alleged by respondent against complainant
were not obtained by respondent in his professional capacity but as a
redemptioner of a property originally owned by his deceased son and therefore,
when respondent filed the complaint for estafa against herein complainant,
which necessarily involved alleging facts that would constitute estafa,
respondent was not, in any way, violating Canon 21. There is no way we can
equate the filing of the affidavit-complaint against herein complainant to a
misconduct that is wanting in moral character, in honesty, probity and good
demeanor or that renders him unworthy to continue as an officer of the court. To
hold otherwise would be precluding any lawyer from instituting a case against
anyone to protect his personal or proprietary interests.
WHEREFORE, Resolution No. XV-2003-365 dated June 21, 2003 of the
Integrated Bar of the Philippines is REVERSED and SET ASIDE and the
administrative case filed against Atty. Fermin L. Gonzales, docketed as A.C. No.
5280, is DISMISSED for lack of merit.
SO ORDERED.
ROSA F. MERCADO, complainant, vs. ATTY. JULITO D.
VITRIOLO, respondent.
DECISION
PUNO, J.:
Rosa F. Mercado filed the instant administrative complaint against
Atty. Julito D. Vitriolo, seeking his disbarment from the practice of law. The
complainant alleged that respondent maliciously instituted a criminal case
for falsification of public document against her, a former client, based on
confidential information gained from their attorney-client relationship.
Let us first hearken to the facts.
Complainant is a Senior Education Program Specialist of the
Standards Development Division, Office of Programs and Standards while
respondent is a Deputy Executive Director IV of the Commission on Higher
Education (CHED).[1]
Complainants husband filed Civil Case No. 40537 entitled Ruben G.
Mercado v. Rosa C. Francisco, for annulment of their marriage with the
Regional Trial Court (RTC) of Pasig City. This annulment case had been
dismissed by the trial court, and the dismissal became final and executory
on July 15, 1992.[2]
In August 1992, Atty. Anastacio P. de Leon, counsel of complainant,
died. On February 7, 1994, respondent entered his appearance before the
trial court as collaborating counsel for complainant.[3]
On March 16, 1994, respondent filed his Notice of Substitution of
Counsel,[4] informing the RTC of Pasig City that he has been appointed as
counsel for the complainant, in substitution of Atty. de Leon.
It also appears that on April 13, 1999, respondent filed a criminal
action against complainant before the Office of the City Prosecutor, Pasig
City, entitled Atty. Julito Vitriolo, et al. v. Rose Dela Cruz F. Mercado, and
docketed as I.S. No. PSG 99-9823, for violation of Articles 171 and 172
(falsification of public document) of the Revised Penal Code. [5]Respondent
alleged that complainant made false entries in the Certificates of Live Birth
of her children, Angelica and Katelyn Anne. More specifically, complainant
allegedly indicated in said Certificates of Live Birth that she is married to a
certain Ferdinand Fernandez, and that their marriage was solemnized on
April 11, 1979, when in truth, she is legally married to Ruben G. Mercado
and their marriage took place on April 11, 1978.
Complainant denied the accusations of respondent against her. She
denied using any other name than Rosa F. Mercado. She also insisted that
she has gotten married only once, on April 11, 1978, to Ruben G. Mercado.
In addition, complainant Mercado cited other charges against
respondent that are pending before or decided upon by other tribunals (1)
libel suit before the Office of the City Prosecutor, Pasig City;[6] (2)
administrative case for dishonesty, grave misconduct, conduct prejudicial to
the best interest of the service, pursuit of private business, vocation or
profession without the permission required by Civil Service rules and
regulations, and violations of the Anti-Graft and Corrupt Practices Act,
before the then Presidential Commission Against Graft and Corruption;[7] (3)
complaint for dishonesty, grave misconduct, and conduct prejudicial to the
best interest of the service before the Office of the Ombudsman, where he
was found guilty of misconduct and meted out the penalty of one month
suspension without pay;[8] and, (4) the Information for violation of Section
7(b)(2) of Republic Act No. 6713, as amended, otherwise known as the
Code of Conduct and Ethical Standards for Public Officials and Employees
before the Sandiganbayan.[9]
Complainant Mercado alleged that said criminal complaint for
falsification of public document (I.S. No. PSG 99-9823) disclosed
confidential facts and information relating to the civil case for annulment,
then handled by respondent Vitriolo as her counsel. This prompted
complainant Mercado to bring this action against respondent. She claims
that, in filing the criminal case for falsification, respondent is guilty of
breaching their privileged and confidential lawyer-client relationship, and
should be disbarred.
Respondent filed his Comment/Motion to Dismiss on November 3,
1999 where he alleged that the complaint for disbarment was all hearsay,
misleading and irrelevant because all the allegations leveled against him
are subject of separate fact-finding bodies. Respondent claimed that the
pending cases against him are not grounds for disbarment, and that he is
presumed to be innocent until proven otherwise.[10] He also states that the
decision of the Ombudsman finding him guilty of misconduct and imposing
upon him the penalty of suspension for one month without pay is on appeal
with the Court of Appeals. He adds that he was found guilty, only of simple
misconduct, which he committed in good faith.[11]
In addition, respondent maintains that his filing of the criminal
complaint for falsification of public documents against complainant does not
violate the rule on privileged communication between attorney and client
because the bases of the falsification case are two certificates of live birth
which are public documents and in no way connected with the confidence
taken during the engagement of respondent as counsel. According to
respondent, the complainant confided to him as then counsel only matters
of facts relating to the annulment case. Nothing was said about the alleged
falsification of the entries in the birth certificates of her two daughters. The
birth certificates are filed in the Records Division of CHED and are
accessible to anyone.[12]
In a Resolution dated February 9, 2000, this Court referred the
administrative case to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.[13]
The IBP Commission on Bar Discipline set two dates for hearing but
complainant failed to appear in both. Investigating Commissioner Rosalina
R. Datiles thus granted respondents motion to file his memorandum, and
the case was submitted for resolution based on the pleadings submitted by
the parties.[14]
On June 21, 2003, the IBP Board of Governors approved the report
of investigating commissioner Datiles, finding the respondent guilty of
violating the rule on privileged communication between attorney and client,
and recommending his suspension from the practice of law for one (1) year.
On August 6, 2003, complainant, upon receiving a copy of the IBP
report and recommendation, wrote Chief Justice Hilario Davide, Jr., a letter
of desistance. She stated that after the passage of so many years, she has
now found forgiveness for those who have wronged her.
At the outset, we stress that we shall not inquire into the merits of the
various criminal and administrative cases filed against respondent. It is the
duty of the tribunals where these cases are pending to determine the guilt
or innocence of the respondent.
We also emphasize that the Court is not bound by any withdrawal of
the complaint or desistance by the complainant. The letter of complainant
to the Chief Justice imparting forgiveness upon respondent is
inconsequential in disbarment proceedings.
We now resolve whether respondent violated the rule on privileged
communication between attorney and client when he filed a criminal case
for falsification of public document against his former client.
A brief discussion of the nature of the relationship between attorney
and client and the rule on attorney-client privilege that is designed to protect
such relation is in order.
In engaging the services of an attorney, the client reposes on him
special powers of trust and confidence. Their relationship is strictly personal
and highly confidential and fiduciary. The relation is of such delicate,
exacting and confidential nature that is required by necessity and public
interest.[15] Only by such confidentiality and protection will a person be
encouraged to repose his confidence in an attorney. The hypothesis is that
abstinence from seeking legal advice in a good cause is an evil which is
fatal to the administration of justice.[16] Thus, the preservation and protection
of that relation will encourage a client to entrust his legal problems to an
attorney, which is of paramount importance to the administration of
justice.[17] One rule adopted to serve this purpose is the attorney-client
privilege: an attorney is to keep inviolate his clients secrets or confidence
and not to abuse them.[18] Thus, the duty of a lawyer to preserve his clients
secrets and confidence outlasts the termination of the attorney-client
relationship,[19] and continues even after the clients death.[20] It is the glory
of the legal profession that its fidelity to its client can be depended on, and
that a man may safely go to a lawyer and converse with him upon his rights
or supposed rights in any litigation with absolute assurance that the lawyers
tongue is tied from ever disclosing it.[21] With full disclosure of the facts of have been transmitted by a client to his attorney for the purpose of seeking
the case by the client to his attorney, adequate legal representation will legal advice.[34]
result in the ascertainment and enforcement of rights or the prosecution or
defense of the clients cause. If the client seeks an accounting service,[35] or business or personal
assistance,[36] and not legal advice, the privilege does not attach to a
Now, we go to the rule on attorney-client privilege. Dean Wigmore communication disclosed for such purpose.
cites the factors essential to establish the existence of the privilege, viz:
Applying all these rules to the case at bar, we hold that the evidence
on record fails to substantiate complainants allegations. We note that
(1) Where legal advice of any kind is sought (2) from a professional legal complainant did not even specify the alleged communication in confidence
adviser in his capacity as such, (3) the communications relating to that disclosed by respondent. All her claims were couched in general terms and
purpose, (4) made in confidence (5) by the client, (6) are at his instance lacked specificity. She contends that respondent violated the rule on
permanently protected (7) from disclosure by himself or by the legal advisor, privileged communication when he instituted a criminal action against her
(8) except the protection be waived.[22] for falsification of public documents because the criminal complaint
disclosed facts relating to the civil case for annulment then handled by
In fine, the factors are as follows: respondent. She did not, however, spell out these facts which will determine
the merit of her complaint. The Court cannot be involved in a guessing game
(1) There exists an attorney-client relationship, or a prospective as to the existence of facts which the complainant must prove.
attorney-client relationship, and it is by reason of this relationship that the
client made the communication. Indeed, complainant failed to attend the hearings at the IBP. Without
any testimony from the complainant as to the specific confidential
Matters disclosed by a prospective client to a lawyer are protected by information allegedly divulged by respondent without her consent, it is
the rule on privileged communication even if the prospective client does not difficult, if not impossible to determine if there was any violation of the rule
thereafter retain the lawyer or the latter declines the employment.[23] The on privileged communication. Such confidential information is a crucial link
reason for this is to make the prospective client free to discuss whatever he in establishing a breach of the rule on privileged communication between
wishes with the lawyer without fear that what he tells the lawyer will be attorney and client. It is not enough to merely assert the attorney-client
divulged or used against him, and for the lawyer to be equally free to obtain privilege.[37] The burden of proving that the privilege applies is placed upon
information from the prospective client.[24] the party asserting the privilege.[38]
On the other hand, a communication from a (prospective) client to a IN VIEW WHEREOF, the complaint against respondent Atty. Julito
lawyer for some purpose other than on account of the (prospective) D. Vitriolo is hereby DISMISSED for lack of merit.
attorney-client relation is not privileged. Instructive is the case of Pfleider v.
Palanca,[25] where the client and his wife leased to their attorney a 1,328- SO ORDERED.
hectare agricultural land for a period of ten years. In their contract, the
parties agreed, among others, that a specified portion of the lease rentals
would be paid to the client-lessors, and the remainder would be delivered
by counsel-lessee to client's listed creditors. The client alleged that the list
of creditors which he had confidentially supplied counsel for the purpose of
carrying out the terms of payment contained in the lease contract was
disclosed by counsel, in violation of their lawyer-client relation, to parties
whose interests are adverse to those of the client. As the client himself,
however, states, in the execution of the terms of the aforesaid lease contract
between the parties, he furnished counsel with the confidential list of his
creditors. We ruled that this indicates that client delivered the list of his
creditors to counsel not because of the professional relation then existing
between them, but on account of the lease agreement. We then held that a
violation of the confidence that accompanied the delivery of that list would
partake more of a private and civil wrong than of a breach of the fidelity
owing from a lawyer to his client.
(2) The client made the communication in confidence.
The mere relation of attorney and client does not raise a presumption
of confidentiality.[26] The client must intend the communication to be
confidential.[27]
A confidential communication refers to information transmitted by
voluntary act of disclosure between attorney and client in confidence and
by means which, so far as the client is aware, discloses the information to
no third person other than one reasonably necessary for the transmission
of the information or the accomplishment of the purpose for which it was
given.[28]
Our jurisprudence on the matter rests on quiescent ground. Thus, a
compromise agreement prepared by a lawyer pursuant to the instruction of
his client and delivered to the opposing party, [29] an offer and counter-offer
for settlement,[30] or a document given by a client to his counsel not in his
professional capacity,[31] are not privileged communications, the element of
confidentiality not being present.[32]
(3) The legal advice must be sought from the attorney in his
professional capacity.[33]
The communication made by a client to his attorney must not be
intended for mere information, but for the purpose of seeking legal advice
from his attorney as to his rights or obligations. The communication must
CANON 15
the following findings and recommendations:
A.C. No. 396 July 31, 1964
IN THE MATTER OF THE PETITION FOR THE DISBARMENT OF
ATTORNEY EDUARDO M. TUASON. EMILIO C. STA. MARIA,
petitioner.
PAREDES, J.:
Sometime in June, 1955, respondent Atty. Eduardo M. Tuason
represented petitioner Emilio C. Sta. Maria. and his two partners Andres
Guanzon and Fausto E. Chincuanco in prosecuting Civil Case No. 894,
CFI of Pampanga, entitled "Fausto E. Chincuanco, et al. v. Enriqueta M.
de Hidalgo, et al", a collection case involving a promissory note of
P50,000.00. Defendant Enriqueta M. de Hidalgo was declared in default,
and the Court rendered judgment on October 8, 1955, ordering the
defendant de Hidalgo to pay: —
(a) Plaintiffs the sum of P30,000.00 with interests thereon at
the rate of six percent (6%) per annum from June 18, 1955, the
date of the filing of the complaint, until the same shall have
been fully paid, plus the sum of P3,500.00 as plaintiffs'
attorney's fees;
(b) Plaintiff Andres A. Guanzon the other sum of P3,000.00 as
compensation for the injury caused to him in his credit
standing; and
(c) Plaintiff Fausto E. Chincuanco another sum of P3,000.00 as
compensation for the injury caused to him in his credit
standing.
On December 9, 1955, a writ of execution was issued. Sufficient amount
of money to satisfy the judgment, came into the hands of the Provincial
Sheriff of Pampanga. Respondent Tuason, on September 10, 1958,
obtained from the Sheriff, the amount of P22,930.64, which he (Tuason)
applied in the following manner: (1) P10,000.00 for his alleged attorney's
fees; (2) P1,648.00 to supposed expenses of litigation, which he claimed
to have advanced in the prosecution of the case; and (3) the balance of
P11,282.64, to plaintiff Fausto E. Chincuanco, his uncle.
Petitioner claims that respondent Tuason deprived him of his lawful share
in the judgment which was P25,511.62; that respondent was not entitled to
P10,000.00 as attorney's fees because even the lower court awarded him
only P3,500.00; that the foregoing acts were done, without the prior
knowledge and consent of petitioner.
Upon finding that the respondent withdrew the P22,930.64 from the Office
of the Provincial Sheriff, complainant Sta. Maria repaired to the office of
Atty. Tuason and demanded the amount to be turned over to him, or to the
Sheriff for proper disposition by the Court; that upon failure of respondent
to comply with any of the two things, contempt proceedings were instituted
against respondent Tuason. In view, however, of the claim of Tuason that
he gave the money to Guanzon and Chincuanco, petitioner filed with the
CFI of Pampanga, Civil Case No. 1704, against said Tuason, Guanzon
and Chincuanco, for collection of his rightful share in the judgment in Civil
Case No. 894.
Respondent, in his Answer, admitted having received the amounts in
question from the Sheriff of Pampanga, and disbursed the same in the
manner stated by petitioner, but he denied that he obtained and disbursed
the amounts, without the knowledge and consent of the petitioner; the
truth of the matter being that he was given full authority by petitioner's
partners (Guanzon and Chincuanco) to receive P10,000.00 for his
services; that the two were the ones who engaged his services in the
prosecution of Civil Case No. 894, for their own behalf and in behalf of
petitioner himself; that he delivered the balance of the amount, to
Chincuanco, who was the one who had actually retained his services and
who took charge of liquidating the accounts with his partners.
The matter was referred to the Office of the Solicitor General who made
The foregoing evidence presented by the parties involves two
issues, namely; (1) Whether the respondent was in connivance
with Fausto Chincuanco and Andres Guanzon in delivering to
them the full amount of P22,930.64 and thereby deprived the
petitioner from getting his rightful share in the liquidation of
assets of the partnership and (2) whether the respondent was
guilty of malpractice and gross misconduct in withholding the
amount of P10,000 as his attorney's fees and also the amount
of P1,648 as alleged expenses in the litigation.
The complainant in this case contends that the respondent
committed malpractice in delivering the proceeds of the
judgment money to Fausto Chincuanco, his uncle, and Andres
Guanzon, his close business associate (p. 17, tsn, July 10,
1961; p. 6, rec.).
As to the first issue, the petitioner claims that he was unable to
collect his rightful share in the liquidation of the funds of the
partnership as agreed upon by the partners (Exh. E, pp. 3-4,
tsn, June 15, 1960) for which reason, he had to file a civil case
against his partners. He attributes this failure mainly to the
respondent who delivered the judgment money to Chincuanco,
his partner, who disposed of the whole amount in the manner
already indicated earlier. While it is true that Fausto
Chincuanco and Guanzon, the latter being the general
manager from the Sheriff (Exh. C, p. 14, rec.), there is no clear
evidence presented to show that the respondent connived with
either Chincuanco or Guanzon on delivering the judgment
money to them for the purpose of depriving the complainant of
his rightful share in the partnership. What the respondent did in
this case was to deliver the judgment money to the partnership
through Chincuanco and Guanzons the latter being the general
manager. The proper action for the complainant was to
demand his share from Guanzon, the managing partner, or
from Chincuanco, the other partner. This he did by filing a
complaint in the Court of First Instance of Pampanga (see Civil
Case No. 1704, Exh. 2). In this case Atty. Eduardo Tuason, the
herein respondent, was included as defendant. A contempt
proceeding was also filed by complainant, citing Atty. Tuason
and the Sheriff of Pampanga as respondents. It appears,
however, that an amicable settlement was finally agreed upon
by the parties in this civil case resulting in a compromise
agreement, duly approved by the Court of First Instance of
Pampanga, wherein the plaintiff waived all his claim against his
other partners. In said compromise agreement the plaintiff also
agreed not to proceed with the contempt case he filed against
Atty. Tuason and the Sheriff of Pampanga (Exhs. 2, 3 and 5,
folder of exhibits).
The issue, therefore, revolves more on the division of the
partnership assets rather than on the right of the complainant to
compel the respondent to turn over to him part of the judgment
money which respondent applied as his attorney's fees and
reimbursement for his expenses in connection with the litigation
he handled for the partners. Under the foregoing
circumstances, the undersigned investigator is of the opinion
that the respondent Tuason has not committed any act that will
constitute malpractice or gross misconduct in office.
Wherefore, the parties respectfully pray that the foregoing
stipulation of facts be admitted and approved by this Honorable
Court, without prejudice to the parties adducing other evidence
to prove their case not covered by this stipulation of
facts. 1äwphï1.ñët
As to the second issue, there is no dispute that the respondent
collected the amount of P10,000 as attorney's fees for a
collection suit in the amount of P50,000.00 based on a
promissory note. It appears that since the defendant was
 declared in default, the case was terminated after one brief professional indiscretion, with the warning that a more severe
hearing. The respondent also collected P1,648 as alleged penalty be imposed for a repetition of same or similar acts.
expenses incurred in connection with the litigation. No
satisfactory evidence, however, was presented to show that the The report of the Solicitor General was duly set for hearing, by this Court.
respondent actually spent that amount. On the other hand, Respondent excepted from the recommendation which called for the
there was the undisputed evidence which shows that the case imposition of a reprimand. Respondent points out that the findings of the
represented by the respondent was terminated with one brief Solicitor General did not warrant his recommendation, since he found that
hearing after the defendant was declared in default. There is, respondent "has not committed any act that will constitute malpractice or
likewise, no dispute that said attorney's fees and litigation gross misconduct in office." Respondent also claims that the filing of
expenses were deducted from the judgment money collected different proceedings against him was simply intended to harass and
by the respondent from the Sheriff of Pampanga. This act of embarrass him, because of petitioner's dissatisfaction over the disposition
the respondent seems to be irregular, if not suspicious, by his partners, of the award in Civil Case No. 894.
considering his close relationship with Mr. Chincuanco.
Notwithstanding the opinion of Mr. Guanzon, the amount of
P10,000 for attorney's fees is, to our mind, also unreasonable After an overall consideration of the facts and circumstances surrounding
under the circumstances. It is to be noted in this connection the case, We find that the findings and conclusions of the Solicitor General
that the respondent himself alleged in the complaint he filed for are supported by the evidence of record. The fact that the respondent has
the partnership that "the plaintiffs will incur for attorney's fees placed his private and personal interest over and above that of his clients
and expenses of the litigation P6,000" (u 9, Rec.). constitutes a breach of a lawyer's oath, to say the least. Call it professional
indiscretion or any other name, but the cold fact remains that the act, as
found by the Solicitor General, is not conducive to a healthy growth of the
Moreover, the circumstances of the case show that the legal profession. The respondent is hereby admonished that a repetition of
respondent took advantage of the fact that he was a nephew of similar acts will merit more drastic action.
Fausto Chincuanco and a close associate of Andres Guanzon
in collecting his lawyer's fees. Even at the time that the
respondent was already representing the partnership, the Wherefore, the parties respectfully pray that the foregoing stipulation of
complainant inquired from Chincuanco about the respondent's facts be admitted and approved by this Honorable Court, without prejudice
fees. In reply Chincuanco said that he (Sta. Maria) should not to the parties adducing other evidence to prove their case not covered by
worry about it because the respondent is a nephew of his. On this stipulation of facts. 1äwphï1.ñ
this assurance, the complainant could be said to have assumed
that the respondent would not collect an excessive amount,
much less take advantage of his relationship with one of the
partners by retaining the funds, considering that the case was
one of a simple collection based on a promissory note. The act
of the respondent in collecting P10,000 for attorney's fees and
alleged expenses he incurred in the litigation, aggravated the
burden of the complainant who claims that he was not given his
due share in the distribution of the assets of the partnership as
his two partners were already in possession of the money.
While it is true that the partners of the complainant apparently
acceded to the respondent's acts, it cannot be denied that the
latter acted with indiscretion, induced by his close relationship
with Chincuanco to the prejudice of the complainant. In effect,
respondent's act constituted a retention of the funds of his
client, an act of professional indiscretion bordering on
misbehaviour.

Wherefore, the parties respectfully pray that the foregoing

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

It may be stated, however, that the respondent may have felt

justified in his acts, since they were done with apparent
acquiescence of his clients, Fausto Chincuanco and Andres
Guanzon. Moreover, an amicable settlement of all the suits
filed by the herein complainant resulted in a compromise
agreement, whereby the complainant waived any and all claims
against his partners and the respondent arising from the
transactions which are the subject matter of the controversy, as
well as from the incidents thereof (Exh. 2, folder of exhibits).
While it may be said that this compromise agreement may not
affect the misconduct of the respondent as a member of the
bar, at least, it cannot be denied that the complainant has, in
effect, condoned respondent's acts.

RECOMMENDATION

IN VIEW OF THE FOREGOING, it is respectfully

recommended that instead of a more severe penalty which he
would otherwise deserve, the respondent be reprimanded for
A.C. No. 620 March 21, 1974
JOSE ALCALA and AVELINA IMPERIAL, petitioners,
vs. HONESTO DE VERA, respondent.
MUÑOZ PALMA, J.: On May 19, 1964, Jose Alcala (now deceased) and his wife,
Avelina Imperial, filed this present petition for disbarment against respondent
Honesto de Vera, a practicing attorney of Locsin, Albay, who was retained by them
as their counsel in civil case 2478 of the Court of First Instance of Albay, entitled:
"Ray Semenchuk vs. Jose Alcala".
Complainants charge Atty. Honesto de Vera with gross negligence and malpractice:
1) for having maliciously and deliberately omitted to notify them of the decision in
civil case 2478 resulting in the deprivation of their right to appeal from the adverse
judgment rendered against them; and 2) for respondent's indifference, disloyalty
and lack of interest in petitioners' cause resulting to their damage and prejudice.
Respondent attorney, in his answer to these charges, asserted that he notified his
clients of the decision in question and that he defended complainants' case to the
best of his ability as demanded by the circumstances and that he never showed
indifference, lack of interest or disloyalty to their cause.
The Solicitor General, to whom this Court referred this case for investigation, report
and recommendation, substantially found the following:
Civil case 2478 was an action for annulment of a sale of two parcels of land (lots
Nos. 1880 and 1883 covered by TCT Nos. T-12392 and 12393 respectively) filed by
the vendee, Ray Semenchuk, against the vendors, spouses Alcala, on the ground
that lot 1880 "could not be located or did not exist", and for the recovery of
damages and attorney's fees.
Respondent attorney, whose legal services were engaged by complainants, filed an
answer denying the material allegations of the above-mentioned complaint and
setting up a counterclaim for the balance of the purchase price of the lots sold, the
expenses of notarials, internal revenue, registration, etc. plus damages and
attorney's fees.
On April 17, 1963, the trial court rendered judgment rescinding the contract of sale,
on the ground that the vendee Semenchuk was not able to take material
possession of lot 1880 it being in the possession of a certain Ruperto Ludovice and
his brothers who have been occupying the land for a number of years. The
dispositive portion of the judgment reads:
WHEREFORE, judgment is hereby rendered:
(a) Declaring the deed of sale (Exhibit A) rescinded;
(b) Directing the plaintiff to deliver to the defendants the possession of
lot No. 1883.
(c) Ordering the defendants to return to the plaintiff the sum of
P1,000.00 after deducting the amount of P250.00 which is the
consideration in the deed of sale of Lot No. 185; and
(d) Without pronouncement as to costs. (p. 11, rollo)
On April 19, 1963, respondent Atty. de Vera received a copy of the decision but he
failed to inform his clients of the judgment against them. On July 17, 1963, a sheriff
came to complainants' house to serve a writ of execution issued in said case.
Totally caught by surprise, Jose Alcala immediately wrote to the trial court and
inquired for the status of case 2478. The deputy Clerk of Court, in his reply dated
July 22, 1963, informed Alcala that the case was decided on April 17, 1963, that a
copy of the decision was received by respondent attorney on April 19, 1963, and
that since no appeal was taken, a writ of execution was issued by the trial court on
motion of the plaintiff Semenchuk.
On September 12, 1963, spouses Alcala instituted civil case 2723 for damages
against Atty. Honesto de Vera for having failed to inform them of the decision in
case 2478 as a result of which they lost their right to appeal from said decision. The
trial court that heard case 2723 found for a fact that respondent did not inform his
clients of the decision rendered in case 2478; however, it denied damages for lack
of proof that the spouses Alcala suffered any damage as a result of respondent's
failure to notify them of the aforesaid decision. The judgment in case 2723 was
appealed to the Court of Appeals1 by respondent herein but the same was affirmed
by said appellate court.
Not content with having filed case 2723, complainants instituted this complaint for
disbarment against their former counsel.
1. "Indifference, loyalty, and lack of interest" of respondent in the handling of
complainants' defense in civil case 2478.
The basis of this particular charge is the alleged failure of Atty. de Vera to present
at the trial of case 2478 certain documents which according to the complainants
could have proven that lot 1880 actually existed, to wit: a sketch of lot 1880
prepared by the vendee, Semenchuk, himself (Exh. L-Adm. Case); technical
description of lot 1880 taken from complainants' certificate of title (Exh. M-Adm.
Case); sketch plan of lot 1880 in relation to the adjoining lots prepared by surveyor
Miguel N. Romero (Exh. N-Adm Case); a receipt for P10.00 issued by surveyor
Romero for the preparation of the sketch, Exh. N (Exh. O-Adm. Case) — all of
which documents were turned over by Jose Alcala to respondent before the trial of
case 2478.
We agree with the Solicitor General that there is no merit to this particular charge.
The records of case 2478 show that upon agreement of the parties and their
attorneys, the trial court appointed a commissioner to relocate lot 1880 and after
conducting such relocation, the commissioner reported to the Court that the lot
existed, but that the same was in the possession of other persons. Inasmuch as the
existence of lot 1880 had already been verified by the commissioner, it was
therefore unnecessary for respondent attorney to introduce in evidence Exhibits "L",
"M", "N", and "O", the purpose of which was merely to prove the existence of said
lot. If the complaint for rescission prospered it was because of complainant Alcala's
failure to comply with his obligation of transferring the material or physical
possession of lot 1880 to the vendee and for no other reason; hence, complainants
had nobody to blame but themselves. The fact that the plaintiff, Semenchuk, was
not awarded any damages, attorney's fees, and costs shows that respondent
attorney exerted his utmost to resist plaintiff's complaint.
2. Gross negligence and malpractice committed by respondent for failure to inform
his clients of the decision in case 2478: —
The matter in dispute with respect to this specific charge is whether or not
respondent notified his clients, the complainants herein, about the decision in case
2478. Respondent claims that he did inform his clients of the decision; complainants
insist the contrary.
We agree with the Solicitor General that there is sufficient evidence on hand to
prove that respondent neglected to acquaint his clients of the decision in case 2478.
As stated in the Solicitor General's report, the reaction of complainant Jose Alcala
when the writ of execution in said civil case was served upon him and his wife by a
sheriff was such that it betrayed a total unawareness of the adverse decision. The
evidence shows that when he was told about the sheriff's visit, Jose Alcala
immediately inquired from the trial Court the reason for the writ of execution and it
was only then that he was informed that a decision had been rendered, that his
lawyer received a copy thereof since April 19, 1963, and because no appeal was
taken the judgment became final and executory. Alcala then sought the help of his
brother, Atty. Ernesto Alcala, in Manila and the latter wrote to respondent inquiring
as to what steps were taken, if any, to prosecute an appeal from the decision in
question but respondent chose not to answer the letter. Thereafter, Alcala instituted
an action for damages and filed the instant complaint for disbarment.
As aptly observed by the Solicitor General:
Again, we do not think petitioner Alcala would have felt so aggrieved
and embittered by the loss of his right to appeal the decision in Civil
Case No. 2478 so as to take all these legal steps against respondent,
with all the attendant trouble and expense in doing so, if it is not true,
as he alleged, that the latter indeed did not notify him of said decision.
We believe and so submit, therefore, that respondent really failed to
inform petitioners of the decision in Civil Case No. 2478, and this was
also the finding made by the Court of First Instance of Albay in its
decision in Civil Case No. 2723 for damages filed by petitioners against
respondent, and by the Court of Appeals in the appeal taken by
respondent from said decision. (pp. 38-39, rollo)
Is respondent's failure to notify his clients of the decision sufficient cause for his
disbarment? Complainants answer the question in the affirmative, while on the
other hand, respondent prays that he be exonerated because, according to him,
granting arguendo that he failed to inform the complainants about the decision, the
truth is that said decision was fair and just and no damage was caused to
complainants by reason thereof.
On this point, We agree with the following appraisal of the evidence by the Solicitor
General:
In this connection, it is indeed true that although both the Court of First
Instance of Albay, in Civil Case No. 2723 for damages filed by
petitioners against respondent Atty. De Vera (pp. 30-34, Exh. "D", id.),
 and the Court of Appeals, in C.A.-G.R. No. 35267-R (the appeal taken
by respondent from the decision of the trial court in C.C. No. 2723),
found that respondent actually did not inform petitioners of the decision
in Civil Case No. 2478, still both courts also held that petitioners did not
sustain any damages as a result of said decision, for which reason the
trial court dismissed petitioners' action for damages against
respondent, which dismissal was affirmed by the Court of Appeals. We
quote the finding of the Court of First Instance of Albay in its decision in
Civil Case No. 2723 in this regard:
The second issue that has to be passed upon by the Court
is neither the plaintiffs are entitled to damages. On this
issue, the Court finds that the plaintiffs cannot recover
damages from defendant Atty. Honesto de Vera. No
evidence has been presented that they sustained damages
of the decision. Neither it has been shown that the decision
is not supported by the facts and the law applicable to the
case. Consequently, the plaintiffs are not entitled to
damages because of the failure of Atty. Honesto de Vera
to inform them of the decision.
"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. Fallible like any other human being, he is
answerable to 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. Moreover, a party seeking
damages resulting from a judgment adverse to
him which became final by reason of the
alleged fault or negligence of his lawyer must
prove his loss due to the injustice of the
decision. He cannot base his action on the
unsubstantiated and arbitrary supposition of
the injustice of the decision. (Tuzon vs.
Donato, 58 O.G. 6480)."
(Exh. "D", id.; pp. 33-34)
Significantly, petitioners did not appeal from the above decision, which
is an implied acceptance by them of the correctness of the findings
therein. Instead, it was respondent Atty. De Vera who appealed said
decision to the Court of Appeals (C.A.-G.R. No. 35267-R), and the
latter Court, although agreeing with the finding of the trial court that
respondent really did not inform petitioners of the decision in Civil Case
No. 2478 (Exh. "T"), affirmed, however, the lower court's finding that
petitioners were not entitled to the damages claimed by them by reason
of respondent's failure to notify them of the decision in Civil Case No.
2478. ... While the rule of res judicata in civil or criminal cases is not,
strictly speaking, applicable in disbarment proceedings, which is neither
a civil or a criminal proceeding intended to punish a lawyer or afford
redress to private grievances but is a proceeding sui generis intended
to safeguard the administration of justice by removing from the legal
profession a person who has proved himself unfit to exercise such trust
(p. 207, Martin, Legal and Judicial Ethics; Re Keenan, 86 ALR 679; De
Jesus-Paras vs. Vailoces, Adm. Case No. 439, April 12, 1961; In re
Montague & Dominguez, 3 Phil. 577, 588), still we consider the findings
of the trial court as well as of the Court of Appeals in the damage, suit
filed by petitioners against respondent Atty. De Vera based on the
same grounds now invoked in this disbarment case relevant and highly
persuasive in this case, especially as petitioners themselves have, as
already observed, accepted and admitted the correctness of said
findings. And we may add that we ourselves agree with respondent that
petitioners had not been prejudiced or damaged in any way by the
decision in Civil Case No. 2478, but that said decision appears in fact
to be more favorable to them than could have been the case if the trial
court had applied the law strictly against them in said case, ... (pp. 17-
19, Report. pp. 39-41, rollo; emphasis supplied).
The Solicitor General's Report continues and says:
True it is that petitioners do not appear to have suffered any material or
pecuniary damage by the failure of respondent Atty. De Vera to notify
them of the decision in Civil Case No. 2478. It is no less true, however,
that in failing to inform his clients, the petitioners, of the decision in said
civil case, respondent failed to exercise "such skill, care, and diligence
as men of the legal profession commonly possess and exercise in such
matters of professional employment" (7 C.J.S. 979). The relationship of
lawyer-client being one of confidence, there is ever present the need
for the client's being adequately and fully informed and should not be
left in the dark as to the mode and manner in which his interests are
being defended. It is only thus that their faith in counsel may remain
unimpaired (Oparel, Sr. vs. Aberia Adm. Case No. 595, July 30, 1971).
As it happened in this case, because of respondent's failure to notify
petitioners of the decision in Civil Case No. 2478, the latter were
entirely caught by surprise, resulting in shock and mental and
emotional disturbance to them, when the sheriff suddenly showed up in
their home with a writ of execution of a judgment that they never knew
had been rendered in the case, since their lawyer, the respondent, had
totally failed to inform them about the same. ... (pp. 23-24, Report, pp.
45-46, rollo; emphasis supplied).
We concur with the above-quoted observations and add that the correctness of the
decision in case 2478 is no ground for exonerating respondent of the charge but at
most will serve only to mitigate his liability. While there is no finding of malice,
deceit, or deliberate intent to cause damage to his clients, there is, nonetheless,
proof of negligence, inattention, and carelessness on the part of respondent in his
failure to give timely notice of the decision in question. Fortunately for respondent,
his negligence did not result in any material or pecuniary damage to the herein
complainants and for this reason We are not disposed to impose upon him what
may be considered in a lawyer's career as the extreme penalty of disbarment. As
stated in the very early case of In Re Macdougall:
The disbarment of an attorney is not intended as a punishment, but is
rather intended to protect the administration of justice by requiring that
those who exercise this important function shall be competent,
honorable, and reliable; men in whom courts and clients may repose
confidence. This purpose should be borne in mind in the exercise of
disbarment, and the power should be exercised with that caution which
the serious consequences of the action involves.
The profession of an attorney is acquired after long and laborious
study. It is a lifetime profession. By years of patience, zeal, and ability,
the attorney may have acquired a fixed means of support for himself
and family of great pecuniary value, and the deprivation of which would
result in irreparable injury. (3 Phil. 70, 77-78)
In the words of former Chief Justice Marshall of the United States Court:
On one hand, the profession of an attorney is of great importance to an
individual and the prosperity of his whole life may depend on its
exercise. The right to exercise it ought not to be lightly or capriciously
taken from him. On the other, it is extremely that the respectability of
the bar should be maintained and that its harmony with the bench
should be preserved. For these objects, some controlling power, some
discretion, ought to reside in the Court. This discretion, ought to be
exercised with great moderation and judgment; but it must be
exercised. (Ex parte Burr. 9 Wheat 529; Martin, Legal & Judicial Ethics
1972 Ed. p. 213.)
Although respondent's negligence does not warrant disbarment or suspension
under the circumstances of the case, nonetheless it cannot escape a rebuke from
Us as we hereby rebuke and censure him, considering that his failure to notify his
clients of the decision in question manifests a lack of total dedication or devotion to
their interest expected of him under his lawyer's oath and the Canons of
Professional Ethics. Respondent's inaction merits a severe censure from the Court.
WHEREFORE, on the basis of the evidence, the report and recommendation of the
Solicitor General, and the fact that this appears to be the first misconduct of
respondent in the exercise of his legal profession, We hereby hold said respondent
GUILTY only of simple negligence in the performance of his duties as a lawyer of
complainants, and We hereby SEVERELY CENSURE him. Let this decision be
noted in respondent's record — as a member of the Bar — in this Court.
SO ORDERED.
 [G.R. No. L-30543. August 31, 1970.]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. RODRIGO
CAWILI, Defendant-Appellant.
RESOLUTION
PER CURIAM, p:
FERNANDO, J.:
The question before us is whether or not Hospicio O. Zapata, a member of
the Philippine Bar, is to be subjected to disciplinary action. He was, under
our resolution of August 3, 1970, 1 given a period of ten days after receipt
thereof to explain why no such action should be taken against him in view
of his failure to submit the brief as counsel de parte within the
reglementary period. He filed an explanation in a memorandum submitted
to us on August 22, 1970, admitting that he was remiss in his obligation to
file said brief, but seeking to minimize such failure on his part with the
allegation that the accused, Rodrigo Cawili, was in a state of indigence
resulting not being paid but also in his partly assuming the expenses
entailed in such defense. After invoking such circumstances as the
expenses incident on the printing of the brief being beyond the power of
the wife of the accused to bear and that he was not called upon to
continue spending on behalf of such client, he would have us overlook his
failure to file the brief as in his opinion "the mere review of the record of
the case will readily show that the decision is contrary to law and the
evidence adduced during the trial, . . ." 2 He did tender his apology,
coupled with a promise that an incident of such character will not be
repeated in the future.
It cannot be denied that the failure of counsel to submit the brief within the
reglementary period is an offense that entails disciplinary action. The
recital of the circumstances on which counsel would seek to reduce its
gravity do not call for exculpation. He could have sought the permission to
file a mimeographed brief, or, at the very least, he could have informed us
of the difficulties attendant on defending his client. For him to blithely
assume that a mere reading of the record would suffice to discharge an
obligation not only to his client but to this Court is to betray a degree of
irresponsibility. It is not in keeping, even, with the minimal standards
expected of membership in the bar to be so lacking in elementary courtesy
that this Court was not even informed of his inability to comply with what
was incumbent on him. His conduct was therefore inexcusable, although
the explanation he tendered and the difficulties under which he worked
would, to a certain degree, invite less than full punishment.
WHEREFORE, respondent Hospicio O. Zapata is hereby reprimanded for
his failure to submit his brief within the reglementary period, and
admonished to be much more careful in the fulfillment of his obligations to
his client and to this honorable Tribunal.
[G.R. No. 7725. January 17, 1913.] In the matter of the suspension of L.
PORTER HAMILTON from the practice of law.
L. Porter Hamilton in his own behalf.
Solicitor-General Harvey for the Government.
SYLLABUS
1. ATTORNEY AND CLIENT; DISBARMENT OF
SUSPENSION. — The accused as attorney at law, advised and counseled
the plaintiff in a certain legal proceeding and prepared a petition therein,
which was filed with the clerk of the court; thereafter, and without warning
to the plaintiff, he entered his appearance for the defendant in the same
case and presented a demurrer to the petition which he had filed for the
plaintiff, still having in his possession certain documents in the case,
belonging to the plaintiff, which were surrendered only upon order of the
court; he further addressed to another person a letter containing a covert
threat, suggesting the advisability of the latter's employing him as
counsel. Held: That the record shows a flagrant and willful violation on the
part of the accused of his professional obligations, and a reckless
disregard of the fundamental ethics of his profession that justify his
suspension from the practice of law for a period of six years.
DECISION
These are disbarment proceedings instituted against L.
Porter Hamilton, an attorney at law, who was practicing his
profession in the Court of First Instance of Cebu and in other courts of
these Islands, at the time the charges herein set forth were formulated.
The charges were filed by the fiscal upon the order of the
Honorable Adolph Wislizenus, judge of the Eleventh Judicial District, and
the formal accusation sets out four separate counts of professional
misconduct, as follows:
"1. The Attorney L. Porter Hamilton,
being such for the plaintiff Luciano Andrada, in civil
cause No. 1344, defended and counseled, without
the latter's consent, the defendant Isabelo
Alburo in the same matter or business.
"2. The attorney L. Porter Hamilton,
having received from the plaintiff Luciano
Andrada, in the above-cited case, various documents
among which were vouchers or notes signed by some
municipal policemen of Cebu and countersigned by
the defendant Isabelo Alburo, did maliciously and
willfully keep and deny that he had received said
documents, for the purpose of thwarting the complaint
of Luciano Andrada prepared by himself on said
instruments, as he had undertaken the defense of the
defendant Isabelo Alburo.
"3. The attorney L. Porter Hamilton, being
such in various affairs of Isabelo Aburo, betrayed his
client by instigating complaints instigated by him.
"4. The attorney L. Porter Hamilton,
under date of April 8, 1911, proposed to S.L. Joseph
of Cebu that he be employed as attorney for the
concern know as the S.L. Joseph Lumber Yard, with
a salary of P1,200 a year, under a threat to compel
the said Joseph to accept his proposition.
"Therefore, the fiscal respectfully begs
the court to proceed in legal manner to suspend the
attorney L. Porter Hamilton from the practice of his
profession and to recommend to the Honorable
Supreme Court his exclusion from the list of those
admitted to practice law in the courts of the Islands."
The defendant answered formally denying the charges, and
the cause came on for final hearing before Honorable Jose. C. Abreu,
acting as special judge for the trial of this case, on January 22, 1912, and
upon the proofs adduced, an order of suspension from the practice of
law was entered against the defendant, and the case is now before this
court for review.
By agreement of counsel the case was submitted on briefs,
and on the record of the proceedings had in the court below. The only
matters which need to be inquired into at this time relate to the conduct
of the defendant in civil cause No. 1344 in the Court of First Instance of
Cebu, entitled Luciano Andrada vs. Isabelo Alburo, and his
conduct in addressing to S. L. Joseph the letter referred to under the
fourth count of the accusation and filed as Exhibit B for the prosecution,
as to both of which matters the court below found the respondent guilty
of unprofessional conduct of so grave a character as to justify and
require his suspension.
It appears from the record that the defendant advised and
counseled with one Luciano Andrada in regard to a claim which the latter
had against Isabelo Alburo, and that he prepared for Andrada a formal
petition which was filed in the office of the clerk of the Court of First
Instance of Cebu under the caption "Luciano Andrada vs. Isabelo Alburo,
civil case No. 1344;" and that he also prepared for the plaintiff
Andrada in that cause papers relating to attachment proceedings against
property of the defendant, Alburo. The petition as well as the other
 papers filed with the clerk in this case were signed by the plaintiff,
Andrada, who himself delivered them to the clerk. Mr. Hamilton's name
was not noted as attorney of record for Andrada. It appears that there
was some formal defect in the papers relating to the attachment
proceedings, and on September 16, 1911, the
defendant Hamilton addressed the following communication to the clerk
of the court:
"[L. Porter Hamilton, lawyer, Cebu, Cagayan, and
Surigao, P.I.]
"CEBU, CEBU, P.I. September 16, 1911.
"CLERK OF THE COURT OF FIRST INSTANCE
Cebu, Cebu, P.I.
"Sir: I beg that you permit Mr. Luciano Andrada to
get sworn statement in civil cause No. 1344, to be
exchanged for another true and correct sworn
statement; and further I desire to invite your
attention to the rights this gentlemen has under
section 34 of Act No. 190, the Code of Civil
Procedure.
"Respectfully,
(Sgd.) "L. PORTER HAMILTON."
On October 2 following, the defendant entered his
appearance as attorney of record for the defendant, Alburo, in civil case
No. 1344 as shown by the following, which forms a part of the
record in that case:
"[United States of America, Philippine Islands. Court
of First Instance of the Province of Cebu. Luciano
Andrada, plaintiff, vs. Isabelo Alburo, defendant.
Civil cause No. 1344.]
"To the clerk:
"The clerk will please record my
appearance for the defendant above-mentioned, Mr.
Isabelo Alburo.
"Cebu, Cebu, P.I., October 2, 1911.
(Sgd.) "L. PORTER HAMILTON,
"Attorney of the defendant."
On the 12th of October, defendant as attorney for Alburo
entered the following demurrer to the petition which had been prepared
by him for Andrada:
"[United States of America, Philippine
Islands. Court of First Instance of the Province of
Cebu. Luciano Andrada, plaintiff, vs. Isabelo Alburo,
defendant. Civil cause No. 1344.]
"DEMURRER.
"The defendant in this cause through the
undersigned attorney demurs to the complaint in this
case on the following grounds:
"1. That the facts alleged do not
constitute sufficient cause for action.
"2. That complaint is vague and
ambiguous.
"Cebu, Cebu, P.I., October 12, 1911.
(Sgd.) "L. PORTER HAMILTON,
"Attorney for the defendant.
Received to-day, October 12, 1911.
(Sgd.) "L. ANDRADA."
On the 13th of October an order was entered by the Court
citing the defendant to appear before the court on the following day, and
explain his actionin appearing as the attorney for the defendant in case
No. 1344. As result of the investigation made by the court at that time, the
fiscal was instructed to file the formal accusation which forms the basis of
the present proceedings.
On the 14th of October the court made this additional
order in the case:
"The court provisionally directs that Mr.
Porter Hamilton ceased to acts as attorney for the
defendant in this cause and the clerk of this court is
prohibited from receiving any document or paper
presented in such character by Mr. Porter Hamilton;
and the court further directs that immediately and
without delay Mr. Hamilton deposit with the clerk of
this court all the documents and papers of any nature
which he has at any time received from Mr. Luciano
Andrada, plaintiff in this case.
"Cebu, Cebu, October 14, 1911.
(Sgd.) "ADOLPH WISLIZENUS,
"Judge of the Eleventh Judicial District."
In compliance with the foregoing order the defendant remitted
to the court all the papers and documents in his possession relating to
case No. 1344, as evidenced by the following communication, which
forms a part of this record:
"[L. Poter Hamilton, lawyer, Cebu, Cagayan, and
Surigao, P.I.]
"CEBU, CEBU, P.I., October 14, 1911.
"COURTS OF FIRST INSTANCE FOR THE
PROVINCE OF CEBU, P.I.
"Sir: In compliance with the order of this
court of this date I have the honor to transmit to your
possession all the papers, documents, etc.,
belonging to Sr. Luciano Andrada in the case of
Luciano Andrada, plaintiff, vs. Isabelo Alburo,
defendant, civil cause, No. 1344, and also all of the
other papers of Sr. Andrada on all other matters
which I have found in my office.
"Respectfully, (Sgd.) "L.
PORTER HAMILTON."
Upon the hearing of the disbarment proceedings in the lower
court Luciano Andrada testified that the defendant had advised and
counseled with himin regard to his claim against Isabelo Alburo, and that
an understanding had been entered into touching the fees to be charged
for his services; that the latter was his attorney with respect to this claim,
and that as such he delivered to him certain vales and papers relating to
the claim, and that he was surprised when defendant appeared as
attorney for Alburo.
The defendant does not offer any satisfactory explanation of
his conduct in this matter. He admits that Andrada came to his office an
consulted with him regarding this claim against Alburo, and that he
prepared the petition and other papers in the case. He insists, however,
that he did this solely as a favor to Andrada and that he told Andrada at
the time that he could not act as his attorney in the matter. In his brief the
defendant states that he refused to appear as the attorney of record for
Andrada for two reasons: First, because he failed to secure him his fee,
and second, because Señores Martinez and Vamenta were Andrada's
regular attorneys at that time. The record clearly establishes, however,
that Andrada had no attorney of record in this matter. It is possible that
he had consulted other attorneys with reference to his claim against
Alburo, but so far as the record shows the defendant is the only person
who assumed the relationship of attorney to Andrada. He accepted from
him the papers relating to his claim, and to all intents and purposes he
was his attorney so far as such relationship could be established by overt
acts. He did all that was necessary to establish between himself and
Andrada the confidential relationship of attorney and client. He accepted
from Andrada such papers as he had relating to the claim against Alburo,
papers which, as Andrada testified, disclosed both the strength an the
weakness of his claim. He counseled with him regarding the subject
matter of the suit and prepared all of the necessary papers for the
institution of the litigation, and in fact he rendered all the necessary
services of an attorney with reference to the whole matter up to the time
of his appearance as attorney for the opposing litigant. The only thing
that he had not don was to allow his name to be affixed to the papers
filed in the office of the clerk, and this act, far from being to his credit, can
only serve as cumulative evidence of the fact that he was rendering
professional services. Andrada claims that he was working for a
stipulated fee, but it is not necessary to determine here whether he was
acting as he claims as a matter of favor to Andrada. He voluntarily
assumed the relationship of attorney and he received from the latter
every confidence that such a relation implies; he assumed the obligation
of preparing the petition and other papers in the case an o expediting the
same to the point where an answer was forthcoming from the defendant
to the suit; and then without warning to Andrada he entered his
appearances as attorney for the defendant and filed a demurrer to the
very petition which he had prepared for the plaintiff. At the very time that
he appeared for the defendant he had in his possession papers
belonging to Andrada which pertained to the litigation and which had
been delivered to him as the attorney for the plaintiff, and these were
only delivered up at the order of the court.
What may have been his motive in this matter we are only left
to conjecture, but from every standpoint his conduct was
reprehensible in the highest degree. The record clearly establishes the
relationship of attorney an client between the defendant and Andrada,
and conduct of defendant was a violation of the confidence which
naturally resulted from this relationship. It was a violation of his oath as
an attorney and officer of this court, in that he did not offer his
services in good faith to his client an failed to serve his client's interest as
it was his client and failed to serve his client's interest as it was his sworn
duty to do. If in serving Andrada in the capacity that he did, he was
acting in good faith, and if there had been any reasonable grounds on
which he could have justified his transferring his services to the opposing
litigant, he should have, and, we take it, he would have, informed
Andrada his intentions and delivered up to him such papers as he had
relating to his claim. But without seeking permission from Andrada or the
court, and without disclosing his intentions in the matter, he suddenly
and unexpectedly, to the surprise of his former client,
appeared in opposition to the very suit he had instituted. His whole
action in the premises reveals a distored conception of the ethics of his
profession and an utter disregard for his duty and his obligations to both
his client and the court.
The second charge of professional misconduct against the
defendant relates to the following letter addressed by the defendant to
Mr. S.L. Joseph, viz:
[L. Porter Hamilton, lawyer, Cebu, Cagayan, and
Surigao, P.I.]
"CEBU, CEBU, P.I., April 8, 1911.
"Mr. S.L. JOSEPH, Cebu, Cebu, P.I.
"Dear Sir: It has been some time since we
have had anything to say relative to the proposition of
keeping up your collections and looking after your
delinquent contract men during your absence in the
U.S. What is your opinion relative to the proposition
of P,200 per year, or have you dropped your original
idea?
"By the way, I have an offer of P500 to
make a thorough investigation into the reason why
the Mpl., Prov., and Ins. Covmts. buy so much lumber
an so exclusively from the S.L. Joseph Lumber Yard,
and P500 more if the investigation brings satisfactory
results.
"What do you know about that and what
do you think of the proposition?
"Very respectfully,
(Sgd.) "L. PORTER HAMILTON."
The lower court in passing upon this letter held that second
paragraph was in the nature of a threat inserted in this letter solely to
influence Mr. Joseph in the employment of the defendant in the matter
referred to in the first paragraph, and that the defendant in writing such a
letter was guilty of such gross professional misconduct as showed him to
be unworthy of that esteem an confidence which is necessary in one who
aspires to discharge the important functions of an attorney.
The defense interposed by defendant to the charge of
professional misconduct relating to this letter was that hi did not use the
language referred to as a threat in any sense, an that it was never so
understood by Mr. Joseph; that he had been Mr. Joseph's attorney with
reference to other matters an had advised him with reference to the best
interests of his business, and that the information imparted in the second
paragraph of the letter was simply referred to in an incidental way. It is
further contended that the letter in question should have been
considered as a privileged communication, it having been addressed by
him reason it is not proper to consider it a evidence in a proceeding of
this nature.
The letter is self-explanatory and needs but little comment
from the court. A careful examination of the language used by the
defendant in the second paragraph of this letter discloses that the
defendant does not say that he will not accept such employment, or that
he refused to accept such employment. The only reasonable
interpretation that the language conveys is that he has the matter under
advisement and that he is holding his final decision inabeyance. It is
further quite evident from the context of the first paragraph of the letter
that Mr. Joseph had apparently dropped the question of employing
defendant with reference to the matter proposed, and that defendant was
anxious that he take the matter up for the consideration. No reasonable
explanation was given for the incorporation of the second
paragraph in this particular letter, nor does any reason suggest itself,
unless it be that it that it was inserted there as a threat. Following as it
does immediately upon the solicitation for employment, the reasonable
and logical interpretation which it bears is that it was used as a threat to
induce Mr. Joseph to give favorable consideration to the proposition of
the trial court and it is also our conclusion.
The contention that this letter is a privileged communication
is not tenable. The general rule is well recognized that professional
communications are privileged, but that statements made by a client to
his attorney, or the statement of an attorney to his client fall within this
rule only when it is shown that the relation of attorney and client existed
with reference to the matter to which the communication relates. (23 Am.
& Eng. Ency. of Law, 58.) Furthermore, ina proceeding of this nature,
where the alleged client himself is not insisting on the privilege, counsel
can not be permitted to shield himself behind the privilege.
The context of the whole letter in the present case shows
conclusively that no such relation existed with reference to the subject
matter of the letter. The defendant was soliciting employment, and this
very fact is evidence that the relation of attorney and client did not exist.
As to the second paragraph of the letter we can not accept the
contention that this information was imparted as professional advice.
After a very careful examination of the whole record we have
regretfully reached the conclusion that the facts before us show a
flagrant and willful violation on the part of defendant of his professional
obligations, and a reckless disregard of the fundamental ethics of his
profession.
We have encountered some difficulty in determining whether
the name of the defendant in these proceedings should be permanently
stricken from the roll, or whether, under all the circumstances, an order
suspending him for a substantial period would sufficiency subserve the
interests of justice, and of the administration of justice in these Islands.
Under the provisions of the Spanish Penal Code (art. 357) an
attorney found guilty of the unprofessional conduct of which, as appears
from the recordin these proceedings, this defendant was guilty is liable to
suffer the penalty of temporary special disqualification, that is to say,
disqualification for a period of from six years and one day to twelve
years; and after some hesitation we have concluded that the suspension
of the defendant or a period of six years will secure the ends for which
these proceedings were instituted. It is true, of course, that, as we said
by Mr. Justice Hooker, In re Shepard (109 Mich. 631).
"This is not a proceeding by way of
punishment, though the deprivation of the privileges
of an attorney may be a matter of serious importance
to a practitioner. it is a measure necessary to the
protection of the public, who have right to expect that
courts will be vigilant in withholding, and, if already
given, withdrawing, their certificates of qualification
and character, upon which the public rely."
But in determining the question whether the defendant should
be suspended or permanently described, it would seem proper to
have in mind the provisions of the statute fixing the penalty to be
imposed in the event that a criminal action had been instituted against
the defendant
Let the proper orders be entered suspending the
defendant in these proceedings from the practice of law for a period of
six years from the date of his original suspension in the court below, with
the costs of these proceedings against him.
Arellano, C.J., Johnson, Carson, and Trent, JJ.. concur.
||| (In Re: Hamilton, G.R. No. 7725, [January 17, 1913], 24 PHIL 100-111)
A.C. No. 5303 HUMBERTO C. LIM, JR., in behalf of PENTA RESORTS
CORPORATION/Attorney-in-Fact of LUMOT A. JALANDONI, Complainant, VS
ATTY. NICANOR V. VILLAROSA, Respondent. Promulgated: June 15, 2006
RESOLUTION
CORONA, J.
Humberto C. Lim Jr.[1] filed a verified complaint for disbarment against
respondent Atty. Nicanor V. Villarosa on July 7, 2000.[2] On February 19, 2002,
respondent moved for the consolidation of the said complaint with the following
substantially interrelated cases earlier filed with the First Division of this Court:
1. Administrative Case No. 5463: Sandra F. Vaflor v.
Atty. Adoniram P. Pamplona and Atty.
Nicanor V. Villarosa;
2. Administrative Case No. 5502: Daniel A. Jalandoni v.
Atty. Nicanor V. Villarosa.
In a resolution dated February 24, 2003, this Court considered Administrative
Case No. 5463 closed and terminated.[3] On February 4, 2004, considering the
pleadings filed in Administrative Case No. 5502, the Court resolved:
(a) to NOTE the notice of the resolution dated
September 27, 2003 of the Integrated Bar of the
Philippines dismissing the case against
respondent for lack of merit; and
(b) to DENY, for lack of merit, the petition filed by
complainant praying that the resolution of the
Integrated Bar of the Philippines dismissing the
instant case be reviewed and that proper
sanctions be imposed upon respondent.[4]
No motion for reconsideration of the aforesaid denial in
Administrative Case No. 5502 appears in the records. The Court is now called
upon to determine the merits of this remaining case (A.C. No. 5303) against
respondent.
The complaint read:
AS FIRST CAUSE OF ACTION
xxx xxx xxx
- II -
That respondent is a practicing lawyer and a member of
the Integrated Bar of the Philippines, Bacolod City,
Negros Occidental Chapter. That sometime on
September 19, 1997, Lumot A. Jalandoni,
Chairman/President of PRC was sued before RTC,
Branch 52 in Civil Case No. 97-9865, RE: Cabiles et al.
vs. Lumot Jalandoni, et al.The latter engaged the legal
services of herein respondent who formally entered his
appearance on October 2, 1997 as counsel for the
defendants Lumot A. Jalandoni/Totti Anlap Gargoles.
Respondent as a consequence of said Attorney-Client
relationship represented Lumot A. Jalandoni et al in the
entire proceedings of said case. Utmost trust and
confidence was reposed on said counsel, hence delicate
and confidential matters involving all the personal
circumstances of his client were entrusted to the
respondent. The latter was provided with all the
necessary information relative to the property in question
and likewise on legal matters affecting the corporation
(PRC) particularly [involving] problems [which affect]
Hotel Alhambra. Said counsel was privy to all
transactions and affairs of the corporation/hotel.
- III -
That it was respondent who exclusively handled the
entire proceedings of afore-cited Civil Case No. 97-9865
[and] presented Lumot A. Jalandoni as his witness prior
to formally resting his case. However, on April 27,
1999 respondent, without due notice prior to a
scheduled hearing, surprisingly filed a Motion to
withdraw as counsel, one day before its scheduled
hearing on April 28, 1999. A careful perusal of said
Motion to Withdraw as Counsel will conclusively show
that no copy thereof was furnished to Lumot A.
Jalandoni, neither does it bear her conformity. No doubt,
such notorious act of respondent resulted to (sic)
irreparable damage and injury to Lumot A. Jalandoni, et
al since the decision of the court RTC, Branch 52 proved
adverse to Lumot A. Jalandoni, et al. The far reaching
effects of the untimely and unauthorized withdrawal by
respondent caused irreparable damage and injury to
Lumot A. Jalandoni, et al; a highly meritorious case in
favor of his client suddenly [suffered] unexpected defeat.
- IV -
That the grounds alleged by respondent for his
withdrawal as counsel of Lumot A. Jalandoni, et al. was
that he is [a] retained counsel of Dennis G. Jalbuena and
the Fernando F. Gonzaga, Inc. It was Dennis G.
Jalbuena who recommended him to be the counsel of
Lumot A. Jalandoni, et al. It is worthy to note that from
the outset, respondent already knew that Dennis G.
Jalbuena is the son-in-law of Lumot A. Jalandoni being
married to her eldest daughter, Carmen J.
Jalbuena. The other directors/officers of PRC were
comprised of the eldest sibling of the remaining children
of Lumot A. Jalandoni made in accordance with her
wishes, with the exception of Carmen J. Jalbuena, the
only daughter registered as one of the incorporators of
PRC, obviously, being the author of the registration itself
[sic]. Respondent further stated that he cannot refuse to
represent Dennis G. Jalbuena in the case filed against
the latter before the City Prosecutors Office by
PRC/Lumot A. Jalandoni due to an alleged retainership
agreement with said Dennis G. Jalbuena. [He] likewise
represented Carmen J. Jalbuena and one Vicente Delfin
when PRC filed the criminal complaint against them. On
April 06, 1999, twenty-one (21) days prior to
respondents filing of his Motion to Withdraw as Counsel
of Lumot A. Jalandoni, et al., respondent entered his
appearance with Bacolod City Prosecutor OIC-Vicente
C. Acupan, through a letter expressly stating that
effective said date he was appearing as counsel for both
Dennis G. Jalbuena and Carmen J. Jalbuena and
Vicente Delfin in the Estafa case filed by the corporation
(PRC) against them. Simply stated, as early as April 6,
1999 respondent already appeared for and in behalf of
the Sps. Carmen and Dennis Jalbuena/Vicente Delfin
while concurrently representing Lumot A. Jalandoni, et
al. in Civil Case No. 97-9865. However, despite being
fully aware that the interest of his client Lumot A.
Jalandoni [holding an equivalent of Eighty-two (82%)
percent of PRCs shares of stocks] and the interest of
PRC are one and the same, notwithstanding the fact that
Lumot A. Jalandoni was still his client in Civil Case No.
97-9862, respondent opted to represent opposing clients
at the same time. The corporations complaint for estafa
(P3,183,5525.00) was filed against the Sps. Dennis and
Carmen J. Jalbuena together with UCPB bank manager
Vicente Delfin. Succeeding events will show that
respondent instead of desisting from further violation of
his [lawyers] oath regarding fidelity to his client, with
extreme arrogance, blatantly ignored our laws on Legal
Ethics, by palpably and despicably defending the Sps.
Dennis and Carmen J. Jalbuena in all the cases filed
against them by PRC through its duly authorized
representatives, before the Public Prosecutors Office,
Bacolod City (PP vs. Sps. Dennis and Carmen J.
Jalbuena for False Testimony/Perjury, viol. of Art. 183
RPC under BC I.S. No. 2000-2304; viol. of Art. 363, 364,
181 and 183 RPC under BC I.S. 2000-2343, PP vs.
Carmen J. Jalbuena for viol. of Art. 315 under BC I.S.
2000-2125 and various other related criminal cases
against the Sps. Dennis and Carmen Jalbuena).
AS SECOND CAUSE OF ACTION
xxx xxx xxx
 -I-
xxx xxx xxx
There is no dispute that respondent was able to acquire
vast resources of confidential and delicate information
on the facts and circumstances of [Civil Case No. 97-
9865] when Lumot A. Jalandoni was his client which
knowledge and information was acquired by virtue of
lawyer-client relationship between respondent and his
clients. Using the said classified information which
should have been closely guarded respondent did then
and there, willfully, unlawfully, feloniously conspired and
confabulated with the Sps. Dennis and Carmen J.
Jalbuena in concocting the despicable and fabricated
charges against his former clients denominated as PP
vs. Lumot A. Jalandoni, Pamela J. Yulo, Cristina J. Lim
and Leica J. Lim for viol. of Art. 172 of Revised Penal
Code due to a board resolution executed by the
corporation which the Sps. Jalbuena, with the assistance
of herein respondent, claimed to have been made
without an actual board meeting due to an alleged lack
of quorum, [among other things]. Were it not for said
fiduciary relation between client and lawyer, respondent
will not be in a position to furnish his conspirator spouses
with confidential information on Lumot A.
Jalandoni/PRC, operator of Alhambra Hotel.
- II -
Adding insult to injury, respondent opted to deliberately
withhold the entire case file including the marked
exhibits of the Cabiles case for more than three (3)
months after his untimely unilateral withdrawal
therefrom, despite repeated demands from [his]
client. On July 26, 1999, capitalizing on his knowledge
of the indispensability of said documents particularly the
marked exhibits, which deadline to file the formal offer of
exhibits was continually impressed upon the new
counsel by the court, respondent suddenly interposed an
amount of five thousand (P5,000.00) pesos as
consideration prior to or simultaneous to the turnover of
said documents. [On] July 29, 1999, left with no other
alternative owing to the urgency of the situation, PRC
issued Check No. 2077686 for P5,000.00 in payment
thereof. This was duly received by respondents office on
the same date. Such dilatory tactics employed by
respondent immensely weakened the case of Lumot A.
Jalandoni eventually resulting to (sic) an adverse
decision against [her].
Further demonstrating before this Honorable Court the
notoriety of respondent in representing conflicting
interest which extended even beyond the family
controversy was his improper appearance in court in
Civil Case No. 99-10660, RE: Amy Albert Que vs. Penta
Resorts Corp., this time favoring the party opponent of
defendant who is even outside the family circle. During
the pre-trial hearing conducted on May 5, 1999, while
still [holding] exclusive possession of the entire case file
of his client in Civil Case No. 97-9865, respondent
brazenly positioned himself beside Atty. Adoniram P.
Pamplona, counsel of plaintiff [in] a suit against his client
Lumot A. Jalandoni/PRC, coaching said counsel on
matters [he was privy to] as counsel of said client. Facts
mentioned by said counsel of the plaintiff starting from
the last par. of page 25 until and including the entire first
par. of page 26 were the exact words dictated by
respondent. The entire incident was personally
witnessed by herein complainant [who was] only an
arms length away from them during the hearing.
However, the particular portion showing the said
irregular acts of respondent was deliberately excluded
by the court stenographer from the transcript, despite
her detailed recollection and affirmation thereof to herein
complainant. This prompted the new counsel of Lumot
A. Jalandoni/PRC to complain to the court why Atty.
Nicanor Villarosa was coaching Atty. Pamplona in such
proceedings. Said corrections were only effected after
repeated demands to reflect the actual events which
[transpired] on said pre-trial.[5] (emphasis ours)
In an addendum to the July 4, 2000 complaint, Lim also pointed to certain acts
of respondent which allegedly violated the Rules of Court ― perpetration of
falsehood and abuse of his influence as former public prosecutor. These
supposedly affected the status of the cases that Lim filed against the clients of
respondent.[6]
In a motion to dismiss dated October 30, 2000, respondent claimed that the
complainant violated Circular No. 48-2000 because, in his verification, Lim
stated:
3. That [he] prepared this instant complaint for
disbarment against Atty. Nicanor V. Villarosa, read its
contents, the same are all true and correct to [his] own
personal knowledge and belief.[7] (emphasis ours)
Section 4, Rule 7 of the Rules of Court explicitly provides that:
SEC. 4. Verification. Except when otherwise specifically
required by law or rule, pleadings need not be under
oath, verified or accompanied by affidavit. (5a)
A pleading is verified by an affidavit that the affiant has
read the pleading and that the allegations therein are
true and correct of his personal knowledge or based on
authentic records.
A pleading required to be verified which contains
verification based on information and belief or upon
knowledge, information and belief, or lacks a proper
verification, shall be treated as an unsigned
pleading. (As amended, A.M. 00-2-10, May 1, 2000.)
(emphasis ours)
While the Rules provide that an unsigned pleading produces no legal
effect,[8] the court may, in its discretion, allow such deficiency to be remedied if
it appears that the same was due to mere inadvertence and not intended for
delay.[9] We find that Lim was not shown to have deliberately filed the pleading
in violation of the Rules.
In his comment dated December 1, 2000, respondent, reiterating his ground for
the dismissal of the complaint, added:
[that] complainant Humberto C. Lim, Jr. has not only
violated the Rule on Civil Procedure but he
was/is NOT duly authorize[d] by the Penta Resorts
Corp. (PRC) nor [by] Lumot A. Jalandoni to file this
complaint against [him]. Neither [was Lim] a proper party
to file this complaint. This fact is an additional ground to
have his case dismissed because Humberto C. Lim Jr.
exceeded whatever authority was granted to him as
embodied in a resolution and the Special Power of
Attorney allegedly granted to him by the
complainants.[10]
To bolster his assertion that the complaint against him was unfounded,
respondent presented the following version in his defense:
FACTS OF THE CASE
xxx xxx xxx
That Mrs. Jalandoni has two sons-in-law, namely Dennis
G. Jalbuena married to her daughter, Carmen J.
Jalbuena, and Humberto C. Lim Jr., the herein
complainant married to her daughter, Cristina J. Lim.
That Mrs. Lumot Jalandoni organized a corporation
namely the Penta Resorts Corporation (PRC) where she
owned almost ninety seven percent (97%). In other
words, in reality, Penta Resorts Corporation is a single
proprietorship belonging to Mrs. Jalandoni. That the only
property of the corporation is as above-stated, the
Alhambra Hotel, constructed solely through the effort of
the spouses Jalbuena on that parcel of land now claimed
by the Cabiles family.
 That sometime on the year 1997 the case above-cited
(Civil Case No. 97-9865) was filed before the court
against the sisters.
That [he], being RETAINED counsel of the
spouses Dennis and Carmen J. Jalbuena
was RECOMMENDED by the spouses to the sisters to
answer the complaint filed against them.
II.
That as counsel to the sisters, [he] filed a Motion for
Extension Of Time To File Answer and ultimately, [he]
filed an Answer With Counter-Claim And Prayer For
Issuance Of Writ Of Preliminary Injunction.
That reading the Answer it is clear that the defense of
the sisters totally rest on public documents (the various
titles issued to the land in question because of the series
[of changes] in ownership) and the sisters and their
parents actual occupation and possession thereof. xxx
xxx xxx
Mr. Lim[s] accusation against [him] in the light of the
above-facts is the best evidence of Humberto C. Lim,
Jr.s penchant for exaggeration and distortion of the
truth.Since the defense of the sisters to retain ownership
of the land in question is based
on PUBLIC documents, what delicate and confidential
matters involving personal circumstances of the sisters
allegedly entrusted to [him], is Mr. Humberto C. Lim, Jr.
talking about in paragraphs I and II of his Complaint?
What [privity] to all transactions and affairs of the
corporation/hotel is he referring to? Whatever
transactions the corporation may have been involved in
or [may be getting involved into], is totally immaterial and
irrelevant to the defense of the sisters.
There was nothing personal [about the] circumstances
of the sisters nor transactions of the corporation [which
were] discussed. The documents being offered as
evidence, [he] reiterate[s] for emphasis, are public; the
presumption is that the whole world knows about them.
That [he] [also] vehemently den[ies] another distorted
allegation of Mr. Lim that [he] represented Mrs.
Jalandoni [in] the entire proceedings of [the] case. [Lim]
himself attested that [he] [filed] [his] Motion to Withdraw
As Counsel, dated April 26, 1999 , before the trial court,
sometime on April 27, 1999. How then could [he] have
represented Mrs. Jalandoni for [the] entire proceedings
of the case?
Further, Mr. Lim intentionally hid from this Honorable
Court the important fact that [his] Motion to Withdraw
was APPROVED by the trial court because of
the possibility of a conflict of interest. xxx xxx xxx. [11]
Respondent discredited Lims claim that he deliberately withheld the
records of the cited civil case. He insisted that it took him just a few days, not
three months, to turn over the records of the case to Lim.[12] While he admitted
an oversight in addressing the notice of the motion to withdraw as counsel to
Mrs. Totti Anlap Gargoles instead of Mrs. Jalandoni at Hotel Alhambra, he
maintained that it was the height of hypocrisy to allege that Mrs. Jalandoni was
not aware of his motion to withdraw[13]since Mrs. Gargoles is Mrs. Jalandonis
sister and Hotel Alhambra is owned by PRC which, in turn, actually belongs to
Mrs. Jalandoni. Respondent also argued that no prejudice was suffered by Mrs.
Jalandoni because she was already represented by Atty. Lorenzo S. Alminaza
from the first hearing date.[14] In fact, respondent contended, it was he who was
not notified of the substitution of counsels.[15]
As to the bill of P 5,000, respondent stated:
That Mr. Lim begrudge[s] [him] for billing
Mrs. Jalandoni Five Thousand (Php5,000.00) Pesos. Mr.
Humberto C. Lim Jr. conveniently forgets that the net
worth of the property together with its improvements,
under litigation in that Cabiles, et al. vs. Gargoles et al.
case, is a minimum of THIRTY MILLION
(Php30,000,000.00) PESOS then, and more so
now. [He] cannot find any law which prohibits a counsel
from billing a client for services in proportion to the
services he rendered.[16]
In view of these developments, respondent was adamant that:
the only real question to be answered in this complaint
is why Mr. Lim so consistently [determined] to immerse
the Jalandoni family [in] a series of criminal and civil suits
and to block all attempts to reconcile the family by
prolonging litigations, complaints and filing of new ones
in spite of the RESOLUTION of the corporation and the
UNDERTAKING of the members.[17]
On June 18, 2001, the Court resolved to refer the complaint to the
Integrated Bar of the Philippines (IBP) for investigation. Commissioner Lydia A.
Navarro made the following report and recommendation:
xxx xxx xxx
After going over the [pieces of evidence] submitted by
the parties[,] the undersigned noted that from the onset,
PRC had a case wherein respondent was its
counsel.Later on, complainant had a case against
spouses Jalbuena where the parties were related to
each other and the latter spouses were represented by
the respondent as their retained counsel; after
respondent had allegedly withdrawn as counsel for the
complainant in Civil Case No. 97-9865.
Being the husband of one of the complainants which
respondent himself averred in his answer, it is incumbent
upon Humberto Lim Jr. to represent his wife as one of
the representatives of PRC and Alhambra Hotel in the
administrative complaint to protect not only her interest
but that of the [familys].
From the facts obtaining, it is evident that complainant
had a lawyer-client relationship with the respondent
before the latter [was] retained as counsel by the
Spouses Jalbuena when the latter were sued by
complainants representative.
We cannot disregard the fact that on this situation for
some reason or another there existed some
confidentiality and trust between complainants and
respondent to ensure the successful defense of their
cases.
Respondent for having appeared as counsel for the
Spouses Jalbuena when charged by respondents former
client Jalandoni of PRC and Alhambra Hotel,
represented conflicting interests in violation of the Canon
of Professional Responsibility.
As such therefore, the Undersigned has no alternative
but to respectfully recommend the suspension of the
respondent from the practice of law for a period of six (6)
months from receipt hereof.
RESPECTFULLY SUBMITTED.
Pasig City, June 20, 2002.[18]
The IBP Board of Governors (Board), however, reversed the recommendation
of the investigating commissioner and resolved to dismiss the case on August
3, 2002.[19]Lumot A. Jalandoni filed a motion for reconsideration (MR) on
October 18, 2002 but the Board denied the MR since it no longer had jurisdiction
to consider and resolve a matter already endorsed
to this Court.[20]
Before delving into the core issues of this case, we need to address some
preliminary matters.
Respondent argues that the alleged resolution of PRC and the special power of
attorney given by Lumot A. Jalandoni to Humberto did not contemplate the filing
of an administrative complaint.[21] Citing the Rules of Court, respondent said that:
[s]uch complaints are personal in nature and therefore,
the filing of the same, cannot be delegated by the
alleged aggrieved party to any third person unless
expressly authorized by law.
We must note, however, the following:
SECTION 1. How instituted. Proceedings for
disbarment, suspension or discipline of attorneys may
be taken by the Supreme Court motu propio, or by the
Integrated Bar of the Philippines (IBP) upon the verified
complaint of any person. The complaint shall state
clearly and concisely the facts complained of and shall
be supported by affidavits or persons having personal
knowledge of the facts therein alleged and/or by such
documents a may substantiate said facts.
The IBP Board of Governors may, motu propio or upon
referral by the Supreme Court or by a Chapter Board of
Officers, or at the instance of any person, initiate and
prosecute proper charges against any erring
attorneys.[22] (emphasis ours)
Complaints against members of the Bar are pursued to preserve the
integrity of the legal profession, not for private vendetta. Thus, whoever has such
personal knowledge of facts constituting a cause of action against erring lawyers
may file a verified complaint with the Court or the IBP. [23] Corollary to the public
interest in these proceedings is the following rule:
SEC. 11. Defects. No defect in a complaint, notice,
answer, or in the proceeding or the Investigators
Report shall be considered as substantial unless the
Board of Governors, upon considering the whole
record, finds that such defect has resulted or may
result in a miscarriage of justice, in which event the
Board shall take such remedial action as the
circumstances may warrant, including invalidation of the
entire proceedings.[24] (emphasis ours)
Respondent failed to substantiate his allegation that Lims complaint
was defective in form and substance, and that entertaining it would result in a
miscarriage of justice. For the same reason, we will no longer put in issue the
filing at the onset of a motion to dismiss by respondent instead of an answer or
comment.[25]
The core issues before us now are:
1. whether there existed a conflict of interest in
the cases represented and handled by
respondent, and
2. whether respondent properly withdrew his
services as counsel of record in Civil Case
No. 97-9865.
CONFLICT OF INTEREST
Petitioners alleged that as an offshoot of representing conflicting interests,
breach of attorney-client confidentiality and deliberate withholding of records
were committed by respondent. To effectively unravel the alleged conflict of
interest, we must look into the cases involved.
In Civil Case No. 97-9865, respondent represented Lumot A. Jalandoni and Totti
Anlap Gargoles. This was a case for the recovery of possession of property
involving Hotel Alhambra, a hotel owned by PRC.
In BC I.S. No. 99-2192, Lim v. Vicente Delfin, Spouses Dennis and
Carmen Jalbuena, respondent was counsel for Delfin and the spouses
Jalbuena. In this case, plaintiff Cristina Lim sued the spouses Jalbuena and
Delfin on the basis of two checks issued by PRC for the construction of Hotel
Alhambra.[26] The corporate records allegedly reflected that the contractor, AAQ
Sales and Construction (AAQSC), was already paid in full yet Amy Albert Que
of AAQSC still filed a collection case against PRC for an unpaid balance.[27] In
her complaint-affidavit, Cristina averred:
11. That it was respondent Carmen J. Jalbuena, who
took advantage of [her] signatures in blank in DBP
Check Nos. 0865590 and 0865591, and who filled up the
spaces of the payee, date and amount without the
knowledge and consent of any officer of the corporation
and [herself], after which she caused the delivery of the
same checks to her husband Dennis Jalbuena, who
encashed without [their] knowledge and consent, and
received the proceeds of the same checks (as
evidenced by his signature in receipt of payment on the
dorsal side of the said checks) with the indispensable
participation and cooperation of respondent Vicente B.
Delfin, the Asst. Vice President and Branch Head of
UCPB.[28]
Notably, in his comment, respondent stated:
There was a possibility of conflict of interest because by
this time, or one month before [he] filed [his] Motion to
Withdraw, Mrs. Jalandoni /Penta Resorts Corporation,
Mr. Lim, through his wife, Cristina J. Lim, by another
counsel, Atty. Lorenzo S. Alminaza, filed a criminal
complaint against the spouses Dennis and Carmen J.
Jalbuena on March 26, 1999 under BC-I.S. Case No. 99-
2192.[29]
Similarly, in BC I.S. Nos. 00-1370, 2000-2304, 2000-2343, 00-2125,
00-2230, 00-880, respondent positioned himself against PRCs interests.
And, in Civil Case No. 99-10660, a collection case against PRC,
Atty. Alminaza of PRC was alarmed by the appearance of respondent at the
table in court for AAQSCs counsel.[30]
Canon 15 of the Code of Professional Responsibility (CPR) highlights the need
for candor, fairness and loyalty in all the dealings of lawyers with their clients.
Rule 15.03 of the CPR aptly provides:
Rule 15.03 A lawyer shall not represent conflicting
interests except by written consent of all concerned
given after a full disclosure of the facts.
It is only upon strict compliance with the condition of full disclosure
of facts that a lawyer may appear against his client; otherwise, his representation
of conflicting interests is reprehensible.[31] Conflict of interest may be determined
in this manner:
There is representation of conflicting interests if the
acceptance of the new retainer will require the
attorney to do anything which will injuriously affect
his first client in any matter in which he represents him
and also whether he will be called upon in his new
relation, to use against his first client any knowledge
acquired through their connection.[32] (emphasis ours)
The rule on conflict of interests covers not only cases in which confidential
communications have been confided but also those in which no confidence has
been bestowed or will be used.[33]
Another test of the inconsistency of interests is whether
the acceptance of a new relation will prevent an attorney
from the full discharge of his duty of undivided fidelity
and loyalty to his client or invite suspicion of
unfaithfulness or double-dealing in the performance
thereof, and also whether he will be called upon in his
new relation to use against his first client any knowledge
acquire in the previous employment. The first part of the
rule refers to cases in which the opposing parties are
present clients either in the same action or in a totally
 unrelated case; the second part pertains to those in
which the adverse party against whom the attorney
appears is his former client in a matter which is
related, directly or indirectly, to the present
controversy.[34] (emphasis ours)
The rule prohibits a lawyer from representing new clients whose interests
oppose those of a former client in any manner, whether or not they are parties
in the same action or in totally unrelated cases. The cases here directly or
indirectly involved the parties connection to PRC, even if neither PRC nor Lumot
A. Jalandoni was specifically named as party-litigant in some of the cases
mentioned.
An attorney owes to his client undivided allegiance. After
being retained and receiving the confidences of the client,
he cannot, without the free and intelligent consent of his
client, act both for his client and for one whose interest is
adverse to, or conflicting with that of his client in the same
general matter. The prohibition stands even if the
adverse interest is very slight; neither is it material
that the intention and motive of the attorney may have
been honest.[35] (emphasis ours)
The representation by a lawyer of conflicting interests, in the absence of the
written consent of all parties concerned after a full disclosure of the facts,
constitutes professional misconduct which subjects the lawyer to disciplinary
action.[36]
Even respondents alleged effort to settle the existing controversy among the
family members[37] was improper because the written consent of all concerned
was still required.[38] A lawyer who acts as such in settling a dispute cannot
represent any of the parties to it.[39]
WITHDRAWAL AS COUNSEL IN CIVIL CASE NO. 97-9865
The next bone of contention was the propriety of respondents
withdrawal as counsel for Lumot A. Jalandoni in Civil Case No. 97-9865 to fulfill
an alleged retainership agreement with the spouses Jalbuena in a suit by PRC,
through Cristina Lim, against the Jalbuenas and Delfin (BC I.S. No. 99-2192). In
his December 1, 2000 comment, respondent stated that it was he who was not
notified of the hiring of Atty. Alminaza as the new counsel in that case and that
he withdrew from the case with the knowledge of Lumot A. Jalandoni and with
leave of court.
The rule on termination of attorney-client relations may be summarized as
follows:
The relation of attorney and client may be terminated by
the client, by the lawyer or by the court, or by reason of
circumstances beyond the control of the client or the
lawyer. The termination of the attorney-client
relationship entails certain duties on the part of the client
and his lawyer.[40]
Accordingly, it has been held that the right of an attorney to withdraw
or terminate the relation other than for sufficient cause is considerably
restricted. Canon 22 of the CPR reads:
Canon 22 A lawyer shall withdraw his services only for
good cause and upon notice appropriate in the
circumstances.
An attorney may only retire from a case either by written consent of his client or
by permission of the court after due notice and hearing, in which event the
attorney should see to it that the name of the new lawyer is recorded in the
case.[41] A lawyer who desires to retire from an action without the written consent
of his client must file a petition for withdrawal in court. [42] He must serve a copy
of his petition upon his client and the adverse party at least three days before
the date set for hearing, otherwise the court may treat the application as a mere
scrap of paper.[43] Respondent made no such move. He admitted that he
withdrew as counsel on April 26, 1999, which withdrawal was supposedly
approved by the court on April 28, 1999. The conformity of Mrs. Jalandoni was
only presumed by Atty. Villarosa because of the appearance of Atty. Alminaza
in court, supposedly in his place.
[A client] may discharge his attorney at any time with or
without cause and thereafter employ another lawyer who
may then enter his appearance. Thus, it has been held
that a client is free to change his counsel in a pending
case and thereafter retain another lawyer to represent
him. That manner of changing a lawyer does not need
the consent of the lawyer to be dismissed. Nor does it
require approval of the court.[44]
The appearance of Atty. Alminaza in fact was not even to substitute
for respondent but to act as additional counsel.[45] Mrs. Jalandonis conformity to
having an additional lawyer did not necessarily mean conformity to respondents
desire to withdraw as counsel. Respondents speculations on the professional
relationship of Atty. Alminaza and Mrs. Jalandoni find no support in the records
of this case.
Respondent should not have presumed that his motion to withdraw
as counsel[46] would be granted by the court. Yet, he stopped appearing as Mrs.
Jalandonis counsel beginning April 28, 1999, the first hearing date. No order
from the court was shown to have actually granted his motion for withdrawal.
Only an order dated June 4, 1999 had a semblance of granting his motion:
When this case was called for hearing Atty. Lorenzo
Alminaza appeared for the defendants considering
that Atty. Nicanor Villarosa has already withdrawn
his appearance in this case which the Court
considered it to be approved as it bears the conformity
of the defendants.[47] (emphasis ours)
That Mrs. Jalandoni continued with Atty. Alminazas professional engagement
on her behalf despite respondents withdrawal did not absolve the latter of the
consequences of his unprofessional conduct, specially in view of the conflicting
interests already discussed. Respondent himself stated that his withdrawal from
Civil Case No. 97-9865 was due to the possibility of a conflict of interest.[48]
Be that as it may, the records do not support the claim that respondent
improperly collected P5,000 from petitioner. Undoubtedly, respondent provided
professional services to Lumot A. Jalandoni. Furthermore, there is no evidence
that the documents belonging to Mrs. Jalandoni were deliberately withheld. The
right of an attorney to retain possession of a clients documents, money or other
property which may have lawfully come into his possession in his professional
capacity, until his lawful fees and disbursements have been fully paid, is well-
established.[49]
Finally, we express our utter dismay with Lims apparent use of his
wifes community tax certificate number in his complaint for disbarment against
respondent.[50]This is not, however, the forum to discuss this lapse.
WHEREFORE, in view of the foregoing, respondent Atty. Nicanor V. Villarosa is
hereby found GUILTY of violating Canon 15 and Canon 22 of the Code of
Professional Responsibility and is SUSPENDED from the practice of law for one
(1) year, effective upon receipt of this decision, with a STERN WARNING that a
repetition of the same or similar acts will be dealt with more severely.
Let a copy of this resolution be entered into the records of respondent and
furnished to the Office of the Clerk of Court, the Office of the Bar Confidant, the
Integrated Bar of the Philippines, and all courts in the Philippines, for their
information and guidance.
SO ORDERED.
ROLANDO B. PACANA, JR., Complainant, VS. ATTY. MARICEL
PASCUAL-LOPEZ, Respondent. A.C. No. 8243 Promulgated: July 24,
2009
DECISION
PER CURIAM:
This case stems from an administrative complaint[1] filed by
Rolando Pacana, Jr. against Atty. Maricel Pascual-Lopez charging the latter
with flagrant violation of the provisions of the Code of Professional
Responsibility.[2] Complainant alleges that respondent committed acts
constituting conflict of interest, dishonesty, influence peddling, and failure to
render an accounting of all the money and properties received by her from
complainant.
On January 2, 2002, complainant was the Operations Director
for Multitel Communications Corporation (MCC). MCC is an affiliate
company of Multitel International Holdings Corporation (Multitel). Sometime
in July 2002, MCC changed its name to Precedent Communications
Corporation (Precedent).[3]
According to complainant, in mid-2002, Multitel was besieged by
demand letters from its members and investors because of the failure of its
investment schemes. He alleges that he earned the ire of Multitel investors
after becoming the assignee of majority of the shares of stock of Precedent
and after being appointed as trustee of a fund amounting to Thirty Million
Pesos (P30,000,000.00) deposited at Real Bank.
Distraught, complainant sought the advice of respondent who
also happened to be a member of the Couples for Christ, a religious
organization where complainant and his wife were also active members.
From then on, complainant and respondent constantly communicated, with
the former disclosing all his involvement and interests in Precedent and
Precedents relation with Multitel. Respondent gave legal advice to
complainant and even helped him prepare standard quitclaims for creditors.
In sum, complainant avers that a lawyer-client relationship was established
between him and respondent although no formal document was executed
by them at that time. A Retainer Agreement[4] dated January 15, 2003 was
proposed by respondent. Complainant, however, did not sign the said
agreement because respondent verbally asked for One Hundred Thousand
Pesos (P100,000.00) as acceptance fee and a 15% contingency fee upon
collection of the overpayment made by Multitel to Benefon,[5] a
telecommunications company based in Finland. Complainant found the
proposed fees to be prohibitive and not within his means.[6] Hence, the
retainer agreement remained unsigned.[7]
After a few weeks, complainant was surprised to receive a
demand letter from respondent[8] asking for the return and immediate
settlement of the funds invested by respondents clients in Multitel. When
complainant confronted respondent about the demand letter, the latter
explained that she had to send it so that her clients defrauded investors of
Multitel would know that she was doing something for them and assured
complainant that there was nothing to worry about.[9]
Both parties continued to communicate and exchange
information regarding the persistent demands made by Multitel investors
against complainant. On these occasions, respondent impressed upon
complainant that she can closely work with officials of the Anti-Money
Laundering Council (AMLC), the Department of Justice (DOJ), the National
Bureau of Investigation (NBI), the Bureau of Immigration and Deportations
(BID),[10] and the Securities and Exchange Commission (SEC)[11] to resolve
complainants problems. Respondent also convinced complainant that in
order to be absolved from any liability with respect to the investment scam,
he must be able to show to the DOJ that he was willing to divest any and all
of his interests in Precedent including the funds assigned to him by
Multitel.[12]
Respondent also asked money from complainant allegedly for
safekeeping to be used only for his case whenever necessary. Complainant
agreed and gave her an initial amount of P900,000.00 which was received
by respondent herself.[13] Sometime thereafter, complainant again gave
respondent P1,000,000.00.[14] Said amounts were all part of Precedents
collections and sales proceeds which complainant held as assignee of the
companys properties.[15]
When complainant went to the United States (US), he received
several messages from respondent sent through electronic mail (e-mail)
and short messaging system (SMS, or text messages) warning him not to
return to the Philippines because Rosario Baladjay, president of Multitel,
was arrested and that complainant may later on be implicated in Multitels
failed investment system. Respondent even said that ten (10) arrest
warrants and a hold departure order had been issued against him.
Complainant, thereafter, received several e-mail messages from
respondent updating him of the status of the case against Multitel and
promised that she will settle the matter discreetly with government officials
she can closely work with in order to clear complainants name. [16] In two
separate e-mail messages,[17] respondent again asked money from
complainant, P200,000 of which was handed by complainants wife while
respondent was confined in Saint Lukes Hospital after giving birth, [18] and
another P700,000 allegedly to be given to the NBI.[19]
Through respondents persistent promises to settle all
complainants legal problems, respondent was able to convince complainant
who was still in the US to execute a deed of assignment in favor of
respondent allowing the latter to retrieve 178 boxes containing cellular
phones and accessories stored in complainants house and inside a
warehouse.[20] He also signed a blank deed of sale authorizing respondent
to sell his 2002 Isuzu Trooper.[21]
Sometime in April 2003, wary that respondent may not be able
to handle his legal problems, complainant was advised by his family to hire
another lawyer. When respondent knew about this, she wrote to
complainant via e-mail, as follows:
Dear Butchie,
Hi! Ok ka lang? Hope you are fine. Sorry if I shocked
you but I had to do it as your friend and lawyer. The
charges are all non-bailable but all the same as the
SEC report I told you before. The findings are the
same, i.e. your company was the front for the fraud of
Multitel and that funds were provided you.
I anticipated this, that is why I really pushed for a
quitclaim. Rolly is willing to return the Crosswind,
laptap (sic) and [P]alm [P]ilot. Manny Cancio really
helped. Anthony na lang. Then, I will need the
accounting of all the funds you received from the sale
of the phones, every employees and directors[]
quitclaim (including yours), the funds transmitted to
the clients through me, the funds you utilized, and
whatelse (sic) is still unremitted, every centavo must
be accounted for as DOJ and NBI can have the
account opened.
I will also need the P30 M proof of deposit with Real
[B]ank and the trust given [to] you. So we can inform
them [that] it was not touched by you.
I have been informed by Efie that your family is
looking at hiring Coco Pimentel. I know him very well
as his sister Gwen is my best friend. I have no
problem if you hire him but I will be hands off. I
work differently kasi. In this cases (sic), you cannot
be highprofile (sic) because it is the clients who will
be sacrificed at the expense of the fame of the
lawyer. I have to work quietly and discreetly. No
funfare. Just like what I did for your guys in the SEC.
I have to work with people I am comfortable
with. Efren Santos will sign as your lawyer
although I will do all the work. He can help with all
his connections. Vals friend in the NBI is the one
is (sic) charge of organized crime who is the entity
(sic) who has your warrant. My law partner was the
state prosecutor for financial fraud. Basically we have
it covered in all aspects and all departments. I am just
trying to liquidate the phones I have allotted for you s
ana (sic) for your trooper kasi whether we like it or
 not, we have to give this agencies (sic) to make our
work easier according to Val. The funds with Mickey
are already accounted in the quit claims (sic) as
attorneys (sic) fees. I hope he will be able to send it
so we have funds to work with.
As for your kids, legally they can stay here but
recently, it is the children who (sic) the irate clients
and government officials harass and kidnap to make
the individuals they want to come out from
hiding (sic). I do not want that to happen. Things will
be really easier on my side.
Please do not worry. Give me 3 months to make
it all disappear. But if you hire Coco, I will give
him the free hand to work with your case. Please
trust me. I have never let you down, have I? I told you
this will happen but we are ready and prepared. The
clients who received the phones will stand by you and
make you the hero in this scandal. I will stand by
you always. This is my expertise. TRUST me! That
is all. You have an angel on your side. Always pray
though to the best legal mind up there. You will be ok!
Candy[22]
On July 4, 2003, contrary to respondents advice, complainant
returned to the country. On the eve of his departure from the United States,
respondent called up complainant and conveniently informed him that he
has been cleared by the NBI and the BID.[23]
About a month thereafter, respondent personally met with
complainant and his wife and told them that she has already
accumulated P12,500,000.00 as attorneys fees and was willing to
give P2,000,000.00 to complainant in appreciation for his help. Respondent
allegedly told complainant that without his help, she would not have earned
such amount. Overwhelmed and relieved, complainant accepted
respondents offer but respondent, later on, changed her mind and told
complainant that she would instead invest the P2,000,000.00 on his behalf
in a business venture. Complainant declined and explained to respondent
that he and his family needed the money instead to cover their daily
expenses as he was no longer employed. Respondent allegedly agreed, but
she failed to fulfill her promise.[24]
Respondent even publicly announced in their religious
organization that she was able to help settle the ten (10) warrants of arrest
and hold departure order issued against complainant and narrated how she
was able to defend complainant in the said cases.[25]
By April 2004, however, complainant noticed that respondent
was evading him. Respondent would either refuse to return complainants
call or would abruptly terminate their telephone conversation, citing several
reasons. This went on for several months.[26] In one instance, when
complainant asked respondent for an update on the collection of Benefons
obligation to Precedent which respondent had previously taken charge of,
respondent arrogantly answered that she was very busy and that she would
read Benefons letter only when she found time to do so.
On November 9, 2004, fed up and dismayed with respondents
arrogance and evasiveness, complainant wrote respondent a letter formally
asking for a full accounting of all the money, documents and properties
given to the latter.[27] Respondent rendered an accounting through a letter
dated December 20, 2004.[28] When complainant found respondents
explanation to be inadequate, he wrote a latter expressing his confusion
about the accounting.[29] Complainant repeated his request for an audited
financial report of all the properties turned over to her; otherwise, he will be
constrained to file the appropriate case against respondent.[30] Respondent
replied,[31] explaining that all the properties and cash turned over to her by
complainant had been returned to her clients who had money claims against
Multitel. In exchange for this, she said that she was able to secure quitclaim
documents clearing complainant from any liability.[32] Still unsatisfied,
complainant decided to file an affidavit-complaint[33] against respondent
before the Commission on Bar Discipline of the Integrated Bar of the
Philippines (IBP) seeking the disbarment of respondent.
In her Answer-Affidavit,[34] respondent vehemently denied being
the lawyer for Precedent. She maintained that no formal engagement was
executed between her and complainant. She claimed that she merely
helped complainant by providing him with legal advice and assistance
because she personally knew him, since they both belonged to the same
religious organization.[35]
Respondent insisted that she represented the group of investors
of Multitel and that she merely mediated in the settlement of the claims her
clients had against the complainant. She also averred that the results of the
settlement between both parties were fully documented and accounted
for.[36] Respondent believes that her act in helping complainant resolve his
legal problem did not violate any ethical standard and was, in fact, in accord
with Rule 2.02 of the Code of Professional Responsibility.[37]
To bolster her claim that the complaint was without basis,
respondent noted that a complaint for estafa was also filed against her by
complainant before the Office of the City Prosecutor in Quezon City citing
the same grounds. The complaint was, however, dismissed by Assistant
City Prosecutor Josephus Joannes H. Asis for insufficiency of
evidence.[38] Respondent argued that on this basis alone, the administrative
case must also be dismissed.
In her Position Paper,[39] respondent also questioned the
admissibility of the electronic evidence submitted by complainant to the
IBPs Commission on Bar Discipline. Respondent maintained that the e-mail
and the text messages allegedly sent by respondent to complainant were of
doubtful authenticity and should be excluded as evidence for failure to
conform to the Rules on Electronic Evidence (A.M. No. 01-7-01-SC).
After due hearing, IBP Investigating Commissioner Patrick M.
Velez issued a Report and Recommendation[40] finding that a lawyer-client
relationship was established between respondent and complainant despite
the absence of a written contract. The Investigating Commissioner also
declared that respondent violated her duty to be candid, fair and loyal to her
client when she allowed herself to represent conflicting interests and failed
to render a full accounting of all the cash and properties entrusted to her.
Based on these grounds, the Investigating Commissioner recommended
her disbarment.
Respondent moved for reconsideration,[41] but the IBP Board of
Governors issued a Recommendation[42] denying the motion and adopting
the findings of the Investigating Commissioner.
The case now comes before this Court for final action.
We affirm the findings of the IBP.
Rule 15.03, Canon 15 of the Code of Professional responsibility
provides:
Rule 15.03 A lawyer shall not represent conflicting
interests except by written consent of all concerned
given after full disclosure of the facts.
This prohibition is founded on principles of public policy, good
taste[43] and, more importantly, upon necessity. In the course of a lawyer-
client relationship, the lawyer learns all the facts connected with the clients
case, including its weak and strong points. Such knowledge must be
considered sacred and guarded with care. No opportunity must be given to
him to take advantage of his client; for if the confidence is abused, the
profession will suffer by the loss thereof.[44] It behooves lawyers not only to
keep inviolate the clients confidence, but also to avoid the appearance of
treachery and double ─ dealing for only then can litigants be encouraged
to entrust their secrets to their lawyers, which is paramount in the
administration of justice.[45] It is for these reasons that we have described
the attorney-client relationship as one of trust and confidence of the highest
degree.[46]
Respondent must have known that her act of constantly and
actively communicating with complainant, who, at that time, was
beleaguered with demands from investors of Multitel, eventually led to the
establishment of a lawyer-client relationship. Respondent cannot shield
herself from the inevitable consequences of her actions by simply saying
that the assistance she rendered to complainant was only in the form of
friendly accommodations,[47] precisely because at the time she was giving
assistance to complainant, she was already privy to the cause of the
opposing parties who had been referred to her by the SEC.[48]
Respondent also tries to disprove the existence of such
relationship by arguing that no written contract for the engagement of her
services was ever forged between her and complainant. [49] This argument
all the more reveals respondents patent ignorance of fundamental laws on
contracts and of basic ethical standards expected from an advocate of
justice. The IBP was correct when it said:
The absence of a written contract will not
preclude the finding that there was a professional
relationship between the parties. Documentary
formalism is not an essential element in the
employment of an attorney; the contract may be
express or implied. To establish the relation, it is
sufficient that the advice and assistance of an
attorney is sought and received in any matter
pertinent to his profession.[50] (Emphasis supplied.)
Given the situation, the most decent and ethical thing which
respondent should have done was either to advise complainant to engage
the services of another lawyer since she was already representing the
opposing parties, or to desist from acting as representative of Multitel
investors and stand as counsel for complainant. She cannot be permitted to
do both because that would amount to double-dealing and violate our ethical
rules on conflict of interest.
In Hornilla v. Atty. Salunat,[51] we explained the concept of
conflict of interest, thus:
There is conflict of interest when a lawyer represents
inconsistent interests of two or more opposing
parties. The test is whether or not in behalf of one
client, it is the lawyers duty to fight for an issue or
claim, but it is his duty to oppose it for the other
client. In brief, if he argues for one client, this
argument will be opposed by him when he argues for
the other client. This rule covers not only cases in
which confidential communications have been
confided, but also those in which no confidence has
been bestowed or will be used. Also, there is
conflict of interests if the acceptance of the new
retainer will require the attorney to perform an act
which will injuriously affect his first client in any matter
in which he represents him and also whether he will
be called upon in his new relation to use against his
first client any knowledge acquired through their
connection. Another test of the inconsistency of
interests is whether the acceptance of a new relation
will prevent an attorney from the full discharge of his
duty of undivided fidelity and loyalty to his client or
invite suspicion of unfaithfulness or double dealing in
the performance thereof.[52]
Indubitably, respondent took advantage of complainants hapless
situation, initially, by giving him legal advice and, later on, by soliciting
money and properties from him. Thereafter, respondent impressed upon
complainant that she had acted with utmost sincerity in helping him divest
all the properties entrusted to him in order to absolve him from any liability.
But simultaneously, she was also doing the same thing to impress upon her
clients, the party claimants against Multitel, that she was doing everything
to reclaim the money they invested with Multitel. Respondent herself
admitted to complainant that without the latters help, she would not have
been able to earn as much and that, as a token of her appreciation, she was
willing to share some of her earnings with complainant.[53] Clearly,
respondents act is shocking, as it not only violated Rule 9.02, Canon 9 of
the Code of Professional Responsibility,[54] but also toyed with decency and
good taste.
Respondent even had the temerity to boast that no Multitel client
had ever complained of respondents unethical behavior.[55] This remark
indubitably displays respondents gross ignorance of disciplinary procedure
in the Bar. As a member of the Bar, she is expected to know that
proceedings for disciplinary actions against any lawyer may be initiated and
prosecuted by the IBP Board of Governors, motu proprio or upon referral by
this Court or by the Board of Officers of an IBP Chapter[56] even if no private
individual files any administrative complaint.
Upon review, we find no cogent reason to disturb the findings
and recommendations of the IBP Investigating Commissioner, as adopted
by the IBP Board of Governors, on the admissibility of the electronic
evidence submitted by complainant. We, accordingly, adopt the same in
toto.
Finally, respondent argues that the recommendation of the IBP
Board of Governors to disbar her on the grounds of deceit, malpractice and
other gross misconduct, aside from violation of the Lawyers Oath, has been
rendered moot and academic by voluntary termination of her IBP
membership, allegedly after she had been placed under the Department of
Justices Witness Protection Program.[57] Convenient as it may be for
respondent to sever her membership in the integrated bar, this Court cannot
allow her to do so without resolving first this administrative case against her.
The resolution of the administrative case filed against
respondent is necessary in order to determine the degree of her culpability
and liability to complainant. The case may not be dismissed or rendered
moot and academic by respondents act of voluntarily terminating her
membership in the Bar regardless of the reason for doing so. This is
because membership in the Bar is a privilege burdened with
conditions.[58] The conduct of a lawyer may make him or her civilly, if not
criminally, liable to his client or to third parties, and such liability may be
conveniently avoided if this Court were to allow voluntary termination of
membership. Hence, to terminate ones membership in the Bar voluntarily,
it is imperative that the lawyer first prove that the voluntary withdrawal of
membership is not a ploy to further prejudice the public or to evade
liability. No such proof exists in the present case.
WHEREFORE, respondent Attorney Maricel Pascual-Lopez is
hereby DISBARRED for representing conflicting interests and for engaging
in unlawful, dishonest and deceitful conduct in violation of her Lawyers Oath
and the Code of Professional Responsibility.
Let a copy of this Decision be entered in the respondents record
as a member of the Bar, and notice of the same be served on the Integrated
Bar of the Philippines, and on the Office of the Court Administrator for
circulation to all courts in the country.
SO ORDERED.
LOLITA ARTEZUELA, complainant, vs. ATTY. RICARTE
B. MADERAZO, respondent.
Daryll Amante for complainant.
Ricarte B. Maderazo for respondent.
SYNOPSIS
Complainant engaged the services of the respondent in filing a damage
suit against Echavia and his co-defendants, docketed as Civil Case No.
13666. However, the case was dismissed allegedly upon the instance of
the complainant and her husband. Because of the dismissal of the said
case, complainant filed a civil case for damages against respondent which
was again dismissed. Consequently, Artezuela filed before the Supreme
Court a verified complaint for disbarment against respondent alleging that
the latter neglected his duties as a lawyer and failed to represent her
interests with zeal and enthusiasm.
The Investigating Committee found respondent guilty of representing
conflicting interest for preparing Echavia's Answer to the Amended
Complaint while acting as complainant's counsel. The Board of Governors
of the IBP upheld the findings of the committee with modification only as to
the penalty.
The Supreme Court ruled that to be guilty of representing conflicting
interests, a counsel-of-record of one party need not also be counsel-of-
record of the adverse party. He does not have to publicly hold himself as
the counsel of the adverse party, nor make his efforts to advance the
adverse party's conflicting interests of record, although these
circumstances are the most obvious and satisfactory proof of the charge. It
is enough that the counsel of one party had a hand in the preparation of
the pleading of the other party, claiming adverse and conflicting interests
with that of his original client. To require that he also be counsel-of-record
of the adverse party would punish only the most obvious form of deceit
and reward, with impunity, the highest form of disloyalty.
The Supreme Court affirmed the resolution of the IBP. Respondent lawyer
was suspended from the practice of law for six (6) months.
SYLLABUS
1. POLITICAL LAW; ADMINISTRATIVE LAW; ADMINISTRATIVE
PROCEEDINGS; DUE PROCESS; FULFILLED WHEN PARTIES WERE
GIVEN REASONABLE OPPORTUNITY TO BE HEARD AND TO SUBMIT
EVIDENCE IN SUPPORT OF THEIR ARGUMENTS. — In administrative
cases, the requirement of notice and hearing does not connote full
adversarial proceedings, as "actual adversarial proceedings become
necessary only for clarification or when there is a need to propound
searching questions to witnesses who give vague testimonies." Due
process is fulfilled when the parties were given reasonable opportunity to
be heard and to submit evidence in support of their arguments. cDCEIA
2. LEGAL AND JUDICIAL ETHICS; ATTORNEYS; CONFLICT OF
INTEREST; PRESENT WHEN THE COUNSEL OF ONE PARTY HAD A
HAND IN THE PREPARATION OF THE PLEADING OF THE OTHER
PARTY. — To be guilty of representing conflicting interests, a counsel-of-
record of one party need not also be counsel-of-record of the adverse
party. He does not have to publicly hold himself as the counsel of the
adverse party, nor make his efforts to advance the adverse party's
conflicting interests of record — although these circumstances are the
most obvious and satisfactory proof of the charge. It is enough that the
counsel of one party had a hand in the preparation of the pleading of the
other party, claiming adverse and conflicting. interests with that of his
original client. To require that he also be counsel-of-record of the adverse
party would punish only the most obvious form of deceit and reward, with
impunity, the highest form of disloyalty.
3. ID.; ID.; PROHIBITED FROM REPRESENTING CONFLICTING
INTERESTS OR DISCHARGING INCONSISTENT DUTIES. — An
attorney owes his client undivided allegiance. Because of the highly
fiduciary nature of the attorney-client relationship, sound public policy
dictates that a lawyer be prohibited from representing conflicting interests
or discharging inconsistent duties. He may not, without being guilty of
professional misconduct, act as counsel for a person whose interest
conflicts with that of his present or former client. Indeed, good faith and
honest intention on the part of the erring lawyer does not make this rule
inoperative. The lawyer is an officer of the court and his actions are
governed by the uncompromising rules of professional ethics.
4. REMEDIAL LAW; EVIDENCE; PREPONDERANCE OF EVIDENCE;
REQUIRED TO ESTABLISH LIABILITY IN DISCIPLINARY
PROCEEDINGS AGAINST MEMBERS OF THE BAR. — While the
Resolution of the IBP is purely recommendatory, we find no reason to
reverse the same. In disciplinary proceedings against members of the bar,
only clear preponderance of evidence is required to establish liability. As
long as the evidence presented by complainant or that taken judicial notice
of by the Court is more convincing and worthy of belief than that which is
offered in opposition thereto, the imposition of disciplinary sanction is
justified.
DECISION
PUNO, J p:
For his failure to meet the exacting standards of professional ethics, the
Board of Governors of the Integrated Bar of the Philippines (IBP) in its
Resolution of May 2, 2000 recommended the suspension from the practice
of law of respondent Atty. Ricarte B. Maderazo for the period of six (6)
months, with a stern warning that repetition of the same act will be dealt
with more severely. Respondent allegedly represented conflicting interests
in violation of Canon 6 of the Code of Professional Ethics, and Canon 15
and Rule 15.03 of the Code of Professional Responsibility. 1
By way of a Motion for Reconsideration, 2 respondent now comes before
this Court to challenge the basis of the IBP's resolution, and prays for its
reversal.
The factual antecedents of the case are as follows: On or about 3:00 in the
early morning of December 24, 1992, Allan Echavia had a vehicular
accident at Caduman St., corner H. Abellana St., Mandaue City. At the
time of the accident, Echavia was driving a Ford Telstar car owned by a
Japanese national named Hirometsi Kiyami, but was registered in the
name of his brother-in-law, Jun Anthony Villapez. The car rammed into a
small carinderia owned by complainant Lolita Artezuela. 3
The destruction of the complainant's carinderia caused the cessation of
the operation of her small business, resulting to her financial dislocation.
She incurred debts from her relatives and due to financial constraints,
stopped sending her two children to college. 4
Complainant engaged the services of the respondent in filing a damage
suit against Echavia, Villapez and one Bernardo Sia. 5 Docketed as Civil
Case No. 13666, the case was assigned to Branch 14 of the Regional
Trial Court of Cebu. An Amended Complaint was thereafter filed,
impleading Echavia, Kiyami and Villapez, and dropping Sia as a party-
defendant. 6 For his services, complainant paid the respondent the
amount of Ten Thousand Pesos (P10,000.00) as attorney's fees and Two
Thousand Pesos (P2,000.00) as filing fee. 7 However, the case was
dismissed on March 22, 1994, allegedly upon the instance of the
complainant and her husband. 8
Because of the dismissal of Civil Case No. 13666, complainant filed a civil
case for damages against the respondent. It was docketed as CEB-18552
and assigned to Branch 57, Regional Trial Court of Cebu City. The case
was dismissed on June 12, 2001. 9
On November 24, 1994, Artezuela filed before this Court a verified
complaint for disbarment against the respondent. She alleged that
respondent grossly neglected his duties as a lawyer and failed to
represent her interests with zeal and enthusiasm. According to her, when
Civil Case No. 13666 was scheduled for pre-trial conference on August
20, 1993, respondent asked for its postponement although all the parties
were present. Notwithstanding complainant's persistent and repeated
follow-up, respondent did not do anything to keep the case moving. He
withdrew as counsel without obtaining complainant's consent.10
Complainant also claimed that respondent engaged in activities inimical to
her interests. While acting as her counsel, respondent prepared Echavia's
Answer to the Amended Complaint. The said document was even printed
in respondent's office. Complainant further averred that it was respondent
who sought the dismissal of the case, misleading the trial court into
thinking that the dismissal was with her consent. 11
Respondent denied the complainant's allegations and averred that he
conscientiously did his part as the complainant's lawyer in Civil Case No.
13666. He withdrew as counsel because the complainant was
uncooperative and refused to confer with him. He also gave several
notices to the complainant and made known his intention before he filed
his Manifestation to withdraw as counsel. Because of the severed
relationship, the lower court, after holding a conference, decided to grant
respondent's manifestation and advised the complainant to secure the
services of a new lawyer. Complainant, however, refused and instead,
sought the dismissal of the case. 12
Respondent alleged that he sought the postponement of the Pre-Trial
Conference scheduled on August 20, 1993 so that he could file the
Amended Complaint. He admitted that Echavia's Answer to the Amended
Complaint was printed in his office but denied having prepared the
document and having acted as counsel of Echavia. He claimed that
complainant requested him to prepare Echavia's Answer but he declined.
Echavia, however, went back to his office and asked respondent's
secretary to print the document. Respondent intimated that the
complainant and Echavia have fabricated the accusations against him to
compel him to pay the amount of P500,000.00. 13
This Court referred the complaint to the Integrated Bar of the Philippines
(IBP). The IBP-Visayas Regional Committee on Bar Discipline formed an
Investigating Committee to hear the disbarment complaint.
On October 6, 1999, Commissioner Gabriel T. Ingles issued a Report
finding the respondent guilty of representing conflicting interests, in
violation of Canon 15 and Rule 15.03 of the Code of Professional
Responsibility, as well as, of Canon 6 of the Code of Professional Ethics.
He recommended that the respondent be suspended from the practice of
law for a period of one (1) year. 14 Commissioner Ingles did not rule on
the other issues.
As aforesaid, the Board of Governors of the Integrated Bar of the
Philippines upheld the findings of the Committee with modification only as
to the penalty.
Seeking reconsideration of the IBP's resolution, respondent contend that
the Investigating Committee did not conduct trial; hence, he was not able
to confront and examine the witnesses against him. He argues that the
Investigating Committee's finding that he represented Echavia is contrary
to court records and the complainant's own testimony in CEB-18552. He
also casts doubt on the credibility of the Investigating Committee to render
just and fair recommendations considering that the Investigating
Commissioner and the respondent are counsel-adversaries in another
case, Civil Case No. R-33277. Finally, he questions the imposition of a six-
month suspension, which he claims to be harsh considering that his
private practice is his only source of income. 15
After carefully examining the records, as well as the applicable laws and
jurisprudence on the matter, this Court is inclined to uphold the IBP's
resolution.
In administrative cases, the requirement of notice and hearing does not
connote full adversarial proceedings, as "actual adversarial proceedings
become necessary only for clarification or when there is a need to
propound searching questions to witnesses who give vague
testimonies." 16 Due process is fulfilled when the parties were given
reasonable opportunity to be heard and to submit evidence in support of
their arguments. 17
In the case at bar, records show that respondent repeatedly sought the
postponement of the hearings, prompting the Investigating Commissioner
to receive complainant's evidence ex parte and to set the case for
resolution after the parties have submitted their respective memorandum.
Hence:
"The records show that this is already the third
postponement filed by respondent namely
December 12, 1996 (sic), January 3, 1996 and April
1, 1996.
The Commission for the last time, will cancel today's
hearing and can no longer tolerate any further
postponement. Notify respondent by telegram for
the hearing for (sic) April 22, 1996 at 2:00 P.M. Said
hearing is intransferable in character.
In the meantime, complainant affirmed her
complaint and likewise her witness, Allan Echavia,
also affirmed the contents of his affidavit and further
stated that he had executed the same and
understood the contents thereof." 18
It is by his own negligence that the respondent was deemed to have
waived his right to cross-examine the complainant and her witness. He
cannot belatedly ask this Court to grant new trial after he has squandered
his opportunity to exercise his right.
Respondent's contention that the finding of the Investigating Committee
was contrary to the records and the complainant's own admission in CEB-
18552 is without merit. It is true that Atty. Aviola was Echavia's counsel-of-
record in Civil Case No. 13666 as evidenced by the certification from the
clerk of court, 19 and as admitted by the complainant in CEB-18552, viz:
"ATTY. MADERAZO: (To witness - ON CROSS)
Q: Madam witness, you mentioned that the defendant in this
case was the counsel of Allan Echavia as early as
August 20, 1993, wherein you learned for the first
time of this fact when you say he is counsel of Allan
Echavia. (sic) You mean he is the counsel of record
of Allan Echavia in the Civil Case before Judge
Dacudao? Is that what you mean?
A: What I learned was that Atty. Alviola was the counsel of
Allan Echavia in the case before Judge Dacudao but
I heard Atty. Maderazo telling Allan Echavia not to
admit that Atty. Maderazo is appearing for me
because he will be the one to coordinate with Allan's
case.
Q: So it is clear that the defendant in this case is not the
counsel of record of Allan Echavia. It was Atty.
Alviola stated by you now?
A: Atty. Maderazo was not Allan Echavia's counsel but it was
Atty. Alviola who was the counsel of record of Allan
Echavia." 20
Nevertheless, the issue in this case is not whether the respondent also
acted as the counsel-of-record of Echavia. Rather, it is whether or not he
had a direct hand in the preparation of Echavia's Answer to the Amended
Complaint.
To be guilty of representing conflicting interests, a counsel-of-record of
one party need not also be counsel-of-record of the adverse party. He
does not have to publicly hold himself as the counsel of the adverse party,
nor make his efforts to advance the adverse party's conflicting interests of
record — although these circumstances are the most obvious and
satisfactory proof of the charge. It is enough that the counsel of one party
had a hand in the preparation of the pleading of the other party, claiming
adverse and conflicting interests with that of his original client. To require
that he also be counsel-of-record of the adverse party would punish only
the most obvious form of deceit and reward, with impunity, the highest
form of disloyalty.
Canon 6 of the Code of Professional Ethics states:
"It is the duty of a lawyer at the time of the
retainer to disclose to the client the
circumstances of his relations to the parties and
any interest in or in connection with the
controversy, which might influence the client in
the selection of the counsel.
"It is unprofessional to represent conflicting
interests, except by express consent of all
concerned given after a full disclosure of the
facts. Within the meaning of this Canon, a lawyer
represents conflicting interests when in behalf of
one of the clients, it is his duty to contend for that
which duty to another client requires him to
oppose." (Italics supplied)
An attorney owes his client undivided allegiance. Because of the highly
fiduciary nature of the attorney-client relationship, sound public policy
dictates that a lawyer be prohibited from representing conflicting interests
or discharging inconsistent duties. He may not, without being guilty of
professional misconduct, act as counsel for a person whose interest
conflicts with that of his present or former client. Indeed, good faith and
honest intention on the part of the erring lawyer does not make this rule
inoperative. 21 The lawyer is an officer of the court and his actions are
governed by the uncompromising rules of professional ethics. Thus:
"The relations of attorney and client is founded on
principles of public policy, on good taste. The
question is not necessarily one of the rights of the
parties, but as to whether the attorney has
adhered to proper professional standard. With
these thoughts in mind, it behooves attorneys,
like Ceasar's wife, not only to keep inviolate the
client's confidence, but also to avoid the
appearance of treachery and double-dealing.
Only thus can litigants be encouraged to entrust
their secrets to their attorneys which is of
paramount importance in the administration of
justice." 22
The professional obligation of the lawyer to give his undivided attention
and zeal for his client's cause is likewise demanded in the Code of
Professional Responsibility. Inherently disadvantageous to his client's
cause, representation by the lawyer of conflicting interests requires
disclosure of all facts and consent of all the parties involved. Thus:
"CANON 15 — All lawyers shall observe candor,
fairness and loyalty in all his dealings and
transactions with his clients.
xxx xxx xxx
Rule 15.03 — A lawyer shall not represent
conflicting interests except by written consent of all
concerned given after a full disclosure of the facts."
While the Resolution of the IBP is purely recommendatory, we find no
reason to reverse the same. In disciplinary proceedings against members
of the bar, only clear preponderance of evidence is required to establish
liability. As long as the evidence presented by complainant or that taken
judicial notice of by the Court is more convincing and worthy of belief than
that which is offered in opposition thereto, the imposition of disciplinary
sanction is justified. 23
A perusal of Echavia's Answer to the Amended Complaint shows that it
indeed conflicts with the complainant's claims. It reads:
The Investigating Committee found respondent's defense weak.
Respondent did not bother to present his secretary as witness, nor obtain
her affidavit to prove his allegations. Instead, he offered a convenient
excuse — that he cannot anymore locate his secretary.
Respondent argued that it was the complainant who asked him to prepare
Echavia's Answer to the Amended Complaint, after reaching an
agreement whereby Echavia would testify in favor of the complainant.
After he declined the request, he claimed that it was the complainant who
prepared the document and asked his secretary to print the same. But as
shown, Echavia's Answer to the Amended Complaint was in no way
favorable to the complainant.
With the dismissal of Civil Case No. 13666, Echavia is practically off the
hook. We cannot find any reason why Echavia would commit perjury and
entangle himself, once again, with the law. He does not stand to profit at
all by accusing the respondent falsely.
Furthermore, considering complainant's stature and lack of legal
education, we can not see how she could have prepared Echavia's
Answer to the Amended Complaint and device a legal maneuver as
complicated as the present case.
Respondent's attack on the credibility of Investigating Commissioner
Ingles to render an impartial decision, having been an adversary in Civil
Case No. R-33277, does not convince us to grant new trial. This is the first
time that respondent questions the membership of Commissioner Ingles in
the Investigating Committee. If respondent really believed in good faith
that Commissioner Ingles would be biased and prejudiced, he should have
asked for the latter's inhibition at the first instance. Moreover, we could not
find any hint of irregularity, bias or prejudice in the conduct of the
investigation that would lead us to set it aside.
Finally, we remind the respondent that the practice of law is not a property
right but a mere privilege, and as such, must bow to the inherent
regulatory power of the Court to exact compliance with the lawyer's public
responsibilities. 26 The suspension of the respondent's privilege to
practice law may result to financial woes. But as the guardian of the legal
profession, we are constrained to balance this concern with the injury he
caused to the very same profession he vowed to uphold with honesty and
fairness. IDEHCa
IN VIEW WHEREOF, the Resolution of the IBP finding the respondent
guilty of violating Canon 6 of the Code of Professional Ethics, and Canon
15 and Rule 15.03 of the Code of Professional Responsibility is affirmed.
Respondent is suspended from the practice of law for six (6) months with
a stern warning that a similar act in the future shall be dealt with more
severely.

"1. The allegations (sic) in Paragraph One (1) of SO ORDERED.

the Complaint is admitted in so far as it pertains
to the personal circumstance and residence of ||| (Artezuela v. Maderazo, A.C. No. 4354, [April 22, 2002], 431 PHIL 135-
the answering defendant. The rest of the 147)
allegations in Paragraph One (1), and all the
allegations in Paragraph Two (2) , THREE (3),
FOUR (4), FIVE (5), SIX (6), ELEVEN (11),
TWELVE (12), and FOURTEEN (14), of the
Complaint are DENIED for lack of knowledge
sufficient to form a belief as to the truth of such
allegations." 24
By way of prayer, Echavia states:
"WHEREFORE, it is respectfully prayed that after
hearing, judgment be rendered dismissing
plaintiff's complaint." 25

Anent the authorship by the respondent of the document quoted above,

the Investigating Committee found the testimonies of the complainant and
Echavia credible as opposed to respondent's bare denial. As pointed out
by Echavia, he was approached by Atty. Maderazo, introduced himself as
his lawyer and after some sessions in the latter's office, asked him to
return and sign a document which he later identified as the Answer to the
Amended Complaint.
ERLINDA ABRAGAN, MILA GINA JAVIER, REYNALDO MERCADO, PATERNO
TORRES, BENIGNA ANTIBO, ELEISER SALVADOR, EDNA SAPON,
JULIANA CUENCA, ESPERANZA BUENAFE, VICENTE BARNAGA,
MARTHA SAPON, JOSEFINA OPEA, PUREZA WABE, RONULFO
LOPEZ, DOMINADOR HERNANDEZ, FELIPA EMBATE, ROQUE
CATIIL, JERRY SAPON, CONCEPCION MATANOG, and PABLO
SALOMON, complainants, vs. Atty. MAXIMO G.
RODRIGUEZ, respondent.
DECISION
PANGANIBAN, J.:
Lawyers violate their oath of office when they represent conflicting
interests. They taint not only their own professional practice, but the entire legal
profession itself.
The Case and the Facts
Before us is a verified Petition[1] praying for the disbarment of Atty. Maximo
G. Rodriguez because of alleged illegal and unethical acts. The Petition relevantly
reads as follows:
2. That sometime in 1986, the petitioners hired the services of the respondent and
the latter, represented the former in the case entitled PABLO SALOMON et al vs.
RICARDO DACALUZ et al., before the Municipal Trial Court in Cities, Cagayan de
Oro City, Branch 3 docketed as Civil Case No. 11204, for Forcible Entry with
Petition for a Writ of Preliminary Injunction and Damages, [and] a Certified True and
Correct Copy of the COMPLAINT by Clerk of Court III Gerardo B. Ucat of the said
Court, is herewith attached to the original of this PETITION, while photocopies of
the same are also attached to the duplicate copies of this same Petition and marked
as Annex A hereof;
3. That after the Case No. 11204 was finally won, and a Writ of Execution was
issued by the Honorable Municipal Trial Court in Cities of Cagayan de Oro City,
Branch 3, the same respondent lawyer represented the petitioners herein;
4. That when respondent counsel disturbed the association (Cagayan de Oro
Landless Residents Association, Inc.), to which all the complainants belong, by
surreptitiously selling some rights to other persons without the consent of the
petitioners herein, they decided to sever their client-lawyer relationship;
5. That in fact, the National Bureau of Investigation of Cagayan de Oro City, is
presently undertaking an investigation on the illegal activities of Atty. Maximo
Rodriguez pertaining to his express involvement in the illegal and unauthorized
apportionment, assignment and sale of parcels of land subject to the Case No.
11204, where he represented the poor landless claimants of Cagayan de Oro City,
which include your petitioners in this case;
6. That petitioners herein later filed an indirect contempt charge under Civil Case
No. 11204 against Sheriff Fernando Loncion et al., on August 2, 1991 engaging the
services of Atty. LORETO O. SALVA, SR., an alleged former student of law of Atty.
Maximo Rodriguez, [and a] certified true and correct copy of the complaint thereat
consisting of four (4) pages is herewith attached and photocopies of which are also
attached to the duplicates hereof, and correspondingly marked as their Annex B;
7. That respondent lawyer, Atty. Maximo Rodriguez, (in the Indirect Contempt Case
under the same Civil Case No. 11204,) REPRESENTED and actively took up the
defense of FERNANDO LONCION et al. much to the dismay, damage and
prejudice of the herein petitioners, [and] a copy of Atty. Rodriguezs Answer, which
is also certified true and correct by Clerk of Court III Gerardo Ucat of Branch 3 of
MTCC Cagayan de Oro City, consisting of three (3) pages, is attached to the
original of this Petition, while photocopies of the same are attached to the other
copies hereof and accordingly marked as Annex C;
8. That the records will bear the petitioners out that their counsel, Atty. SALVA SR.
later on withdrew the case of Indirect Contempt upon the suggestion of Atty.
Maximo Rodriguez; and instead, filed the Motion for the Issuance of an Alias Writ of
Execution;
9. That on January 12, 1993, the herein respondent, without consulting the herein
Petitioners who are all poor and ignorant of court procedures and the law, filed in
behalf of the plaintiffs (which include the herein Petitioners) in Civil Case No. 11204,
a Motion to Withdraw Plaintiffs Exhibits, [and] a certified true and correct copy of
said Motion by Mr. Gerardo Ucat of MTCC Branch 3, Cagayan de Oro City is
herewith attached to the original of this Petition, while photocopies of the same are
also attached to the rest of the copies of this same Petition, and are
correspondingly marked as their Annex D.
10. That the illegal and unethical actions of Atty. Maximo Rodriguez are most
obnoxious, condemnable, and highly immoral, to say the least, more so if we
consider his social standing and ascendancy in the community of Cagayan de Oro
City;
11. That the records of Civil Case No. 11204 which are voluminous will bear the
petitioners allegations against the herein respondent, who, after representing them
initially, then transferring allegiance and services to the adverse parties (Lonchion,
Palacio and NHA Manager), came back to represent the herein petitioners without
any regard [for] the rules of law and the Canons of Professional Ethics, which is
highly contemptible and a clear violation of his oath as a lawyer and an officer of the
courts of law;
12. That these acts are only those that records will bear, because outside of the
court records, respondent, without regard [for] delicadeza, fair play and the rule of
law, has assigned, apportioned and sold parcels of land[,] subject matter in Civil
Case No. 11204 which legally have been pronounced and decided to be in the
possession of the plaintiffs in Civil Case No. 11204, who are partly the petitioners
herein. Thus, they cannot yet enjoy the fruits of the tedious and protracted legal
battle because of respondents illegal acts, which have instilled fear among the
plaintiffs and the petitioners herein;
13. That respondent lawyer even represented ERLINDA ABRAGAN, one of the
herein petitioners, in a later proceedings in Civil Case No. 11204 wherein the
apportionment of parcels of land was erroneously, unprocedurally and illegally
submitted to a commissioner, and that ERLINDA ABRAGAN, after winning in the
said Civil Case was later on dispossessed of her rights by respondent counsels
maneuver, after the decision (in Civil Case No. 11208) became final executory;
14. That to make matters worse, respondent Atty. Rodriguez eventually fenced an
area consisting of about 10, 200 square meters within Lot No. 1982[,] the subject
matter in Civil Case No. 11204 without the consent of the herein petitioners. He
even openly and publicly proclaimed his possession and ownership thereof, which
fact is again and also under NBI investigation;
15. That all the foregoing acts of respondent lawyer plus his continuing and ongoing
illegal and unethical maneuvers have deprived the herein petitioners of their vested
rights to possess and eventually own the land they have for decades possessed,
and declared as such by final judgment in Civil Case No. 11204.
In his Comment,[2] respondent flatly denied the accusations of petitioners. He
explained that the withdrawal of the exhibits, having been approved by the trial court,
was not illegal, obnoxious, undesirable and highly immoral. He added that he took
over the 8,000 square meters of land only after it had been given to him as attorneys
fees. In his words:
14. Respondent ADMITS that he fenced an area of about 8,000 sq. [m]. after the
association had awarded the same as attorneys fees in Civil Case Number 11204,
the dismissal of the appeal by the NHA, the successful handling of three (3) cases
in the SUPREME COURT, the pending case of QUIETING OF TITLE filed by the
NHA, and for the pending reconveyance case, Civil Case No. 93-573, supra. These
area of 8,000 sq. [m]., was awarded as attorneys fees, which [were] supposed to be
ten percent of the 22 hectares, Lot No. 1982, the subject matter of Civil Case No.
11204, but the association and its members were able to take actual possession by
judgment of the courts only o[f] the twelve (12) hectares. [This] area consisting of
8,000 sq. [m]., and consisting of two (2) lots [was] fenced by the respondent to
prevent squatters from entering the area. The rights of possession and ownership
o[f] this area by the respondent depends upon the outcome of Civil Case No. 93-
573, supra, for reconveyance of title by the association and its members versus the
NHA, et. al. If it is true that this is under investigation by the NBI, then why, not wait
and submit the investigation of the NHA, instead of filing this unwarranted, false and
fabricated charge based on preposterous and ridiculous charges without any proof
whatsoever, except the vile [language] of an irresponsible lawyer.[3]
Thereafter, petitioners filed a Reply[4] in which they reiterated their
allegations against respondent and added that the latter likewise violated Rule 15.03
of the Code of Professional Responsibility. The Court referred the case to the
Integrated Bar of the Philippines (IBP) for investigation, report and/or decision.[5]
Report of the Investigating Commissioner
In her Report and Recommendation dated January 23, 2001, Investigating
IBP Commissioner Lydia A. Navarro recommended that respondent be suspended
from the practice of law for six (6) months for violation of Rule 15.03 of Canon 15 of
the Code of Professional Responsibility. Her report reads in part as follows:
From the facts obtaining, it is apparent that respondent represented conflicting
interest considering that the complainants were the same plaintiffs in both cases
and were duly specified in the pleadings particularly in the caption of the cases.
Under the said predicament even if complainants were excluded as members of the
Association represented by the respondent; the latter should have first secured
complainants written consent before representing defendants in the Indirect
Contempt case particularly Macario Palacio, president of the Association, or
inhibited himself.
It is very unfortunate that in his desire to render service to his client, respondent
overlooked the fact that he already violated Rule 15.03 of [C]anon 15 of the Code of
Professional Responsibility, to wit:
Rule 15.03 - A lawyer shall not represent conflicting interests except
by written consent of all concerned given after a
full disclosure of the facts.
We have no alternative but to abide by the rules.[6]
IBP Board of Governors Resolution
Upholding the above-quoted Report, the Board of Governors of the Integrated
Bar of the Philippines recommended via its May 26, 2001 Resolution that respondent
be suspended from the practice of law for two (2) months for violation of Rule 15.03
of Canon 15 of the Code of Professional Responsibility.
This Courts Ruling
We agree with the findings and the recommendation of the IBP Board of
Governors, but hold that the penalty should be six-month suspension as
recommended by the investigating commissioner.
Administrative Liability of Respondent
At the outset, we agree with Commissioner Navarros conclusion that apart
from their allegations in their various pleadings, petitioners did not proffer any proof
tending to show that respondent had sold to other persons several rights over the
land in question; and that he had induced the former counsel for petitioners, Atty.
Salva Jr., to withdraw the indirect contempt case that they had filed. Neither did the
IBP find anything wrong as regards the 8,000 square meters awarded to respondent
as payment for his legal services. Petitioners bare assertions, without any proof to
back them up, would not justify the imposition of a penalty on respondent.
professional standard. With these thoughts in mind, it behooves attorneys, like
Caesars wife, not only to keep inviolate the clients confidence, but also to avoid the
appearance of treachery and double-dealing. Only thus can litigants be encouraged
to entrust their secrets to their attorneys which is of paramount importance in the
administration of justice.
Because of his divided allegiance, respondent has eroded, rather than
enhanced, the public perception of the legal profession. His divided loyalty constitutes
malpractice for which he may be suspended, following Section 27, Rule 138 of the
Rules of Court, which provides:
SEC. 27. Disbarment or suspension of Attorneys by Supreme Court, grounds
therefor. Any member of the bar may be disbarred or suspended from his office as
attorney by the Supreme Court for any deceit, malpractice, or other gross
misconduct in such office, grossly immoral conduct, or by reason of his conviction of
a crime involving moral turpitude, or for any violation of the oath which he is
required to take before admission to practice, or for a wilful disobedience appearing
as an attorney for a party to a case without authority so to do. x x x.
Complainants ask that respondent be disbarred. We find however that
suspension of six (6) months from the practice of law, as recommended by
Commissioner Navarro, is sufficient to discipline respondent.
A survey of cases involving conflicting interests on the part of counsel reveals
that the Court has imposed on erring attorneys[12] either a reprimand, or a
suspension from the practice of law from five (5) months[13] to as high as two (2)
years.[14]
WHEREFORE, Maximo G. Rodriguez is found guilty of violating Rule 15.03
of Canon 15 of the Code of Professional Responsibility and is
hereby SUSPENDED for six (6) months from the practice of law, effective upon his
receipt of this Decision. He is warned that a repetition of the same or similar acts will
be dealt with more severely.
Let copies of this Decision be entered in the record of respondent as attorney
and served on the IBP, as well as on the Court Administrator who shall circulate it to
all courts for their information and guidance.

Having said that, we find, however, that respondent falls short of the integrity SO ORDERED.
and good moral character required from all lawyers. They are expected to uphold the
dignity of the legal profession at all times. The trust and confidence clients repose in
them require a high standard and appreciation of the latters duty to the former, the
legal profession, the courts and the public. Indeed, the bar must maintain a high
standard of legal proficiency as well as of honesty and fair dealings. To this end,
lawyers should refrain from doing anything that might tend to lessen the confidence
of the public in the fidelity, honesty and integrity of their profession.[7]

In the present case, respondent clearly violated Rule 15.03 of Canon 15 of

the Code of Professional Responsibility, which provides that a lawyer shall not
represent conflicting interests except by written consent of all concerned given after
full disclosure of the facts.

The Court explained in Buted v. Hernando:[8]

[A] lawyer represents conflicting interests when, in behalf of one client, it is his duty
to contend for that which duty to another client requires him to oppose.

The obligation to represent the client with undivided fidelity and not to divulge his
secrets or confidence forbids also the subsequent acceptance of retainers or
employment from others in matters adversely affecting any interest of the client with
respect to which confidence has been reposed.[9] (Italics in the original)

In the case at bar, petitioners were the same complainants in the indirect
contempt case and in the Complaint for forcible entry in Civil Case No.
11204.[10] Respondent should have evaluated the situation first before agreeing to
be counsel for the defendants in the indirect contempt proceedings. Attorneys owe
undivided allegiance to their clients, and should at all times weigh their actions,
especially in their dealings with the latter and the public at large. They must conduct
themselves beyond reproach at all times.

The Court will not tolerate any departure from the straight and narrow path
demanded by the ethics of the legal profession.

In Hilado v. David,[11] which we quote below, the Court advised lawyers to

be like Caesars wife to be pure and to appear to be so.

This stern rule is designed not alone to prevent the dishonest practitioner from
fraudulent conduct, but as well as to protect the honest lawyer from unfounded
suspicion of unprofessional practice. It is founded on principles of public policy, on
good taste. As has been said in another case, the question is not necessarily one of
the rights of the parties, but as to whether the attorney has adhered to proper
SPOUSES LIRIO U. RABANAL AND CAYETANO D.
RABANAL, complainants, vs. ATTY. FAUSTINO F.
TUGADE, respondent.
DECISION
MENDOZA, J.:
This is an administrative complaint filed by complainant spouses Cayetano
and Lirio Rabanal against Atty. Faustino F. Tugade. It is alleged that respondent, as
counsel for complainant Cayetano Rabanal, did not file the appellants brief in the
Court of Appeals, as a result of which the appeal filed by Cayetano was dismissed
and the decision of the then Circuit Criminal Court of Tuguegarao, Cagayan became
final and executory.
It appears that complainant Cayetano Rabanal was one of the accused-
appellants in Criminal Case No. CCC-I-150, entitled People of the Philippines v.
Marcelino Rabanal y Ibaez, et al., of the Criminal Circuit Court of Tuguegarao,
Cagayan.[1] He was found guilty of homicide and the case was appealed to the Court
of Appeals. Complainant terminated the services of his previous counsel and
engaged the services of respondent Atty. Faustino F. Tugade as new counsel to
prosecute the appeal.[2] However, despite the extension of time granted to him
totalling 60 days, Atty. Tugade failed to file the appellants brief, resulting in the
dismissal of the appeal.[3] Cayetano filed a motion for reconsideration, but his motion
was denied.[4] Complainants alleged that they paid P1,000.00 to respondent as
attorneys fees and, in addition, the amount of P1,400.00 for the preparation of the
appellants brief.[5] Complainants sought the suspension from the practice of law or
the disbarment of respondent attorney.[6]
In his comment dated October 24, 1974, respondent said he did not want to
accept complainants case due to his busy schedule, but that he was nonetheless
prevailed upon by the latter, who is his kababayan, to sign the appellants brief to be
filed in the case.[7] Cayetano gave the transcripts of stenographic notes (TSN)
pertaining to the case to respondent, and the sum of P600.00 as litigation expenses,
after which respondent asked another lawyer to prepare the appellants
brief. However, on May 11, 1974, Cayetano informed respondent that the Court of
Appeals had dismissed his appeal for failure of counsel to file an appellants brief.
Respondent alleged he then entered his appearance as counsel for Cayetano and
filed a motion for reconsideration with the Court of Appeals, for which he was
paid P800.00.[8] The motion was, however, denied and Cayetano served sentence
from 1974 to 1979, when he was released on conditional pardon.[9]
In a resolution, dated November 4, 1974, the Court referred the administrative
case against respondent to the Office of the Solicitor General (OSG) for investigation,
report, and recommendation.[10] The OSG conducted hearings on February 5, 1976
and November 27, 1976, during which the spouses Rabanal testified in support of
their complaint.[11] On January 24, 1979, Cayetano was released from the New Bilibid
Prisons on conditional pardon.[12] A few years later, the Committee on Bar Discipline
of the Integrated Bar of the Philippines (IBP) assumed jurisdiction over the
administrative case.[13] After each of the complainants had testified, the IBP
Commissioner set the hearing for reception of respondents evidence on June 26,
1992 with warning that the case would be considered submitted for resolution if
respondent failed to present his evidence.[14] Three notices of the hearing sent by
registered mail to respondent were, however, returned unclaimed.[15]Accordingly, the
IBP Hearing Commissioner, upon motion of complainant Lirio Rabanal, considered
the case submitted for resolution.[16] On May 8, 1993, the IBP Board of Governors
recommended to the Court the suspension of respondent from the practice of law for
at least one (1) year.[17]
On July 15, 1993, the IBP Commission on Bar Discipline transmitted the
records of the case to the Office of the Bar Confidant (OBC). Later, however, the
transcripts of stenographic notes (TSN) were lost.[18] In any case, on May 20, 2002,
the Office of the Bar Confidant (OBC) adopted the findings of the IBP and
recommended the suspension of respondent from the practice of law for one (1)
year.[19]
After a review of the records of this case, the Court finds no basis for reversing
the findings and recommendation of the IBP and the OBC. Their recommendation is
affirmed with the modification that the penalty imposed is reduced from one (1) year
to six (6) months.
Respondent claims that he was not the counsel of complainant Cayetano
Rabanal prior to the filing of a motion for reconsideration before the Court of Appeals
and he could not be held responsible for the dismissal of complainants appeal for
failure of counsel to file the appellants brief. We disagree.
The absence of a written contract does not preclude a finding that there was
a professional relationship which merits attorneys fees for professional services
rendered. A written contract is not an essential element in the employment of an
attorney; the contract may be express or implied. To establish the relation, it is
sufficient that the advice and assistance of an attorney is sought and received in any
matter pertinent to his profession.[20] Thus, in Villafuerte v. Cortez,[21] the Court held
that the admission of respondent lawyer that he received payment from complainant
is sufficient evidence to establish a lawyer-client relationship. In this case,
complainant sought and received legal advice from respondent Tugade, who
admitted that he agreed to sign the appellants brief to be filed and that he
received P600.00 from complainant spouses. It is therefore clear that a lawyer-client
relationship existed between the two.
It is immaterial that respondent Tugade assisted Cayetano in the case as a
mere friend or kababayan of the latter. In Junio v. Grupo,[22] respondent also denied
the existence of a lawyer-client relationship, stating that complainant was a close
personal friend whom he helped in a personal capacity. Nonetheless, it was held:
To constitute professional employment it is not essential that the client should have
employed the attorney professionally on any previous occasion. . . It is not
necessary that any retainer should have been paid, promised, or charged for:
neither is it material that the attorney consulted did not afterward undertake the
case about which the consultation was had. If a person, in respect to his business
affairs or troubles of any kind, consults with his attorney in his professional capacity
with the view to obtaining professional advice or assistance, and the attorney
voluntarily permits or acquiesces in such consultation, then the professional
employment must be regarded as established. . . .
In this case, Cayetano consulted respondent Tugade in his professional
capacity in order to obtain advice concerning his appeal. Respondent agreed, as
shown by his acceptance of the payment to him, his receipt of the TSNs of the case,
and the fact that he signed the appellants brief. His claim that he merely accepted
payment but that he asked another lawyer to prepare the brief is an obvious
subterfuge. He has not even named the lawyer assuming that the latter is real. It is
hard to see why respondent should personally accept payment and the transcripts of
stenographic notes from complainant if he did not intend to prepare the appellants
brief. Moreover, the fact that respondent filed a motion for reconsideration after the
dismissal of the appeal only confirms that he was indeed Cayetanos lawyer.
The records clearly show that respondent Atty. Faustino F. Tugade was
remiss in the performance of his duties as counsel of complainant Cayetano
Rabanal. He was given by the Court of Appeals an extension of time totalling 60 days
within which to file the appellants brief, but he failed to file the same. He thus violated
the Code of Professional Responsibility which provides:
RULE 12.03. A lawyer shall not, after obtaining extensions of time to file pleadings,
memoranda or briefs, let the period lapse without submitting the same or offering an
explanation for his failure to do so.
RULE 18.03. A lawyer shall not neglect a legal matter entrusted to him, and his
negligence in connection therewith shall render him liable.
What this Court said in another case is fitting:
Once he agrees to take up the cause of a client, the lawyer owes fidelity to such
cause and must always be mindful of the trust and confidence reposed in him. He
must serve the client with competence and diligence, and champion the latters
cause with wholehearted fidelity, care, and devotion. Elsewise stated, he owes
entire devotion to the interest of the client, warm zeal in the maintenance and
defense of his clients 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. This simply means that his client is entitled to the benefit of any and
every remedy and defense that is authorized by the law of the land and he may
expect his lawyer to assert every such remedy or defense. If much is demanded
from an attorney, it is because the entrusted privilege to practice law carries with it
the correlative duties not only to the client but also to the court, to the bar, and to
the public. A lawyer who performs his duty with diligence and candor not only
protects the interest of his client; he also serves the ends of justice, does honor to
the bar, and helps maintain the respect of the community to the legal profession.[23]
Indeed, a lawyer owes fidelity to the cause of his client. He should be mindful
of the trust and confidence reposed in him, remembering always that his actions or
omissions are binding on his clients. In this case, the failure of respondent to file the
appellants brief resulted in the dismissal of the appeal. As a consequence, the
decision in the trial court finding complainant guilty of homicide became final and
executory and he was sentenced to ten years of imprisonment. As has been held:
An attorney is bound to protect his clients interest to the best of his ability and with
utmost diligence. (Del Rosario vs. Court of Appeals, 114 SCRA 159) A failure to file
brief for his client certainly constitutes inexcusable negligence on his part. (People
vs. Villar, 46 SCRA 107) The respondent has indeed committed a serious lapse in
the duty owed by him to his client as well as to the Court not to delay litigation and
to aid in the speedy administration of justice. (People vs. Daban, 43 SCRA 185;
People vs. Estocada, 43 SCRA 515).[24]
It should likewise be noted that respondent failed to notify the IBP of his
change of address, thus delaying the resolution of this case. Service of notice and
other pleadings, which must be furnished to the parties, must be made at the last
address on record. If the parties are represented by counsel, such notices shall be
sent instead to the counsels last given address on record in the absence of a proper
and adequate notice of a change of address, unless service upon the party himself
is ordered.[25]
In Resurreccion v. Sayson,[26] the Court attributed the delay in the resolution
of an administrative case to respondent lawyer, after finding that The 27-year delay
in the resolution of this case was, to a large extent, caused by his failure to appear
before the Office of the Solicitor General and to inform the IBP of his change of
address, a failure that also indicated his lack of regard for the very serious charges
brought against him. Similarly, respondent Tugade likewise showed a disregard of
the charge against him, and the IBP properly made its recommendation solely on the
basis of complainants testimonies and the documentary evidence.
In Galen v. Paguirigan,[27] the Court, taking into account that it was a first
offense, suspended for a period of six (6) months a lawyer who failed to file a
brief. Atty. Faustino Tugade showed lack of due care for his clients interest and willful
neglect of his duties as an officer of the court, thus warranting the imposition of the
same penalty on him.
WHEREFORE, in view of the foregoing, respondent Atty. Faustino F. Tugade
is SUSPENDED from the practice of law for six (6) months effective upon finality
hereof with WARNING that a repetition of the same negligent act charged in this
complaint will be dealt with even more severely.
SO ORDERED.
[A.C. No. 5128. March 31, 2005.]
ELESIO 1 C. PORMENTO, SR., complainant, vs. ATTY. ELIAS
A. PONTEVEDRA, respondent.
RESOLUTION
AUSTRIA-MARTINEZ, J p:
In a verified Complaint 2 dated August 7, 1999, Elesio C. Pormento, Sr.
charged Atty. Elias A. Pontevedra with malpractice and misconduct, praying
that on the basis of the facts alleged therein, respondent be disbarred.
Complainant alleges that between 1964 and 1994, respondent is his family's
legal counsel having represented him and members of his family in all legal
proceedings in which they are involved. Complainant also claims that his
family's relationship with respondent extends beyond mere lawyer-client
relations as they gave respondent moral, spiritual, physical and financial
support in his different endeavors. 3
Based on the allegations in the complaint, the rift between complainant and
respondent began when complainant's counterclaim in Civil Case No. 1648
filed with the Regional Trial Court of Bacolod City was dismissed. Complainant
claims that respondent, who was his lawyer in the said case, deliberately failed
to inform him of the dismissal of his counterclaim despite receipt of the order of
dismissal by the trial court, as a result of which, complainant was deprived of
his right to appeal said order. Complainant asserts that he only came to know
of the existence of the trial court’s order when the adverse party in the said
case extrajudicially foreclosed the mortgage executed over the parcel of land
which is the subject matter of the suit. In order to recover his ownership over
the said parcel of land, complainant was constrained to hire a new lawyer as
Atty. Pontevedra refused to institute an action for the recovery of the subject
property. 4
Complainant also claims that in order to further protect his rights and interests
over the said parcel of land, he was forced to initiate a criminal case for
qualified theft against the relatives of the alleged new owner of the said land.
Respondent is the counsel of the accused in said case. Complainant claims
that as part of his defense in said criminal case, respondent utilized pieces of
confidential information he obtained from complainant while the latter is still his
client. 5
In a separate incident, complainant claims that in 1967, he bought a parcel of
land located at Escalante, Negros Occidental. The Deed of Declaration of
Heirship and Sale of said land was prepared and notarized by respondent.
Since there was another person who claims ownership of the property,
complainant alleges that he heeded respondent's advice to build a small house
on the property and to allow his (complainant's) nephew and his family to
occupy the house in order for complainant to establish his possession of the
said property. Subsequently, complainant's nephew refused to vacate the
property prompting the former to file an ejectment case with the Municipal Trial
Court of Escalante, Negros Occidental, docketed as Civil Case No. 528.
Respondent acted as the counsel of complainant's nephew. 6
Complainant contends that respondent is guilty of malpractice and misconduct
by representing clients with conflicting interests and should be disbarred by
reason thereof. 7
In his Comment, 8 respondent contends that he was never a direct recipient of
any monetary support coming from the complainant. Respondent denies
complainant's allegation that he (respondent) did not inform complainant of the
trial court's order dismissing the latter's counterclaim in Civil Case No. 1648.
Respondent claims that within two days upon his receipt of the trial court's
order of dismissal, he delivered to complainant a copy of the said order,
apprising him of its contents. As to his representation of the persons against
whom complainant filed criminal cases for theft, 9 respondent argues that he
honestly believes that there exists no conflict between his present and former
clients' interests as the cases he handled for these clients are separate and
distinct from each other. He further contends that he took up the cause of the
accused in the criminal cases filed by complainant for humanitarian
considerations since said accused are poor and needy and because there is a
dearth of lawyers in their community. With respect to the case for ejectment
filed by complainant against his nephew, respondent admits that it was he who
notarized the deed of sale of the parcel of land sold to complainant. However,
he contends that what is being contested in the said case is not the ownership
of the subject land but the ownership of the house built on the said land. 10
On December 21, 1999, complainant filed a Reply to respondent's
Comment. 11
On January 19, 2000, the Court referred the instant case to the Integrated Bar
of the Philippines (IBP) for investigation, report and recommendation. 12
On February 18, 2002, respondent filed a Rejoinder to complainant's Reply
adding that the instant complaint was orchestrated by complainant's son who
wanted political vengeance because he lost the vice-mayoralty post to
respondent during the 1988 local elections. 13
On February 20, 2002, complainant filed a Sur-Rejoinder to respondent's
Rejoinder. 14
Thereafter, the parties filed their respective Position Papers, 15 after which the
case was deemed submitted for resolution.
In his Report and Recommendation dated February 20, 2004, Investigating
Commissioner Agustinus V. Gonzaga found respondent guilty of violating Rule
15.03, Canon 15 of the Code of Professional Responsibility. He recommended
that respondent be meted the penalty of suspension for one month.
In a minute Resolution passed on July 30, 2004, the IBP Board of Governors
resolved to annul and set aside the recommendation of the Investigating
Commissioner and instead approved the dismissal of the complaint for lack of
merit, to wit:
RESOLUTION NO. XVI-2004-387
Adm. Case No. 5128
Elesio C. Pormento, Sr., vs. Atty. Elias
A. Pontevedra
RESOLVED to ANNUL and SET ASIDED [sic], as it
is hereby ANNULLED and SET ASIDE, the
Recommendation of the Investigating Commission,
and to APPROVE the DISMISSAL of the above-
entitled case for lack of merit of the complaint.
We do not agree with the dismissal of the complaint.
At the outset, we reiterate the settled rule that in complaints for disbarment, a
formal investigation is a mandatory requirement which may not be dispensed
with except for valid and compelling reasons. 16 Formal investigations entail
notice and hearing. However, the requirements of notice and hearing in
administrative cases do not necessarily connote full adversarial proceedings,
as actual adversarial proceedings become necessary only for clarification or
when there is a need to propound searching questions to witnesses who give
vague testimonies. 17 Due process is fulfilled when the parties were given
reasonable opportunity to be heard and to submit evidence in support of their
arguments. 18
From the records extant in the present case, it appears that the Investigating
Commissioner conducted a hearing on January 16, 2002 where it was agreed
that the complainant and the respondent shall file their respective position
papers, after which the case shall be deemed submitted for resolution. 19 No
further hearings were conducted.
It is also disturbing to note that the abovementioned Resolution of the IBP
Board of Governors, annulling and setting aside the recommendation of the
Investigating Commissioner, is bereft of any findings of facts or explanation as
to how and why it resolved to set aside the recommendation of the
Investigating Commissioner and instead dismissed the complaint against
respondent.
Section 12(a), Rule 139-B of the Rules of Court provides:
SEC. 12. Review and decision by the Board of
Governors. —
(a) Every case heard by an investigator shall be reviewed by the
IBP Board of Governors upon the record and evidence
transmitted to it by the Investigator with his report. The
decision of the Board upon such review shall be in
writing and shall clearly and distinctly state the facts
and the reasons on which it is based. It shall be
promulgated within a period not exceeding thirty (30)
days from the next meeting of the Board following the
submittal of the Investigator's report. (Emphasis
supplied)
In Cruz vs. Cabrera, 20 we reiterated the importance of the requirement that
the decision of the IBP Board of Governors must state the facts and the
reasons on which such decision is based, which is akin to what is required of
the decisions of courts of record. We held therein that:
 [A]side from informing the parties the reason for the
decision to enable them to point out to the appellate
court the findings with which they are not in agreement,
in case any of them decides to appeal the decision, it is
also an assurance that the judge, or the Board of
Governors in this case, reached his judgment through
the process of legal reasoning. SHEIDC
Noncompliance with this requirement would normally result in the
remand of the case. 21
Moreover, while we may consider the act of the IBP Board of Governors in
simply adopting the report of the Investigating Commissioner as substantial
compliance with said Rule, in this case, we cannot countenance the act of the
IBP Board of Governors in merely stating that it is annulling the
Commissioner's recommendation and then dismiss the complaint without
stating the facts and the reasons for said dismissal.
However, considering that the present controversy has been pending
resolution for quite some time, that no further factual determination is required,
and the issues being raised may be determined on the basis of the numerous
pleadings filed together with the annexes attached thereto, we resolve to
proceed and decide the case on the basis of the extensive pleadings on
record, in the interest of justice and speedy disposition of the case. 22
Coming to the main issue in the present case, respondent is being accused of
malpractice and misconduct on three grounds: first, for representing interests
which conflict with those of his former client, herein complainant; second, for
taking advantage of the information and knowledge that he obtained from
complainant; and, third, for not notifying complainant of the dismissal of his
counterclaim in Civil Case No. 1648.
We shall concurrently discuss the first and second grounds as they are
interrelated.
Rule 15.03, Canon 15 of the Code of Professional Responsibility provides:
"A lawyer shall not represent conflicting interests
except by written consent of all concerned given after a
full disclosure of the facts."
Corollary to this, Canon 21 of the same Code enjoins a lawyer to
preserve the confidences and secrets of his clients even after the
attorney-client relation is terminated. Rule 21.02, Canon 21 specifically
requires that:
A lawyer shall not, to the disadvantage of his client, use
information acquired in the course of employment, nor
shall he use the same to his own advantage or that of a
third person, unless the client with full knowledge of the
circumstances consents thereto.
In addition, Canon 6 of the Canons of Professional Ethics states:
It is the duty of a lawyer at the time of retainer to
disclose to the client all the circumstances of his
relations to the parties and any interest in or connection
with the controversy, which might influence the client in
the selection of counsel.
It is unprofessional to represent conflicting interests,
except by express consent of all concerned given after
a full disclosure of the facts. Within the meaning of this
canon, a lawyer represents conflicting interests when,
in behalf of one client, it is his duty to contend for that
which duty to another client requires him to oppose.
The obligation to represent the client with undivided
fidelity and not to divulge his secrets or confidences
forbids also the subsequent acceptance of retainers or
employment from others in matters adversely affecting
any interest of the client with respect to which
confidence has been reposed. CcAITa
Jurisprudence instructs that there is a representation of conflicting interests if
the acceptance of the new retainer will require the attorney to do anything
which will injuriously affect his first client in any matter in which he represents
him and also whether he will be called upon in his new relation, to use against
his first client any knowledge acquired through their connection. 23 Another
test to determine if there is a representation of conflicting interests is whether
the acceptance of a new relation will prevent an attorney from the full
discharge of his duty of undivided fidelity and loyalty to his client or invite
suspicion of unfaithfulness or double dealing in the performance thereof. 24
A lawyer is forbidden from representing a subsequent client against a former
client when the subject matter of the present controversy is related, directly or
indirectly, to the subject matter of the previous litigation in which he appeared
for the former client. 25 Conversely, he may properly act as counsel for a new
client, with full disclosure to the latter, against a former client in a matter wholly
unrelated to that of the previous employment, there being in that instance no
conflict of interests. 26 Where, however, the subject matter of the present suit
between the lawyer's new client and his former client is in some way
connected with that of the former client's action, the lawyer may have to
contend for his new client that which he previously opposed as counsel for the
former client or to use against the latter information confided to him as his
counsel. 27 As we have held in Maturan vs. Gonzales: 28
The reason for the prohibition is found in the relation
of attorney and client, which is one of trust and
confidence of the highest degree. A lawyer becomes
familiar with all the facts connected with his client's
case. He learns from his client the weak points of
the action as well as the strong ones. Such
knowledge must be considered sacred and guarded
with care. No opportunity must be given him to take
advantage of the client's secrets. A lawyer must
have the fullest confidence of his client. For if the
confidence is abused, the profession will suffer by
the loss thereof. 29
The proscription against representation of conflicting interests finds application
where the conflicting interests arise with respect to the same general matter
and is applicable however slight such adverse interest may be. 30 In essence,
what a lawyer owes his former client is to maintain inviolate the client's
confidence or to refrain from doing anything which will injuriously affect him in
any matter in which he previously represented him. 31
In the present case, we find no conflict of interests when respondent
represented herein complainant's nephew and other members of his family in
the ejectment case, docketed as Civil Case No. 528, and in the criminal
complaint, denominated as I.S. Case No. 99-188, filed by herein complainant
against them. The only established participation respondent had with respect
to the parcel of land purchased by complainant, is that he was the one who
notarized the deed of sale of the said land. On that basis alone, it does not
necessarily follow that respondent obtained any information from herein
complainant that can be used to the detriment of the latter in the ejectment
case he filed.
While complainant alleges that it was respondent who advised him to allow his
nephew to temporarily occupy the property in order to establish complainant's
possession of said property as against another claimant, no corroborating
evidence was presented to prove this allegation. Defendant, in his answer to
the complaint for ejectment, raised the issue as to the right of the vendor to sell
the said land in favor of complainant. 32 However, we find this immaterial
because what is actually in issue in the ejectment case is not the ownership of
the subject lot but the ownership of the house built on the said lot.
Furthermore, the subject matter of I.S. Case No. 99-188 filed by complainant
against his nephew and other members of his family involves several parts of
trucks owned by herein complainant. 33 This case is not in any way connected
with the controversy involving said parcel of land. In fine, with respect to Civil
Case No. 528 and I.S. Case No. 99-188, complainant failed to present
substantial evidence to hold respondent liable for violating the prohibition
against representation of conflicting interests.
However, we find conflict of interests in respondent's representation of herein
complainant in Civil Case No. 1648 and his subsequent employment as
counsel of the accused in Criminal Case No. 3159.
The subject matter in Civil Case No. 1648 is Lot 609 located at Escalante,
Negros Occidental, the same parcel of land involved in Criminal Case No.
3159 filed by herein complainant against several persons, accusing them of
theft for allegedly cutting and stealing coconut trees within the premises of the
said lot. Complainant contends that it is in this criminal case that respondent
used confidential information which the latter obtained from the former in Civil
Case No. 1648.
To prove his contention, complainant submitted in evidence portions of the
transcript of stenographic notes taken during his cross-examination in Criminal
Case No. 3159. However, after a reading of the said transcript, we find no
direct evidence to prove that respondent took advantage of any information
that he may have been acquired from complainant and used the same in the
defense of his clients in Criminal Case No. 3159. The matter discussed by
respondent when he cross-examined complainant is the ownership of Lot 609
in its entirety, only a portion of which was purportedly sold to complainant. Part
of the defense raised by his clients is that herein complainant does not have
the personality to file the criminal complaint as he is not the owner of the lot
where the supposed theft occurred. It is possible that the information as to the
ownership of the disputed lot used by respondent in bringing up this issue may
have been obtained while he still acted as counsel for complainant. It is also
probable that such information may have been taken from other sources, like
the Registry of Deeds, the Land Registration Authority or the respondent's
clients themselves. SHacCD
Nonetheless, be that as it may, it cannot be denied that when respondent was
the counsel of complainant in Civil Case No. 1648, he became privy to the
documents and information that complainant possessed with respect to the
said parcel of land. Hence, whatever may be said as to whether or not
respondent utilized against complainant any information given to him in a
professional capacity, the mere fact of their previous relationship should have
precluded him from appearing as counsel for the opposing side. As we have
previously held:
The relations of attorney and client is [are] founded
on principles of public policy, on good taste. The
question is not necessarily one of the rights of the
parties, but as to whether the attorney has adhered
to proper professional standard. With these thoughts
in mind, it behooves attorneys, like Caesar's wife,
not only to keep inviolate the client's confidence, but
also to avoid the appearance of treachery and
double-dealing. Only thus can litigants be
encouraged to entrust their secrets to their attorneys
which is of paramount importance in the
administration of justice. 34
Moreover, we have held in Hilado vs. David 35 that:
Communications between attorney and client are, in
a great number of litigations, a complicated affair,
consisting of entangled relevant and irrelevant,
secret and well known facts. In the complexity of
what is said in the course of dealings between an
attorney and client, inquiry of the nature suggested
would lead to the revelation, in advance of the trial,
of other matters that might only further prejudice the
complainant's cause. 36
Thus, respondent should have declined employment in Criminal Case
No. 3159 so as to avoid suspicion that he used in the criminal action any
information he may have acquired in Civil Case No. 1648.
Moreover, nothing on record would show that respondent fully apprised
complainant and his new clients and secured or at least tried to secure their
consent when he took the defense of the accused in Criminal Case No. 3159.
Respondent contends that he handled the defense of the accused in the
subject criminal case for humanitarian reasons and with the honest belief that
there exists no conflict of interests. However, the rule is settled that the
prohibition against representation of conflicting interests applies although the
attorney's intentions and motives were honest and he acted in good
faith. 37 Moreover, the fact that the conflict of interests is remote or merely
probable does not make the prohibition inoperative. 38
Respondent also asserts that when he accepted employment in Criminal Case
No. 3159, the attorney-client relations between him and complainant in Civil
Case No. 1648 had already been terminated. This defense does not hold water
because the termination of the relation of attorney and client provides no
justification for a lawyer to represent an interest adverse to or in conflict with
that of the former client. 39
Thus, we find respondent guilty of misconduct for representing conflicting
interests.
As to the third ground, we find that complainant failed to present substantial
evidence to prove that respondent did not inform him of the dismissal of his
counterclaim in Civil Case No. 1648. On the contrary, we find sufficient
evidence to prove that complainant has been properly notified of the trial
court's order of dismissal. The only proof presented by complainant to support
his claim is the affidavit of his daughter confirming complainant’s contention
that respondent indeed failed to inform him of the dismissal of his
counterclaim. 40 However, in the same affidavit, complainant's daughter
admits that it was on December 4, 1989 that respondent received the order of
the trial court dismissing complainant’s counterclaim. Respondent, presented a
"certification" dated December 11, 1989, or one week after his receipt of the
trial court's order, where complainant's daughter acknowledged receipt of the
entire records of Civil Case No. 1648 from complainant. 41 The same
"certification" relieved respondent of his obligation as counsel of complainant.
From the foregoing, it can be inferred that respondent duly notified complainant
of the dismissal of his counterclaim. Otherwise, complainant could not have
ordered his daughter to withdraw the records of his case from respondent at
the same time relieving the latter of responsibility arising from his obligation as
complainant's counsel in that particular case. HDAaIS
As to the penalty to be imposed, considering respondent's honest belief that
there is no conflict of interests in handling Civil Case No. 1648 and Criminal
Case No. 3159, and it appearing that this is respondent's first infraction of this
nature, we find the penalty of suspension to be disproportionate to the offense
committed. 42 Moreover, we take into account respondent's undisputed claim
that there are only three lawyers who are actually engaged in private practice
in Escalante, Negros Occidental, where both complainant and respondent
reside. One of the lawyers is already handling complainant's case, while the
other lawyer is believed by respondent's clients to be a relative of complainant.
Hence, respondent's clients believed that they had no choice but go to him for
help. We do not find this situation as an excuse for respondent to accept
employment because he could have referred his clients to the resident lawyer
of the Public Attorney's Office or to other lawyers in the neighboring towns.
Nonetheless, in view of respondent's belief that he simply adhered to his sworn
duty to defend the poor and the needy, we consider such situation as a
circumstance that mitigates his liability. Considering the foregoing facts and
circumstances, we find it proper to impose a fine on respondent. In Sibulo vs.
Cabrera, 43 the respondent is fined for having been found guilty of unethical
conduct in representing two conflicting interests.
Respondent is further reminded to be more cautious in accepting professional
employments, to refrain from all appearances and acts of impropriety including
circumstances indicating conflict of interests, and to behave at all times with
circumspection and dedication befitting a member of the Bar, especially
observing candor, fairness and loyalty in all transactions with his clients. 44
WHEREFORE, respondent Atty. Elias A. Pontevedra is found GUILTY of
representing conflicting interests and is hereby FINED in the amount of Ten
Thousand (P10,000.00) Pesos. He is WARNED that a repetition of the same or
similar acts will be dealt with more severely. TIESCA
The Board of Governors of the Integrated Bar of the Philippines is DIRECTED
to be heedful of the requirements provided for in Section 12(a), Rule 139-B of
the Rules of Court as discussed in the text of herein decision.
SO ORDERED.
||| (Pormento, Sr. v. Pontevedra, A.C. No. 5128, [March 31, 2005], 494 PHIL
164-185)
CANON 16
[Adm. Case No. 5811. January 20, 2003.]
MARITESS GARCIA, complainant, vs. ATTY. ILUMINADO
M. MANUEL, respondent.
Cabredo & Tria Law Office for complainants.
SYNOPSIS
An administrative complaint for disbarment was filed against respondent Atty.
Iluminado M. Manuel for gross misconduct for his ineffective handling of
complainant's case and for failure to return the money which the complainant gave
him. Complainant hired the services of the respondent to evict her estranged husband
from her condominium unit in San Juan M.M. Complainant made several follow-ups
with respondent inquiring as to whether the ejectment case had been filed. However,
through a telephone conversation with respondent, complainant found out that the
ejectment case had not been filed yet. Agitated by the information, complainant
immediately went to respondent's residence where an altercation took place, which
caused the respondent to return to the complainant all her documents. However, the
money paid to him was never returned despite demands made by complainant.
Aggrieved by the respondent's actuations, complainant filed with the Integrated Bar
of the Philippines (IBP) the instant complaint for gross misconduct against
respondent. The IBP Board of Governors approved the report and recommendation
of the investigating commissioner but recommended that the penalty be increased
from one month to six months suspension from the practice of law.
The Supreme Court found Atty. Iluminado M. Manuel guilty of gross misconduct and
was suspended from the practice of law for a period of six months, with a stern
warning that a repetition of the same or similar act shall be dealt with more severely.
Respondent was also ordered to render an accounting of all monies received by him
from complainant. According to the Court, respondent received the amount of
P10,000.00 specifically for filing fees in the ejectment case. Thus, he was under
obligation to render an accounting of the same. The highly fiduciary and confidential
relation of attorney and client requires that the lawyer should promptly account for all
the funds received from, or held by him for, the client. In the instant case, respondent
failed to account and return the P10,000.00 for the filling fees despite complainant's
repeated demands.
SYLLABUS
1. LEGAL ETHICS; LAWYERS MUST UPHOLD AT ALL TIMES THE DIGNITY AND
INTEGRITY OF THE LEGAL PROFESSION. — 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. Canon 1 of the Code of Professional Responsibility
commands all lawyers to uphold at all times the dignity and integrity of the legal
profession. Specifically, Rule 1.01 thereof provides: Rule 1.01 — A lawyer shall not
engage in unlawful, dishonest and immoral or deceitful conduct.
2. ID.; DUTIES OF A LAWYER TO CLIENTS; A LAWYER MUST INFORM HIS
CLIENT OF THE STATUS OF HIS CASE. — Canon 18, Rule 18.04 provides: Rule
18.04 — A lawyer shall keep the client informed of the status of his case and shall
respond within reasonable time to the client's request for information. The relationship
of lawyer-client being one of confidence, there is ever present the need for the client
to be adequately and fully informed of the developments of the case and should not
be left in the dark as to the mode and manner in which his interests are being
defended. It is only thus that the trust and faith in the counsel may remain unimpaired.
3. ID.; ID.; A LAWYER SHOULD PROMPTLY ACCOUNT FOR ALL THE FUNDS
RECEIVED FROM OR HELD BY HIM FOR HIS CLIENT; CASE AT BAR. —
Respondent also failed to comply with the norms embodied in Canon 16 of the Code
of Professional Responsibility, to wit: Canon 16. A lawyer shall hold in trust all moneys
and properties of his client that may come into his possession. Rule 16.01 — A lawyer
shall account for all money or property collected or received for or from the client. In
the instant case, respondent received the amount of P10,000 specifically for filing
fees in the ejectment case. Thus, he was under the obligation to render an accounting
of the same. The highly fiduciary and confidential relation of attorney and client
requires that the lawyer should promptly account for all the funds received from, or
held by him for, the client. Moreover, a lawyer who obtains possession of the funds
and properties of his client in the course of his professional employment shall deliver
the same to his client (a) when they become due or (b) upon demand. In the instant
case, respondent failed to account and return the P10,000 for the filing fees despite
complainant's repeated demands.
4. ID.; ID.; ID.; AN ATTORNEY'S LIEN IS NOT AN EXCUSE FOR NON-RENDITION
OF ACCOUNTING. — We find untenable respondent's claim that since complainant
was already in arrears with his fees, it was proper for him to apply the filing fees to
his attorney's fees. It has been held that an attorney's lien is not an excuse for a
lawyer's non-rendition of accounting. And while a lawyer is allowed to apply so much
of the client's funds as may be necessary to satisfy his lawful fees and disbursements,
the lawyer is however under the obligation to promptly thereafter notify his client.
Nothing on record supports respondent's claim that complainant was adequately
notified as to the application of the P10,000 (for the filing fees) to her arrears. . . . A
close reading of the receipt that while it authorizes respondent to apply whatever
would be left of the P10,000 (intended for the filing fees) to the retainer fee, it clearly
presupposes that the filing fee in the ejectment cases must have been paid
already. acITSD
5. ID.; ID.; GROSS MISCONDUCT; PRESENT IN CASE AT BAR. — We find
unwarranted respondent's claim that complainant impliedly terminated his services
when she asked for the return of all her documents. Complainant was upset by
respondent's non-filing of the ejectment case. She honestly believed that respondent
would already file the ejectment case after giving him the P10,000 for the filing fees.
It was thus a spontaneous and natural reaction for her to confront respondent of his
inaction. Her belligerence arose from her zealousness to have her former husband
ejected from her condominium unit. Assuming that complainant terminated
respondent's services, respondent would not; nonetheless, be relieved of his duty to
render the necessary accounting for all the monies received by him from complainant.
Respondent's actions erode the public perception of the legal profession. They
constitute gross misconduct for which he may be suspended. . . .
6. ID.; DISBARMENT; WHEN IMPOSED; PENALTY OF SUSPENSION IMPOSED
IN CASE AT BAR. — The supreme penalty of 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 and member of the bar. 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 sufficient sanction against
respondent. Suspension, we may add, is not primarily intended as punishment, but
as a means to protect the public and the legal profession.
RESOLUTION
DAVIDE, JR., C .J p:
For our resolution is the administrative complaint for disbarment filed by complainant
Maritess Garcia against respondent Atty. Iluminado M. Manuel for gross misconduct
for ineffectively handling her case and failing to return to her the money she gave
him.
The facts, as culled from the records, are uncomplicated:
Sometime in February 1999, Maritess Garcia, divorced from husband Oscar Fauni,
approached respondent for legal advice concerning child support and her
condominium unit in San Juan, Metro Manila, which her erstwhile husband refused
to vacate. Respondent agreed to handle her case at a fee of P70,000. Finding
respondent's fees reasonable, complainant entrusted to respondent all pertinent
papers for his study. An advance fee of P10,000 was then asked by respondent from
complainant.
On 17 February 1999, a retainer agreement was entered by complainant with
respondent, calling for the payment of (1) P35,000 payable in weekly installments of
preferably P5,000 but not less than P2,000; (2) P35,000 to come from the proceeds
of the sale of her condominium unit or from any amount that might be recovered from
Mr. Fauni, except that pertaining to child support; and (3) a contingent fee of 5% of
any amount that might be recovered from Mr. Fauni except that for child support.
Incidental expenses, such as filing fees and postage fees, were also made
chargeable to the account of the complainant. 1 On the same occasion, complainant
gave respondent the advance fee of P10,000. 2 Thereafter, respondent informed
complainant that he needed P10,000 for the filing fees.
On 4 March 1999, complainant gave respondent P10,000 for the filing fees in the
ejectment case. 3 She, however, asked respondent as to why the fees cost so much.
Respondent replied that filing fees are based on a certain percentage of the price of
the property and the amount of child support prayed for. A demand letter to vacate
the premises of the condominium dated 4 March 1999 was then prepared by
respondent and mailed to Mr. Fauni on 8 March 1999. 4
In the interim, complainant made several follow-ups with respondent inquiring
particularly as to whether the ejectment case had already been filed. Through a
telephone conversation with respondent on 7 April 1999, complainant found out that
the ejectment case had not been filed yet by respondent. Agitated by the information,
complainant immediately went to respondent's residence. An altercation between
respondent and complainant took place. After serious exchange of words, respondent
returned to complainant all of her documents. No amount of money was, however,
returned by respondent to complainant despite the latter's demand for its return.
Aggrieved by respondent's actuations, complainant filed on 30 June 1999 with the
Integrated Bar of the Philippines (IBP), Commission on Bar Discipline, the instant
complaint for gross misconduct against respondent. 5
In his Answer dated 24 September 1999, respondent denied having committed any
malicious, dishonest or anomalous acts against complainant. Respondent asserted
that he did not file the ejectment case because he had not yet received the registry
return card evidencing the receipt by Oscar Fauni of the demand letter he sent on 8
March 1999. It could not be said that he misappropriated the P10,000 for the filing
fees because complainant, who was then in arrears with her installment payments
for his fee, agreed that said P10,000 could be applied in the meantime to her account.
Finally, respondent averred that he never withdrew his services as counsel of
complainant; rather it was the complainant who explicitly discharged him when she
demanded for the return of the amounts she had paid him. 6
In his Report and Recommendation dated 7 May 2001, Investigating Commissioner
Atty. Caesar R. Dulay concluded that respondent was less than honest to his client
and displayed lack of candor and fidelity to her cause. He cited respondent's act of
(1) making it appear to complainant that as early a 17 February 1999, he already
needed P10,000 for filing fees; (2) failing to advise his client as to the real amount of
the filing fees; 7 and (3) failing to render an accounting of the monies received and
intended as filing fees. Moreover, Commissioner Dulay found respondent guilty of
misleading the Commission by his claim of having received the registry return card
on 7 April 1999, the truth of the matter being that respondent already received the
registry return card on 24 March 1999. He then recommended that respondent be
suspended from the practice of law for one month and be ordered to render an
accounting of all monies he received from the complainant. HIAEcT
In its Resolution No. XV-2002-239 of 29 June 2002, the Board of Governors of the
IBP approved and adopted Atty. Dulay's Report and Recommendation. It, however,
increased the recommended penalty of respondent from one month to six months of
suspension from the practice of law.
We agree with the findings and conclusions of Commissioner Dulay, as approved and
adopted by the Board of Governors of the IBP.
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. Canon 1 of the Code
of Professional Responsibility commands all lawyers to uphold at all times the dignity
and integrity of the legal profession. Specifically, Rule 1.01 thereof provides:
Rule 1.01 — A lawyer shall not engage in unlawful,
dishonest and immoral or deceitful conduct.
There is no need to stretch one's imagination to arrive at an inevitable conclusion that
respondent committed dishonesty and abused the confidence reposed in him by the
complainant. Respondent Manuel fully knew that the jurisdictional requirement of
demand to vacate had to be complied with before an ejectment case could be
filed, 8 and yet he asked complainant to raise the filing fee of P10,000 as early as 17
February 1999. 9 He likewise cannot take refuge behind his claim that he did not file
the ejectment case because he had not yet received the registry return card. The
records reveal that despite Atty. Manuel's receipt of the registry return card on 24
March 1999, 10 he still did not file an ejectment case.
Finally, if indeed respondent was in good faith in dealing with complainant, he should
have informed or advised the complainant of the status of her case or, at the least,
responded to her inquiries. Canon 18, Rule 18.04 provides:
Rule 18.04 — A lawyer shall keep the client informed of
the status of his case and shall respond within
reasonable time to the client's request for information.
The relationship of lawyer-client being one of confidence, there is ever present the
need for the client to be adequately and fully informed of the developments of the
case and should not be left in the dark as to the mode and manner in which his
interests are being defended. It is only thus that the trust and faith in the counsel may
remain unimpaired. 11
Respondent also failed to comply with the norms embodied in Canon 16 of the Code
of Professional Responsibility, to wit:
Canon 16. A lawyer shall hold in trust all moneys and
properties of his client that may come into his
possession.
Rule 16.01 — A lawyer shall account for all money or
property collected or received for or from the client.
In the instant case, respondent received the amount of P10,000 specifically for filing
fees in the ejectment case. Thus, he was under the obligation to render an accounting
of the same. The highly fiduciary and confidential relation of attorney and client
requires that the lawyer should promptly account for all the funds received from, or
held by him for, the client. 12
Moreover, a lawyer who obtains possession of the funds and properties of his client
in the course of his professional employment shall deliver the same to his client (a)
when they become due or (b) upon demand. 13 In the instant case, respondent failed
to account and return the P10,000 for the filing fees despite complainant's repeated
demands.
We find untenable respondent's claim that since complainant was already in arrears
with his fees, it was proper for him to apply the filing fees to his attorney's fees. It has
been held that an attorney's lien is not an excuse for a lawyer's non-rendition of
accounting. 14 And while a lawyer is allowed to apply so much of the client's funds
as may be necessary to satisfy his lawful fees and disbursements, the lawyer is
however under the obligation to promptly thereafter notify his client. 15 Nothing on
record supports respondent's claim that complainant was adequately notified as to
the application of the P10,000 (for the filing fees) to her arrears.
Besides, the receipt dated 4 March 1999 states that:
In the event that whatever is left of the P10,000 after the
filing of the ejectment case is insufficient for the filing fee
in the other collection case, the said balance shall be
applied to the installment due for the retainer
agreement. 16
A close reading of the receipt reveals that while it authorizes respondent to apply
whatever would be left of the P10,000 (intended for the filing fees) to the retainer fee,
it clearly presupposes that the filing fee in the ejectment cases must have been paid
already.
We find unwarranted respondent's claim that complainant impliedly terminated his
services when she asked for the return of all her documents. Complainant was upset
by respondent's non-filing of the ejectment case. She honestly believed that
respondent would already file the ejectment case after giving him the P10,000 for the
filing fees. It was thus a spontaneous and natural reaction for her to confront
respondent of his inaction. Her belligerence arose from her zealousness to have her
former husband ejected from her condominium unit. Assuming that complainant
terminated respondent's services, respondent would not, nonetheless, be relieved of
his duty to render the necessary accounting for all the monies received by him from
complainant.
Respondent's actions erode the public perception of the legal profession. They
constitute gross misconduct for which he may be suspended, following Section 27,
Rule 138 of the Rules of Court, which provides:
Sec. 27. Disbarment or suspension of attorneys by
Supreme Court, grounds therefor. — A member of the bar
may be disbarred or suspended from his office as attorney
by the Supreme Court for any deceit, malpractice, or other
gross misconduct in such office, grossly immoral conduct,
or by reason of his conviction of a crime involving moral
turpitude, or for any violation of the oath which he is required
to take before the admission to practice, or for a willful
disobedience appearing as attorney for a party without
authority to do so.
Complainant asks that respondent be disbarred. However, we find that suspension
from the practice of law is sufficient to discipline respondent. The supreme penalty of
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 and member of the
bar. 17 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. 18 In this case, we
find suspension to be sufficient sanction against respondent. Suspension, we may
add, is not primarily intended as punishment, but as a means to protect the public
and the legal profession. 19
WHEREFORE, respondent Atty. Iluminado M. Manuel is found GUILTY of gross
misconduct and is SUSPENDED from the practice of law for a period of six (6)
months, effective immediately, with a warning that a repetition of the same or similar
act will be dealt with more severely. Further, respondent is ordered to render, within
thirty (30) days from notice of this Resolution, an accounting of all monies received
by him from complainant.
Let notice of this Resolution be spread in respondent's record as an attorney in this
Court, and notice thereof be served on the Integrated Bar of the Philippines and on
the Office of the Court Administrator for circulation to all the courts
concerned. cEASTa
SO ORDERED.
||| (Garcia v. Manuel, Adm. Case No. 5811, [January 20, 2003], 443 PHIL 479-489)
OSCAR M. ESPIRITU, complainant, vs. ATTY. JAIME
C. ULEP, respondent.
RESOLUTION
CORONA, J p:
In a letter 1 addressed to the president of the Integrated Bar of
the Philippines (IBP), Nueva Ecija Chapter, complainant Oscar
M. Espiritu sought assistance to enable him to talk to respondent Atty.
Jaime C. Ulep who had allegedly been avoiding him for more than a year.
He wanted a meeting with respondent lawyer for the following reasons:
(1) respondent failed to turn-over to his client, Mr.
Ricardo Maon, the amount of P50,000
given to him by complainant on
December 22, 1997 as settlement of
Civil Case No. 1028, Municipal Trial
Court (MTC), Rizal, Nueva Ecija, and
(2) respondent refused to give complainant the
amount of P30,000 plus interest and
expenses as balance for a deed of
absolute sale dated December 22,
1997 which the respondent brokered
and notarized.
On April 5, 1999, the IBP Commission on Bar Discipline (CBD),
through Commissioner J.V. Bautista invited respondent to a meeting at IBP
Cabanatuan to determine whether an amicable settlement of the impending
complaint could be reached. 2
Due to respondent's failure to appear in the meeting, the IBP
Nueva Ecija Chapter formally endorsed the verified letter-complaint to the
IBP-CBD on April 19, 1999.
In an order 3 dated May 28, 1999, the IBP-CBD ordered
respondent to file his answer to the complaint pursuant to Rule 139-B, Sec.
6 of the Rules of Court.4
Respondent complied with the order by filing an affidavit which
turned out to be the same affidavit he submitted to the Provincial
Prosecutor's Office for the preliminary investigation of the estafa case filed
against him involving the same subject matter. We quote:
COUNTER-AFFIDAVIT
I, Atty. Jaime C. Ulep, of legal age,
married, and a resident of and with postal address
at Rizal, Nueva Ecija, after having been duly
sworn, in accordance with law, depose and state:
1. The case should be dismissed because the
same has no elements of
estafa; cAaDHT
2. The truth of the matter is that, at the time the
Deed of Sale of that agricultural land
was prepared, Mr. ESPIRITU admitted
for the first time that the owner's copy
of the Title was lost but the petition for
the issuance of the owner's copy was
being prepared; iatdc2005
3. In order to please Mr. ESPIRITU and not to
hamper the transaction and, at the
same time protect the interest of the
clients (Buyers), Mr. ESPIRITUagreed
to hold the amount of fifty thousand
pesos (P50,000.00) in trust to be given
to him after giving to me the Owner's
Copy;
4. Afterwards, his niece kept coming to my office
to ask for money in order, according to
her, to facilitate the issuance of the
Title. On November 3, 1998, his niece
demanded and received the amount of
five thousand pesos (P5,000.00) from
me. In other words, the total amount
demanded and received from me (out
of the P50,000.00) was twenty five
thousand (P25,000.00), as of
November 3, 1998. (A copy of the
receipt with a note "Balance Twenty
Five Thousand only (P25,000.00) was
written.);
5. After that date, no word was received by the
undersigned from
Mr. ESPIRITU whether the owner's
copy was issued;
6. I am obligated to give the amount of Twenty Five
Thousand Pesos (P25,000.00),
provided that he will give to me the
genuine owner's copy of the Title;
7. In view thereof, the case should be dismissed
because this is a clear case of specific
performance and not Estafa.
Atty. Jaime C. Ulep
Affiant 5
In the cover letter 6 of the counter-affidavit, respondent lawyer
sought a formal hearing on the administrative case.
Consequently, notice of hearing 7 was served upon the parties
to appear before the Commission on August 13, 1999.
Both parties failed to appear on the scheduled hearing. On
record, however, is a letter request 8 earlier filed by respondent to cancel
the scheduled hearing due to a prior engagement. He also asked for a
transfer of venue from Pasig City to Cabanatuan City. The Commission did
not immediately act on this request pending complainant's conformity.
In the next scheduled hearing, only complainant appeared
although respondent had been duly notified of the hearing as evidenced by
the registry receipt card. In the order 9 dated September 17, 1999 the
Commission denied the request for transfer of venue because of
complainant's protestation.
Over the vehement objection of the complainant, respondent
was given a last chance by the Commission to appear in a hearing reset to
October 29, 1999. It warned that a motion for postponement would no longer
be entertained. In case respondent still failed to appear, the Commission
was going to receive the complainant's evidence ex-parte and deem the
case submitted for resolution.
In a letter 10 dated October 28, 1999, respondent once again
requested a cancellation of the hearing, alleging that he was undergoing
"eye treatment."
The hearing was reset to November 19, 1999; again respondent
failed to appear. The Commission, once again exercising leniency, afforded
respondent "one last chance" to appear before it on January 21, 2000, with
another warning of an ex-parte reception of evidence. 11
In a letter 12 dated January 18, 2000, respondent again
requested a cancellation. He explained that he had to appear before the
MTC of Talavera, Nueva Ecija on the same date "in connection with a
criminal case." DcCHTa
Considering that respondent failed to appear successively in all
the scheduled hearings of the case, the Commission proceeded to conduct
a hearing on January 21, 2000. Complainant was allowed to submit and
offer his evidence against the respondent ex-parte, consisting of the
following:
Exhibit "A" — Complainant's verified
letter-request dated March 15, 1999;
Exhibit "B" — Certification by Atty.
Jaime C. Ulep dated December 22, 1997 that he
had in his possession the amount of P50,000 as
 consideration for the settlement of Civil Case No.
1028;
Exhibit "C" — Promissory note issued
by Atty. Jaime C. Ulep dated December 22, 1997
for the amount of P30,000;
Exhibit "D" — Deed of Absolute Sale
executed by Oscar M. Espiritu dated December
22, 1997;
Exhibit "E" — Letter of Ricardo Maon
dated March 9, 1999 addressed to the Tanggapan
ng Punong Barangay of Barangay Bicos, Rizal,
Nueva Ecija that he has not received any amount
from Atty. Jaime C. Ulep for the settlement of Civil
Case No. 1028; and
Exhibit "F" — Decision of the MTC of
Rizal, Nueva Ecija in Civil Case No. 1028
incorporating the compromise agreement between
Oscar Espiritu and Ricardo Maon.
After the pieces of evidence were marked, the case was submitted
for decision. 13
On December 29, 2000 Investigating Commissioner J.V.
Bautista submitted his report and recommendation 14 to the IBP Board of
Governors. He found respondent lawyer guilty of violating Canon 16 of the
Code of Professional Responsibility when he misappropriated the money
received by him for his client. A six-month suspension from the practice of
law was recommended for his transgression.
In a notice of resolution 15 dated June 29, 2002, the IBP Board
of Governors adopted and approved the report and recommendation of the
Investigating Commissioner. It found that the recommendation was fully
supported by the evidence on record and the applicable laws and rules. By
failing to deliver the amount of P50,000 to his client Ricardo Maon despite
demand — which constituted misappropriation of the client's money — it
found respondent guilty of violating Canon 16 of the Code of Professional
Responsibility. It ordered the immediate delivery to Ricardo Maon of the
amount of P50,000 plus interest computed at the legal rate from December
22, 1997 to the date of delivery and suspended respondent from the practice
of law for six months.
We agree with the IBP Board of Governors that respondent was
guilty of violating Canon 16 of the Code of Professional Responsibility.
The relation between attorney and client is highly fiduciary in
nature. Being such, it requires utmost good faith, loyalty, fidelity and
disinterestedness on the part of the attorney. Its fiduciary nature is intended
for the protection of the client. 16
The Code of Professional Responsibility mandates every lawyer
to hold in trust all money and properties of his client that may come into his
possession.17 Accordingly, he shall account for all money or property
collected or received for or from the client. 18 Even more specific is the
Canon of Professional Ethics:
The lawyer should refrain from any
action whereby for his personal benefit or gain he
abuses or takes advantage of the confidence
reposed in him by his client.
Money of the client or collected for the
client or other trust property coming into the
possession of the lawyer should be reported and
accounted for promptly and should not under any
circumstances be commingled with his own or be
used by him. ISHaTA
Consequently, a lawyer's failure to return upon demand the
funds or property held by him on behalf of his client gives rise to the
presumption that he has appropriated the same for his own use to the
prejudice of, and in violation of the trust reposed in him by, his client. It is a
gross violation of general morality as well as of professional ethics; it impairs
the public confidence in the legal profession and deserves punishment. 19
Lawyers who misappropriate the funds entrusted to them are in
gross violation of professional ethics and are guilty of betrayal of public
confidence in the legal profession. 20 Those who are guilty of such
infraction may be disbarred or suspended indefinitely from the practice of
law.
Here, it was established that respondent lawyer received for his
client Ricardo Maon the amount of P50,000 as settlement of Civil Case No.
1028 and that he did not deliver the same upon demand. As summarized
by the IBP Investigating Commissioner:
First, Exhibit "F" 21 proved that there
was an obligation on the part of
complainant Espiritu to deliver to Ricardo Maon,
who was respondent's client, the amount of
P50,000 as full settlement of Civil Case No. 1028.
Second, Exhibit "B" 22 proved that
complainant Espiritu gave to respondent lawyer
who acknowledged receipt thereof the amount of
P50,000 as settlement of Civil Case No. 1028. And
finally, Exhibit "E" 23 proved that Ricardo Maon,
respondent's client, did not receive any amount of
P50,000 from his lawyer as settlement of Civil
Case No. 1028. 24
His failure to appear on five consecutive, scheduled hearing
dates — requesting the cancellation and resetting of three and absolutely
ignoring two — showed an evasive attitude towards the resolution of the
administrative case filed against him and of which he himself sought a
formal hearing. Aside from his patent lack of respect for the Commission
and its proceedings, his repeated and obviously deliberate failure to appear
in the scheduled hearings revealed an attempt to wiggle away from having
to explain and ventilate his side. Worse, he did not file an answer to
controvert the allegations in the complaint. Instead, he filed a counter-
affidavit he had earlier submitted in a criminal case which, upon scrutiny,
referred only to a transaction involving what appeared to be a sale of real
property documented in exhibit "D" 25 of the complainant.
Respondent has no one else to blame but himself. Had he taken
the time to appear before the Commission and present his defenses, he
could have explained why he kept the money delivered to him by the
complainant as settlement of the civil case. As things stand therefore,
complainant's allegations against respondent remain completely
uncontroverted.
For misappropriating and failing to promptly report and deliver
money received on behalf of their clients, some lawyers have been
disbarred while others have been suspended for six months. 26 Since this
appears to be the first case of respondent in the IBP-CBD, we impose the
lighter penalty on him.
As to complainant's other claim for P30,000 which respondent
lawyer allegedly promised him, we rule the evidence to be lacking and
therefore find it premature to grant the award.
WHEREFORE, respondent Atty. Jaime C. Ulep is hereby found
GUILTY of violating Canon 16 of the Code of Professional Responsibility
and is hereby SUSPENDED from the practice of law for a period of six
months from notice, with a STERN WARNING that a repetition of the same
or similar act will be dealt with more severely.
Respondent is further ordered to restitute to his client Ricardo
Maon, in cash within 30 days from notice, the amount of P50,000 with
interest at the legal rate, computed from December 22, 1997 to the date of
delivery.
Let copies of this Resolution be furnished all courts of the land,
the Integrated Bar of the Philippines, as well as the Office of the Bar
Confidant for their information and guidance, and let it be entered in
respondent's record in this Court. EICSDT
SO ORDERED.
||| (Espiritu v. Ulep, A.C. No. 5808 (formerly A.C. CBD No. 99-622)
(Resolution), [May 4, 2005], 497 PHIL 339-347)
[A.M. No. RTJ-05-1932. April 2, 2007.] (formerly OCA IPI No. 03-1837-RTJ) HUMBERTO
C. LIM, JR.,for and in behalf of LUMOT ANLAP JALANDONI, complainant,vs.JUDGE
DEMOSTHENES L. MAGALLANES and Clerk of Court GIA INDEPENDENCIA L.
ARINDAY, Regional Trial Court, Branch 54, Bacolod City, respondents.
RESOLUTION
CORONA, J p:
Before us is an administrative complaint 1 against Judge Demosthenes
L. Magallanes, presiding judge of the Regional Trial Court (RTC) of Bacolod City, Branch
54, and Atty. Gia L. Arinday, clerk of court of the said branch. The complaint, dated August
8, 2003, was filed by Humberto Lim, Jr.,for and in behalf of Lumot Anlap Jalandoni.
Complainant Jalandoni was one of the defendants in Civil Case No. 97-
9680 2 assigned to Branch 54 of RTC Bacolod City. Despite a period of over five years
from the time it was submitted for decision, the case remained unresolved as of the filing
of the complaint. 3
In a letter dated July 7, 2003 4 addressed to respondent clerk of court,
defendants requested for copies of all court pleadings and incidents on record pertaining
to the civil case. Despite repeated follow-up, 5 respondent clerk of court failed to act on the
request.
On the other hand, Criminal Case Nos. 02-24328 & 02-24329, 6 and 02-
24330 & 02-24331 7 (in which complainant's family corporation was a party) were also
assigned to Branch 54 of RTC Bacolod City. In one of the hearings, complainant noticed
that respondent judge seated himself with the counsels of the opposing party and engaged
them in conversation. When complainant's counsel arrived, respondent judge suddenly
stood up and took the bench. 8
The Office of the Court Administrator (OCA) required respondent judge and
clerk of court to file their respective comments. 9 Both failed to comply. On December 8,
2003, tracers 10 were sent to them reiterating OCA's directive to file their comments.
On January 6, 2004, respondent judge submitted his comment 11 explaining
that it was with deep regret that he was unable to resolve and timely dispose of the case.
He claimed he was suffering from "heart ailment and hyperacidity" which made him easily
exhausted, causing the delay in resolving the cases pending in his court. His decision-
making was further hampered when his stenographer suffered a stroke and became
bedridden. He also averred that he had explained his condition to the parties to the case
and the latter understood his predicament.
On the other hand, respondent clerk of court failed to submit her comment in
continued defiance of the OCA's directives.
The OCA found the respondent judge's explanation unmeritorious. While his
condition was understandable, it was only mitigating and could not exculpate him from
liability. He should have asked the Court for an extension of time within which to decide the
case. The OCA recommended a fine of P11,000 with a stern warning that a similar
infraction in the future would be dealt with more severely. 12
As to respondent clerk of court, the OCA recommended that she be required
to show cause why she should not be administratively dealt with for her failure to submit
her comment.
On March 18, 2005, however, complainant manifested her lack of interest in
pursuing the administrative case. After receiving the decision on the civil case, she became
convinced that respondent judge was, after all, "impartial." Moreover, respondent judge
inhibited himself from hearing the criminal cases, disproving any personal interest in the
cases. She likewise conducted her own investigation and was satisfied that respondent
clerk of court had no part in the refusal to furnish the requested documents since she was
not present when the requests were made. For these reasons, she moved to withdraw the
complaint. 13
On June 29, 2005, this Court denied the motion to withdraw the case and
submitted the matter for resolution. As for respondent clerk of court, she had been given
two opportunities to comment on the complaint. Her refusal was deemed a waiver of her
right to do so. HCEaDI
A motion to withdraw an administrative complaint against a member of the
judiciary cannot deprive this Court of its authority to ascertain the culpability of a respondent
and impose the corresponding penalty. 14 This Court has a great interest in the conduct
and behavior of all officials and employees of the judiciary in ensuring the prompt and
efficient delivery of justice at all times. Its efforts to comply with its constitutional mandate
cannot be frustrated by any private arrangement of the parties 15 because the issue in an
administrative case is not whether the complainant has a cause of action against the
respondents but whether the latter breached the norms and standards of the courts. 16
Respondent judge admitted that he failed to resolve Civil Case No. 97-9680
for more than five years. This was a violation of the Constitution which mandates that lower
courts must dispose of their cases promptly and decide them within three months from the
filing of the last pleading, brief or memorandum required by the Rules of Court or by the
court itself. 17 It was also a violation of the Canon of Judicial Ethics 18 and Code of Judicial
Conduct 19which required judges to dispose of the court's business promptly and decide
cases within the required periods. 20
A judge should be efficient in performing his judicial duties. He should decide
his cases within the prescribed period; failure to do so constitutes gross inefficiency.
The raison d' etre of courts lies not only in properly dispensing justice but also in being able
to do so seasonably. 21
Respondent judge could not use his health condition and the absence of his
stenographer to justify his failure to promptly resolve the civil case. Moreover, the fact that
the parties to the case supposedly understood his condition did not excuse him from
complying with the period which he was mandated to observe in deference to the Court's
policy of speedy disposition of cases. At the very least, he should have asked for an
extension. While this Court understands that judges cannot always abide by the prescribed
periods, it is not for us to take the initiative in offering an extension. In numerous cases, we
have allowed extensions but always upon the proper application by the judge concerned
and on meritorious grounds.His failure to ask for an extension was therefore inexcusable.
The eventual rendition of the decision notwithstanding, respondent judge
should nevertheless be penalized for having incurred undue delay. Under Rule 140 of the
Rules of Court, this is a less serious charge punishable by either suspension from office
for not less than one nor more than three months, or a fine of more than P10,000 but not
exceeding P20,000. Considering the unreasonable delay of more than five years, the
maximum fine of P20,000 should be imposed on him.
Regarding the charge of bias and partiality against respondent judge, there
was no evidence to support the allegation. The standard of substantial evidence required
in administrative proceedings means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. The records are bereft of substantial evidence
to hold him administratively liable for this. At best, the allegations were mere presumptions
which did not meet the mandated standard. Respondent judge should not be held
responsible for allegations which were not proven.
The Court has never hesitated to discipline lower court judges and court
personnel found guilty of violations of the law or the Canon of Judicial Ethics andCode of
Judicial Conduct. But it has likewise never wavered in exonerating them when the charges
are baseless. Let the guilty be severely brought to book but let those who are innocent
enjoy merited exoneration to which they are entitled as a matter of justice. 22
Lastly, respondent clerk of court was directed to comment on the complaint
twice. Her refusal to controvert the charges against her was in effect an admission of the
same. In any case, the records are clear that complainant sent her two written requests for
the issuance of copies of the documents. Both demands were never heeded. In an attempt,
however, to exonerate respondent clerk of court, complainant later manifested that after
conducting a personal investigation, she allegedly "discovered" that respondent should not
be made accountable since she was "not present" when the requests were made.
We disagree. Respondent clerk of court was remiss in her duties.
Section 5 (a) and (d) of RA 6713 23 reads:
Section 5. Duties of Public Officials and Employees. — In the
performance of their duties, all public officials and employees
are under obligation to:
(a) Act promptly on letters and requests — All public officials
and employees shall, within fifteen (15) working
days from receipt thereof, respond to letters,
telegrams or other means of communications
sent by the public. The reply must contain the
action taken on the request.
xxx xxx xxx
(d) Act immediately on the public's personal transactions. —
All public officials and employees must attend
to anyone who wants to avail himself of the
services of their offices and must, at all times,
act promptly and expeditiously.
She violated the foregoing provisions. This constituted neglect of duty which
cannot be countenanced. She should be reminded of her sacred duty as an officer of the
court to attend to the public's queries. 24 Her alleged absence when the requests were
made cannot exculpate her.
Under Section 52 (C) (13) and (15),Rule IV of the Uniform Rules on
Administrative Cases in the Civil Service, respondent clerk of court's infraction is classified
as a light offense.
Section 52. Classification of Offenses.
C. The following are light offenses with
corresponding penalties:
xxx xxx xxx
13. Failure to act promptly on letters and
request within fifteen days from receipt ...
1st Offense — Reprimand
2nd Offense — Suspension 1-30 days
3rd Offense — Dismissal
xxx xxx xxx
15. Failure to attend to anyone who wants to
avail himself of the services of the office, or act promptly and
expeditiously on public transactions.
1st Offense — Reprimand
2nd Offense — Suspension 1-30 days
3rd Offense — Dismissal
This being her first offense, respondent clerk of court is subject to reprimand
with a stern warning that the commission of the same or similar act in the future will be
dealt with more severely. She is also admonished to be more diligent in complying with the
orders of the OCA. Her defiance to lawful orders does not speak well of a court employee
and a member of the bar.
WHEREFORE, respondent Judge Demosthenes Magallanes is hereby found
GUILTY of undue delay in rendering a decision and is FINED Twenty Thousand Pesos
(P20,000).Respondent clerk of court Atty. Gia Independencia Arinday is hereby
REPRIMANDED with a STERN WARNING that the commission of the same or similar
offense in the future will be dealt with more severely.
Let this order be entered in the records of Judge Magallanes and Atty.
Arinday.
SO ORDERED. cda
||| (Lim, Jr. v. Magallanes, A.M. No. RTJ-05-1932 (formerly OCA IPI No. 03-1837-RTJ)
(Resolution), [April 2, 2007], 548 PHIL 566-577)
 [G.R. No. 169079. August 28, 2007.] Applying the rationale in the aforesaid catena of cases, it is
appropriate for this Court, in the case at bar, to consider the following
circumstances, to wit:
FRANCISCO RAYOS, petitioner, vs. ATTY.
PONCIANO G. HERNANDEZ, respondent. a) respondent had spent 15 years in defending petitioner's cause
from the trial court to the Supreme Court;
b) his efforts at defending their cause were palpably real,
RESOLUTION complete, and total, with utmost devotion and zealousness;
c) respondent's advanced age;
d) this is the first time that respondent has been found
CHICO-NAZARIO, J p: administratively liable per available record; and
e) respondent's good faith in retaining what he sincerely believed
Before Us is a Motion for Reconsideration dated 16 March 2007
to be his contingent fee. As can be gleaned from the facts, petitioner and
filed by respondent Atty. Ponciano G. Hernandez, seeking a modification of
respondent entered into a contingent fee arrangement whereby the latter,
the Decision dated 12 February 2007.
as counsel, will be paid for the legal services only if he secures a judgment
The dispositive portion of the Decision states: favorable for his client. When respondent retained the amount of
P557,961.21 and P159,120.00 out of the P1,219,920.00, he did so believing
WHEREFORE the Court Resolves in good faith that it was a reasonable payment for the contingent fees which
that: he was entitled to retain. It cannot be ignored that respondent indeed
successfully defended petitioner's case in Civil Case No. SM-951.
1. Respondent is guilty of violation of the
attorney's oath and of serious We are persuaded to exhibit a degree of leniency towards the
professional misconduct and shall respondent. We, thus, maintain a more compassionate approach.
be SUSPENDED from the practice of
law for six (6) months WHEREFORE, the respondent's Motion for Reconsideration is
and WARNED that repetition of the partly GRANTED. The Decision dated 12 February 2007 is MODIFIED in
same or similar offense will be dealt that the suspension of six months is DELETED, and in lieu thereof a fine of
with more severely; P20,000.00 is IMPOSED, effective from date of receipt of herein Resolution,
with warning that repetition of the same or similar acts will be dealt with
2. Respondent is entitled to attorney's fees in the more severely. The said Decision is AFFIRMED in all other respects.
amount equivalent to THIRTY-FIVE
PERCENT (35%) of the total amount SO ORDERED.
awarded 1 to petitioner in Civil Case
||| (Rayos v. Hernandez, G.R. No. 169079, [August 28, 2007], 558 PHIL
No. SM-951; and
228-235)
3. Respondent is to return the amount of Two
Hundred Ninety Thousand One
Hundred Nine Pesos and Twenty-One
Centavos (P290,109.21), 2 which he
retained in excess of what we herein
declared as fair and reasonable
attorney's fees, plus legal interest from
date of finality of this judgment until full
payment thereof.
Let copies of this Decision be entered
in the personal record of respondent as member of
the Bar and furnished the Office of the Bar
Confidant, the IBP, and the Court Administrator for
circulation to all courts of the country.
Respondent received a copy of the Decision on 5 March 2007.
Hence, the Motion for Reconsideration was filed within the reglementary
period provided under the Rules.

Respondent begs the compassionate understanding and

magnanimity of the Honorable Court for some leniency regarding his
unintentional transgression and prays that the penalty of suspension of six
months imposed upon him be reduced to a fine, invoking his almost 15
years of patient, devoted, complete and successful professional services
rendered to petitioner; for the bad faith of the latter in dismissing him as
counsel without justifiable cause; and his good faith in retaining the money
"contingently" with the view of winning petitioner's cause.

In light of respondent's sincere plea for compassion from the

Court, we take a second look at the penalty imposed.

In several administrative cases, the Court has refrained from

imposing the actual penalties in the presence of mitigating factors. Factors
such as the respondent's length of service, the respondent's
acknowledgement of his or her infractions and feeling of remorse, family
circumstances, humanitarian and equitable considerations, respondent's
advanced age, among other things, have had varying significance in the
Court's determination of the imposable penalty.3
 [B.M. No. 139 . October 11, 1984.]
RE: ELMO S. ABAD, 1978 Successful Bar
Examinee, ATTY. PROCOPIO S. BELTRAN,
JR., President of the Philippine Trial Lawyers
Association, Inc., complainant, vs. ELMO
S. ABAD, respondent.
SYLLABUS
1. REMEDIAL LAW; ADMISSION TO THE BAR; A SUCCESSFUL BAR
EXAMINEE FOUND IN CONTEMPT OF COURT AND PENALIZED FOR
UNAUTHORIZED PRACTICE OF LAW; CASE AT BAR. — In a
comprehensive and well-documented Report the Clerk of Court concluded
that the documentary and testimonial evidence, as well as the report of the
National Bureau of Investigation, have clearly proved that
respondent Abad is still practicing law despite the decision of the Supreme
Court of March 28, 1983 which held the respondent in contempt of court
for unauthorized practice of law. The Report has found as a fact, over the
denials of the respondent under oath, that he signed Exhibits B, C, and D,
and that he made appearances in Metro Manila courts. This aspect opens
the respondent to a charge for perjury. Elmo S. Abad is ordered to pay a
fine of P2,000.00 within ten (10) days from notice, failing which he shall be
imprisoned for twenty (20) days. He is also warned that if he persists in the
unauthorized practice of law he shall be dealt with more severely. The
Court Administrator is directed to circularize all courts in the country that
the respondent has not been authorized to practice law, a copy of which to
be sent to the Integrated Bar of the Philippines. The Clerk of Court is
directed to file with the City Fiscal of Manila an appropriate complaint for
false testimony against the respondent.
2. ID.; ATTORNEYS; LAWYER HELD ACCOUNTABLE FOR
COLLABORATING IN THE PRACTICE OF LAW WITH ONE WHO IS
NOT A MEMBER OF THE BAR; CASE AT BAR. — The Report of the
Clerk of Court reveals that Atty. Ruben A. Jacobe collaborated with the
respondent as counsels for Antonio S. Maravilla one of the
accused in Criminal Case Nos. 26084, 26085 and 26086 of the Regional
Trial Court of Quezon City (Exhibit D). Atty. Jacobe is required to explain
within ten (10) days from notice why he should not be disciplined for
collaborating and associating in the practice of the law with the respondent
who is not a member of the bar.
DECISION
ABAD SANTOS, J p:
On March 28, 1983, this Court held respondent ELMO
S. ABAD in contempt of court for unauthorized practice of law and he was
fined P500.00 with subsidiary imprisonment in case he failed to pay the
fine. (121 SCRA 217.) He paid the fine.
On May 5, 1983, Atty. Procopio S. Beltran, Jr., the complainant, filed a
MOTION TO CIRCULARIZE TO ALL METRO MANILA COURTS THE
FACT THAT ELMO S. ABADIS NOT AUTHORIZED TO PRACTICE
LAW. LLphil
Asked to comment on the Motion, Mr. Abad opposed it. He denied the
allegation in the Motion that he had been practicing law even after our
Decision of March 28, 1983.
Because the Motion and the Opposition raised a question of fact, in Our
resolution of April 10, 1984, We directed "the Clerk of Court to conduct an
investigationin the premises and submit a report thereon with appropriate
recommendation."
In a comprehensive and well-documented Report which is hereby made a
part of this Resolution, the Clerk of Court concluded:
"The aforesaid documentary and testimonial
evidence, as well as the above report of the NBI,
have clearly proved that respondent Abad is still
practicing law despite the decision of this Court of
March 28, 1983."
The Clerk of Court makes the following recommendations:
"a. imposed a fine of
P2,000.00 payable within ten (10)
days from receipt of this resolution or
an imprisonment of twenty (20)
days in case of non-payment thereof,
with warning of drastic disciplinary
action of imprisonment in case of any
further practice of law after receipt of
this resolution; and
b. debarred from admission
to the Philippine Bar until such time
that the Court find him fit to become
such a member.
"It is further recommended that a circular be
issued to all courts in the Philippines through the
Office of the Court Administrator that respondent
Elmo S. Abadhas not been admitted to the
Philippine Bar and is therefore not authorized to
practice law."
We find the Report to be in order and its recommendations to be well-
taken. However, the latter are not sufficiently adequate in dealing with the
improper activities of the respondent.
The Report has found as a fact, over the denials of the respondent under
oath, that he signed Exhibits B, C, and D, and that he made
appearances in Metro Manila courts. This aspect opens the respondent to
a charge for perjury.
The Report also reveals that Atty. Ruben A. Jacobe collaborated with the
respondent as counsels for Antonio S. Maravilla one of the
accused in Criminal Case Nos. 26084, 26085 and 26086 of the Regional
Trial Court of Quezon City. (Exhibit D.) Atty. Jacobe should be called to
account for his association with the respondent. cdphil
WHEREFORE, Elmo S. Abad is hereby ordered to pay a fine of P2,000.00
within ten (10) days from notice, failing which he shall be imprisoned for
twenty (2) days. he is also warned that if he persists in the unauthorized
practice of law he shall be dealt with more severely.
The Court Administrator is directed to circularize all courts in the country
that the respondent has not been authorized to practice law. A copy of the
circular should be sent to the Integrated Bar of the Philippines.
The Clerk of Court is directed to file with the City Fiscal of Manila an
appropriate complaint for false testimony against the respondent.
Finally, Atty. Ruben A. Jacobe is required to explain within ten (10) days
from notice why he should not be disciplined for collaborating and
associating in the practice of the law with the respondent who is not a
member of the bar.
SO ORDERED.
||| (In re Abad v. Abad, B.M. No. 139, [October 11, 1984], 217 PHIL 431-
441)
[A.C. No. 5691. March 13, 2009.] AVITO YU, complainant, vs. ATTY. CESAR
R. TAJANLANGIT, respondent.
RESOLUTION
TINGA, J p:
This is an administrative complaint for disbarment filed by
complainant Avito Yu against respondent Atty. Cesar R. Tajanlangit for
violation of Rules 18.03 and 16.01 of the Code of Professional Responsibility
(the Code). 1
Complainant alleged that he had engaged the services of
respondent as defense counsel in Criminal Case No. 96-150393 that resulted
in a judgment of conviction against him and a sentence of thirty (30) years of
imprisonment. 2 After the motion for reconsideration and/or new trial was
denied by the trial court, instead of filing an appeal, respondent filed a petition
for certiorari 3 under Rule 65 of the 1997 Rules of Civil Procedure imputing
grave abuse of discretion on the trial court's part in denying the motion. This
petition was subsequently denied by the Court of Appeals. Due to respondent's
alleged error in the choice of remedy, the period to appeal lapsed and
complainant was made to suffer imprisonment resulting from his conviction. In
depriving complainant of his right to an appeal, respondent allegedly violated
Rule 18.03 4 of the Code. Moreover, complainant averred that respondent had
violated Rule 16.01 5 of the Code for failing to return the bailbond to him in the
amount P195,000.00 after having withdrawn the same. 6 Further, complainant
stated that respondent had failed to pay the telephone bill he had incurred
during his stay at complainant's house. 7 ISADET
Complainant prayed that respondent be disbarred and be ordered
to pay him the amount of P211,106.97 plus interest. 8
For his part, respondent clarified that his legal services were
engaged only after the denial of the motion for reconsideration and/or new trial
and the supplement thereto. His legal services were limited to filing the petition
for certiorari. Complainant, at the time, had already been convicted by the trial
court. Respondent also explained that he had discussed with complainant the
merits of filing a petition for certiorari and that complainant gave his conformity
to the filing of the same. 9
Moreover, respondent averred that complainant had authorized
and instructed him to withdraw the cash bond in order to apply the amount as
payment for legal fees and reimbursement for expenses. With regard to the
unpaid telephone bill, respondent alleged that he was not presented a copy of
the billing statement despite his previous requests. He also contended that he
had been allowed to use the telephone to facilitate coordination between him
and complainant as he was then residing in Bacolod City. 10
The Court referred the matter to the Integrated Bar of the
Philippines (IBP) by Resolution of 16 July 2003. 11 AHDaET
In his Report and Recommendation dated 2 December 2004, Atty.
Leland R. Villadolid, Jr., IBP Commissioner, made the following findings:
On the charge of violating Rule 18.03
xxx xxx xxx
. . . Considering that Respondent was only hired after the
denial of the Motion for Reconsideration and/or New
Trial, Complainant is silent whether an appeal was still
available to him at that time. Complainant failed to state
the material dates when his first lawyer, Atty. Lacsamana
received the Decision dated 6 February 1998, when she
filed the Motion for Reconsideration and/or New Trial,
and when his second lawyer, Atty. Espiritu, received the
Order dated 23 April 1999.
While all of the lawyers who protected Complainant's
cause were of the view that there was a need to present
additional evidence and/or hold trial anew, it is obvious
that Complainant singled out Respondent and blamed
him solely for his conviction.
At any rate, Respondent exhaustively explained his legal
basis for elevating the Order dated 23 April 1999 to the
Court of Appeals by filing a Petition
forCertiorari. Considering that the Order dated 23 April
1999, which denied the Motion for Reconsideration
and/or New Trial, Respondent's argument that the said
order is not the proper subject of appeal is tenable. This
is supported by Section 1(a), Rule 43 and Section 9, Rule
37 of the Rules of Court. For another, a perusal of
grounds Respondent raised in the Petition is acceptable
grounds that warrant a new trial. At least two of the
grounds Respondent raised were: the negligence of
former counsel in failing to present evidence and new
discovered evidence. It is well-settled that these grounds
usually warrant the re-opening of evidence. Thus, it
cannot be said that Respondent acted negligently in
advocating Complainant's cause. CIcEHS
xxx xxx xxx
On the charge of violating Rule 16.01
. . . In the absence of evidence controverting
Respondent's claim that a verbal agreement exists or an
amount different from what was agreed upon, it is
believable that indeed, Complainant knew of the fee
arrangement entered into with the Respondent, through
Ms. Javier, who acted in his behalf. It is also indisputable
that Complainant executed a Special Power of Attorney
dated 23 March 1999 authorizing the Respondent to
withdraw the cash bonds in several criminal cases on his
behalf. Thus, it was not all improper for Respondent to
withdraw the same.
xxx xxx xxx
While Respondent is entitled to be paid for the legal
services he rendered and expenses he incurred, it is still
Respondent's obligation to render an accounting of the
money received.
xxx xxx xxx
Further, Respondent did not substantiate his claim that
he had paid for or tendered payment for the unpaid
telephone bill. While he contends that he previously
asked for the billing statement, it was allegedly not
shown to him. However, there is no showing that from
the time the instant disbarment complaint was filed,
which in itself constitutes the demand for its payment,
any payment (was) made by the Respondent. 12
Accordingly, the IBP Commissioner recommended that
respondent be directed to: (1) render an accounting of the money he had
received and to itemize the nature of the legal services he had rendered,
inclusive of the expenses he had incurred in compliance with Rule 16.01 of the
Code; and (2) to pay the amount of the unpaid telephone bill. It was further
recommended that respondent be sternly warned that a similar offense in the
future would be dealt with more severely. 13 aSAHCE
On 12 March 2005, the IBP Board of Governors passed Resolution
No. XVI-2005-83 adopting and approving the Report and Recommendation of
the IBP Commissioner. 14
The Court is in full accord with the findings and recommendation
of the IBP.
Records show that respondent did not serve as complainant's
lawyer at the inception of or during the trial of Criminal Case No. 96-150393
which resulted to the conviction of the latter. In fact, respondent was only
engaged as counsel after the withdrawal of appearance of complainant's
lawyers and denial of the Motion for Reconsideration and/or New Trial and the
supplement thereto. At that time, complainant had already been incarcerated.
Significantly, complainant made no mention of the availability of the remedy of
appeal at the time of respondent's employment.
More importantly, the Court finds adequate respondent's
justification for filing the petition for certiorari instead of an appeal. Indeed, there
is no showing that respondent was negligent in handling the legal matter
entrusted to him by complainant. cDCSTA
The Court also agrees with the IBP that it was not at all improper
for respondent to have withdrawn the cash bonds as there was evidence
showing that complainant and respondent had entered into a special fee
arrangement. But, however justified respondent was in applying the cash
bonds to the payment of his services and reimbursement of the expenses he
had incurred, the Court agrees with the IBP that he is not excused from
rendering an accounting of the same. In Garcia v. Atty. Manuel, 15 the Court
held that "(t)he highly fiduciary and confidential relation of attorney and client
requires that the lawyer should promptly account for all the funds received from,
or held by him for, the client." 16 The fact that a lawyer has a lien for his
attorney's fees on the money in his hands collected for his client does not
relieve him from the obligation to make a prompt accounting. 17
Finally, the Court concurs with the IBP that while it is true that
respondent was not presented a copy of the unpaid telephone bill, the instant
complaint itself constitutes the demand for its payment. Considering that there
is no manifestation to the effect that the same has been paid, respondent
should accordingly be required to settle it.
WHEREFORE, in view of the foregoing, respondent Atty. Cesar
R. Tajanlangit is ordered to render, within thirty (30) days from notice of this
Resolution, an accounting of all monies he received from complainant and to
itemize the nature of the legal services he had rendered, inclusive of the
expenses he had incurred, in compliance with Rule 16.01 of the Code of
Professional Responsibility.
Respondent is further ADMONISHED that commission of the
same or similar act in the future will be dealt with more severely. SIacTE
SO ORDERED.
||| (Yu v. Tajanlangit, A.C. No. 5691 (Resolution), [March 13, 2009], 600 PHIL 49-
55)
[A.C. No. 2797. October 4, 2002.] ROSAURA P. CORDON, complainant, vs.
JESUS BALICANTA, respondent.
Jimeno Jalandoni & Cope Law Offices for complainant.
SYNOPSIS
A complaint for disbarment was filed by herein complainant against respondent
Jesus Balicanta, complainant's legal counsel in the settlement of the estate of her
deceased husband. Among others, it was alleged that the respondent enticed
complainant and her daughter to organize a corporation; that respondent, through
deceit and machinations, convinced complainant and her daughter to assign their
real properties to the corporation and to execute a voting trust agreement; that the
respondent single-handedly ran the affairs of the corporation in his capacity as
Chairman of the Board, President, General Manager and Treasurer; that the
respondent succeeded in making complainant sign a special power of attorney to
sell and mortgage some of the parcels of land she inherited from her deceased
husband; that using spurious board resolutions, respondent contracted an LBP
loan, mortgaged the properties of the corporation, sold to another the right of
redemption over the foreclosed properties and sold the complainant's ancestral
home; that the respondent failed to account for the proceeds of the loan and the
sale; that the respondent failed to render an accounting of the records and
revenues of the corporation. On his part, respondent denied the allegations against
him.
The Code of Professional Responsibility mandates upon each lawyer, as his duty to
society, the obligation to obey the laws of the land and promote respect for law and
legal processes. Specifically, he is forbidden to engage in unlawful, dishonest,
immoral; or deceitful conduct. In the case at bar, the Court found that the
respondent committed grave and serious misconduct that casts dishonor on the
legal profession. His misdemeanors revealed a deceitful scheme to use the
corporation as a means to convert for his own personal benefit properties left to him
in trust by complainant and her daughter. Not even his deviousness could cover up
the wrongdoings he committed. The documents he thought could exculpate him
were the very same documents that revealed his immoral and shameless ways.
These documents were extremely revealing in that they unmasked a man who
knew the law and abused it for his personal gain without any qualms of conscience.
They painted an intricate web of lies, deceit and opportunism beneath a carefully
crafted smokescreen of corporate maneuvers. Consequently, the Court held that
the gravity of respondent's offenses deserve the severe penalty of disbarment.
SYLLABUS
1. LEGAL ETHICS; ATTORNEYS; GRAVE AND SERIOUS MISCONDUCT;
COMMITTED IN CASE AT BAR. — After a thorough review of the records, we find
that respondent committed grave and serious misconduct that casts dishonor on the
legal profession. His misdemeanors reveal a deceitful scheme to use the
corporation as a means to convert for his own personal benefit properties left to him
in trust by complainant and her daughter. Not even his deviousness could cover up
the wrongdoings he committed. The documents he thought could exculpate him
were the very same documents that revealed his immoral and shameless ways.
These documents were extremely revealing in that they unmasked a man who
knew the law and abused it for his personal gain without any qualms of conscience.
They painted an intricate web of lies, deceit and opportunism beneath a carefully
crafted smokescreen of corporate maneuvers.
2. ID.; ID.; CODE OF PROFESSIONAL RESPONSIBILITY; PROHIBITION TO
ENGAGE IN UNLAWFUL, DISHONEST, IMMORAL OR DECEITFUL CONDUCT.
— The Code of Professional Responsibility mandates upon each lawyer, as his duty
to society, the obligation to obey the laws of the land and promote respect for law
and legal processes. Specifically, he is forbidden to engage in unlawful, dishonest,
immoral or deceitful conduct. If the practice of law is to remain an honorable
profession and attain its basic ideal, those enrolled in its ranks should not only
master its tenets and principles but should also, in their lives, accord continuing
fidelity to them. Thus, the requirement of good moral character is of much greater
import, as far as the general public is concerned, than the possession of legal
learning.
3. ID.; ID.; LAWYERS ARE EXPECTED TO ABIDE BY THE TENETS OF
MORALITY, FROM THEIR ADMISSION TO THE BAR AND THROUGHOUT THEIR
LEGAL CAREER. — Lawyers are expected to abide by the tenets of morality, not
only upon admission to the Bar but also throughout their legal career, in order to
maintain one's good standing in that exclusive and honored fraternity. Good moral
character is more than just the absence of bad character. Such character expresses
itself in the will to do the unpleasant thing if it is right and the resolve not to do the
pleasant thing if it is wrong. This must be so because "vast interests are committed
to his care; he is the recipient of unbounded trust and confidence; he deals with his
client's property, reputation, his life, his all."
4. ID.; ID.; FAILURE TO PROMPTLY ACCOUNT FOR MONEY OR PROPERTY
RECEIVED BY THEM ON BEHALF OF THEIR CLIENTS CONSTITUTES
PROFESSIONAL MISCONDUCT. — Indeed, the words of former Presiding Justice
of the Court of Appeals Pompeyo Diaz cannot find a more relevant application than
in this case: "There are men in any society who are so self-serving that they try to
make law serve their selfish ends. In this group of men, the most dangerous is the
man of the law who has no conscience. He has, in the arsenal of his knowledge, the
very tools by which he can poison and disrupt society and bring it to an ignoble
end." Good moral standing is manifested in the duty of the lawyer "to hold in trust all
moneys and properties of his client that may come into his possession." He is
bound "to account for all money or property collected or received for or from the
client." The relation between an attorney and his client is highly fiduciary in nature.
Thus, lawyers are bound to promptly account for money or property received by
them on behalf of their clients and failure to do so constitutes professional
misconduct. SDHITE
5. ID.; ID.; RESPONDENT CANNOT USE THE CORPORATE VEIL TO DEFEAT
HIS FIDUCIARY OBLIGATION TO HIS CLIENT. — This Court holds that
respondent cannot invoke the separate personality of the corporation to absolve
him from exercising these duties over the properties turned over to him by
complainant. He blatantly used the corporate veil to defeat his fiduciary obligation to
his client, the complainant. Toleration of such fraudulent conduct was never the
reason for the creation of said corporate fiction. The massive fraud perpetrated by
respondent on the complainant leaves us no choice but to set aside the veil of
corporate entity. For purposes of this action therefore, the properties registered in
the name of the corporation should still be considered as properties of complainant
and her daughter. The respondent merely held them in trust for complainant (now
an ailing 83-year-old) and her daughter. The properties conveyed fraudulently
and/or without the requisite authority should be deemed as never to have been
transferred, sold or mortgaged at all. Respondent shall be liable, in his personal
capacity, to third parties who may have contracted with him in good faith.
6. ID.; ID.; PENALTY FOR DISHONEST ACTS. — This Court believes that the
gravity of respondent's offenses cannot be adequately matched by mere
suspension as recommended by the IBP. Instead, his wrongdoings deserve the
severe penalty of disbarment, without prejudice to his criminal and civil liabilities for
his dishonest acts.
RESOLUTION
PER CURIAM, p:
On August 21, 1985, herein complainant Rosaura Cordon filed with this Court a
complaint for disbarment, docketed as Administrative Case No. 2797, against Atty.
Jesus Balicanta. After respondent's comment to the complaint and complainant's
reply thereto, this Court, on March 29, 1995 referred the matter to the Integrated
Bar of the Philippines (IBP, for brevity) for investigation, report and recommendation
within 90 days from notice. Commissioner George Briones of the IBP Commission
on Bar Discipline was initially tasked to investigate the case. Commissioner Briones
was later on replaced by Commissioner Renato Cunanan. Complainant filed a
supplemental complaint which was duly admitted and, as agreed upon, the parties
filed their respective position papers.
Based on her complaint, supplemental complaint, reply and position paper, the
complainant alleged the following facts:
When her husband Felixberto C. Jaldon died, herein complainant
Rosaura Cordon and her daughter Rosemarie inherited the properties left by the
said decedent. All in all, complainant and her daughter inherited 21 parcels of land
located in Zamboanga City. The lawyer who helped her settle the estate of her late
husband was respondent Jesus Balicanta.
Sometime in the early part of 1981, respondent enticed complainant and her
daughter to organize a corporation that would develop the said real properties into a
high-scale commercial complex with a beautiful penthouse for complainant. Relying
on these apparently sincere proposals, complainant and her daughter assigned 19
parcels of land to Rosaura Enterprises, Incorporated, a newly-formed and duly
registered corporation in which they assumed majority ownership. The subject
parcels of land were then registered in the name of the corporation.
Thereafter, respondent single-handedly ran the affairs of the corporation in his
capacity as Chairman of the Board, President, General Manager and Treasurer.
The respondent also made complainant sign a document which turned out to be a
voting trust agreement. Respondent likewise succeeded in making complainant sign
a special power of attorney to sell and mortgage some of the parcels of land she
inherited from her deceased husband. She later discovered that respondent
transferred the titles of the properties to a certain Tion Suy Ong who became the
new registered owner thereof. Respondent never accounted for the proceeds of
said transfers.
In 1981, respondent, using a spurious board resolution, contracted a loan from the
Land Bank of the Philippines (LBP, for brevity) in the amount of Two Million Two
Hundred Twenty Pesos (P2,220,000) using as collateral 9 of the real properties that
the complainant and her daughter contributed to the corporation. The respondent
ostensibly intended to use the money to construct the Baliwasan Commercial
Center (BCC, for brevity). Complainant later on found out that the structure was
made of poor materials such as sawali, coco lumber and bamboo which could not
have cost the corporation anything close to the amount of the loan secured.
For four years from the time the debt was contracted, respondent failed to pay even
a single installment. As a result, the LBP, in a letter dated May 22, 1985, informed
respondent that the past due amortizations and interest had already accumulated to
Seven Hundred Twenty-nine Thousand Five Hundred Three Pesos and Twenty-five
Centavos (P729,508.25). The LBP made a demand on respondent for payment for
the tenth time. Meanwhile, when the BCC commenced its operations, respondent
started to earn revenues from the rentals of BCC's tenants. On October 28, 1987,
the LBP foreclosed on the 9 mortgaged properties due to non-payment of the loan.
Respondent did not exert any effort to redeem the foreclosed properties. Worse, he
sold the corporation's right to redeem the mortgaged properties to a certain Hadji
Mahmud Jammang through a fake board resolution dated January 14, 1989 which
clothed himself with the authority to do so. Complainant and her daughter, the
majority stockholders, were never informed of the alleged meeting held on that
date. Again, respondent never accounted for the proceeds of the sale of the right to
redeem. Respondent also sold to Jammang a parcel of land belonging to
complainant and her daughter which was contiguous to the foreclosed properties
and evidenced by Transfer Certificate of Title No. 62807. He never accounted for
the proceeds of the sale.
Sometime in 1983, complainant's daughter, Rosemarie, discovered that their
ancestral home had been demolished and that her mother, herein complainant, was
being detained in a small nipa shack in a place called Culianan. Through the help of
Atty. Linda Lim, Rosemarie was able to locate her mother. Rosemarie later learned
that respondent took complainant away from her house on the pretext that said
ancestral home was going to be remodeled and painted. But respondent
demolished the ancestral home and sold the lot to Tion Suy Ong, using another
spurious board resolution designated as Board Resolution No. 1, series of 1992.
The resolution contained the minutes of an alleged organizational meeting of the
directors of the corporation and was signed by Alexander Wee, Angel Fernando,
Erwin Fernando and Gabriel Solivar. Complainant and her daughter did not know
how these persons became stockholders and directors of the corporation.
Respondent again did not account for the proceeds of the sale.
Complainant and her daughter made several demands on respondent for the
delivery of the real properties they allegedly assigned to the corporation, for an
accounting of the proceeds of the LBP loan and as well as the properties sold, and
for the rentals earned by BCC. But the demands remained unheeded. Hence,
complainant and her daughter, in a letter dated June 4, 1985, terminated the
services of respondent as their lawyer and repeated their demands for accounting
and turn-over of the corporate funds, and the return of the 19 titles that respondent
transferred to the corporation. They also threatened him with legal action in a letter
dated August 3, 1985.
Soon after, complainant found out from the Securities and Exchange Commission
(SEC, for brevity) that Rosaura Enterprises, Inc., due to respondent's refusal and
neglect, failed to submit the corporation's annual financial statements for 1981,
1982 and 1983; SEC General Information Sheets for 1982, 1983 and 1984; Minutes
of Annual Meetings for 1982, 1983 and 1984; and Minutes of Annual Meetings of
Directors for 1982, 1983 and 1984.
Complainant also discovered that respondent collected rental payments from the
tenants of BCC and issued handwritten receipts which he signed, not as an officer
of the corporation but as the attorney-at-law of complainant. Respondent also used
the tennis court of BCC to dry his palay and did not keep the buildings in a
satisfactory state, so much so that the divisions were losing plywood and other
materials to thieves.
Complainant likewise accused respondent of circulating rumors among her friends
and relatives that she had become insane to prevent them from believing whatever
complainant said. According to complainant, respondent proposed that she legally
separate from her present husband so that the latter would not inherit from her and
that respondent be adopted as her son.
For his defense, respondent, in his comment and position paper, denied employing
deceit and machination in convincing complainant and her daughter to assign their
real properties to the corporation; that they freely and voluntary executed the deeds
of assignment and the voting trust agreement that they signed; that he did not
single-handedly manage the corporation as evidenced by certifications of the
officers and directors of the corporation; that he did not use spurious board
resolutions authorizing him to contract a loan or sell the properties assigned by the
complainant and her daughter; that complainant and her daughter should be the
ones who should render an accounting of the records and revenues inasmuch as,
since 1984 up to the present, the part-time corporate book-keeper, with the
connivance of the complainant and her daughter, had custody of the corporate
records; that complainant and her daughter sabotaged the operation of BCC when
they illegally took control of it in 1986; that he never pocketed any of the proceeds
of the properties contributed by the complainant and her daughter; that the
demolition of the ancestral home followed legal procedures; that complainant was
never detained in Culianan but she freely and voluntarily lived with the family of
PO3 Joel Constantino as evidenced by complainant's own letter denying she was
kidnapped; and that the instant disbarment case should be dismissed for being
premature, considering the pendency of cases before the SEC and the Regional
Trial Court of Zamboanga involving him and complainant.
Based on the pleadings and position papers submitted by the parties,
Commissioner Renato Cunanan, in his report 1 dated July 1, 1999, recommended
respondent's disbarment based on the following findings:
"A. The complainant, Rosaura Jaldon-Cordon and her
daughter, Rosemarie were stockholders of a
corporation, together with respondent, named Rosaura
Enterprises, Inc.
"Per the Articles of Incorporation marked as Annex 'A'
of Complainant's Position Paper, complainant's
subscription consists of 55% of the outstanding capital
stock while her daughter's consists of 18%, giving them
a total of 73%. Respondent's holdings consist of 24%
while three other incorporators, Rosauro L. Alvarez,
Vicente T. Mañalac and Darhan S. Graciano each held
1% of the capital stock of the corporation.
"B. On April 5, 1981, complainant and her daughter
Rosemarie Jaldon executed two Deeds of Transfer and
Assignment conveying and transferring to the
corporation 19 parcels of land in exchange for shares of
stock in the corporation.
"xxx xxx xxx
"C. Both Deeds of Assignment particularly page 3
thereof indicate that respondent accepted said
assignment of properties and titles in behalf of the
corporation as Treasurer. The deeds were signed on
April 5, 1981.
"xxx xxx xxx
"Together, therefore, complainant and her daughter
owned 1,711 shares of the 1,750 shares comprising the
authorized capital stock of the corporation of 97%
thereof.
"No increase in capitalization was applied for by the
corporation.
"F. Respondent claims in his Comment, his Answer and
his Position Paper that on April 4, 1981 he was elected
as Chairman and Director and on April 5, 1981 he was
elected President of the corporation. Respondent's own
Annexes marked as 'G' and 'G-1' of his Comment show
that on April 4, 1981 he was not only elected as
Chairman and Director as he claims but as 'Director,
Board Chairman and President.' The purported minutes
was only signed by respondent and an acting Secretary
by the name of Vicente Mañalac.
"Said Annex does not show who was elected Treasurer.
"Respondent's Annex 'H' and 'H-1' shows that in the
alleged organizational meeting of the directors on April
5, 1981 a certain Farnacio Bucoy was elected
Treasurer. Bucoy's name does not appear as an
incorporator nor a stockholder anywhere in the
documents submitted.
"The purported minutes of the organizational meeting of
the directors was signed only by
respondent Balicanta and a Secretary named Verisimo
Martin.
"G. Since respondent was elected as Director,
Chairman and President on April 4, 1981 as
respondent's own Annexes 'G' to 'G-1' would show,
then complainant's claim that respondent was likewise
acting as Treasurer of two corporations bear truth and
credence as respondent signed and accepted the titles
to 19 parcels of land ceded by the complainant and her
daughter, as Treasurer on April 5, 1981 after he was
already purportedly elected as Chairman, President and
Director.
"H. Respondent misleads the Commission into believing
that all the directors signed the minutes marked as
Exhibit 'H' to 'H-1' by stating that the same was 'duly
signed by all the Board of Directors' when the document
itself shows that only he and one Verisimo Martin
signed the same.
"He also claims that 'all the stockholders signed' the
minutes of organizational meeting marked as Annexes
'G' and 'G-1' of his Comment yet the same shows that
only the acting Chairman and acting Secretary signed.
"I. Respondent claims that the Board or its
representative was authorized by the stockholders
comprising 2/3 of the outstanding capital stock, as
required by law, to mortgage the parcels of land
belonging to the corporation, which were all assigned to
the corporation by complainant and her daughter, by
virtue of Annex 'I' and 'I-1': attached to his Comment.
"The subject attachment however reveals that only the
following persons signed their conformity to the said
resolution: respondent Balicanta who owned 109
shares, Vicente Mañalac (1 share), Daihan Graciano (1
share).
"Complainants who collectively held a total
of 1,711 shares out of the 1,750 outstanding capital
stock of the corporation were not represented in the
purported stockholders' meeting authorizing the
mortgage of the subject properties.
"The 2/3 vote required by law was therefore not
complied with yet respondent proceeded to mortgage
the subject 9 parcels of land by the corporation.
"J. Respondent further relies on Annex 'J' of his
Comment, purportedly the minutes of a special meeting
of the Board of Directors authorizing him to obtain a
loan and mortgage the properties of the corporation
dated August 29, 1981. This claim is baseless. The
required ratification of 2/3 by the stockholders of
records was not met. Again, respondent attempts to
mislead the Commission and Court.
"K. Further, the constitution of the Board is dubious.
The alleged minutes of the organizational meeting of
the stockholders electing the members of the Board,
have not been duly signed by the stockholders as
shown in respondent's annex 'G' which was purportedly
the organizational meeting of the stockholders.
"L. Also, Annex 'J' of respondent's Comment which
purportedly authorized him to obtain a loan and to
mortgage the 9 parcels of land was only signed by
himself and a secretary.
"M. In said Annex 'J' of respondent's Comment he
stated that complainant Rosaura Cordon was on leave
by virtue of a voting trust agreement allegedly executed
by complainant 'in his favor covering all her shares of
stock.' The claim is baseless. The voting trust referred
to by respondent (annex 'D' of his Comment), even if it
were assumed to be valid, covered only 266 shares of
complainants yet she owned a total of 1,039 shares
after she and her daughter ceded in favor of the
corporation 19 parcels of land.
"Being a former lawyer to complainant, respondent
should have ensured that her interest was safeguarded.
Yet, complainant was apparently and deliberately left
our (sic) on the pretext that, she had executed a voting
trust agreement in favor of respondent.
"It is suspicious that complainant was made to sign a
voting trust agreement on 21 August 1981 and
immediately thereafter, the resolutions authorizing
respondent to obtain a loan and to mortgage the 9
parcels of land were passed and approved.
"N. It is also highly irregular for respondent who is a
lawyer, to allow a situation to happen where, with the
exclusion of complainant as director the result was that
there remained only 4 members of the Board,.
"O. Respondent's own pleadings submitted to the
Commission contradict each other.
"1. For instance,
while in his Comment respondent
DENIES that he employed deceit
and machination in convincing the
complainant and her daughter to
sign the articles of incorporation
of Rosaura Enterprises and in
ceding to the corporation 19
parcels of land in Zamboanga
City, because 'they freely,
intelligently and voluntarily signed'
the same, yet, in his Position
Paper, respondent took another
stance.
"In paragraphs 1.1
and 1.2 of his Position Paper
which was submitted 12 years
later, respondent claimed that 'it
was actually the idea of Atty.
Rosaura L. Alvarez' that a
corporation be put up to
incorporate the estate of the late
Felixberto D. Jaldon.
"2. Likewise,
respondent claimed that
complainant and her daughter
were not directors, hence they
were not notified of meetings, in
paragraph 2-6 (c) of his Comment
he blamed the other stockholders
and directors for the corporation's
inability to comply with the Land
Bank's demands saying that they
'have consistently failed since
1982 to convene (1.) for the
annual stockholders' meetings
and (i.i) for the monthly board
meeting.'
"His own pleadings
claim that he had been the
Chairman/President since 1981 to
the present. If (sic) so, it was his
duty to convene the stockholders
and the directors for meetings.
"Respondent
appeared able to convene the
stockholders and directors when
he needed to make a loan of P2.2
million; when he sold the
corporation's right of redemption
over the foreclosed properties of
the corporation to Jammang,
when he sold one parcel of land
covered by TCT 62,807 to
Jammang in addition to the 9
parcels of land which were
foreclosed, and when he sold the
complainant's ancestral home
covered by TCT No. 72,004.
"It is thus strange
why respondent claims that the
corporation could not do anything
to save the corporation's
properties from being
foreclosed because the
stockholders and directors did not
convene.
"This assertion of
respondent is clearly evident of
dishonest, deceitful and immoral
conduct especially because, in all
his acts constituting conveyances
of corporate property, respondent
used minutes of stockholders' and
directors' meetings signed only by
him and a secretary or signed by
him and persons who were not
incorporators much less
stockholders.
"It is worthy of note
that in respondent's Exhibits 15,
16, 17 and 18 of his position
paper, there were 7 new
stockholders and complainant
appeared to have only 266 shares
to her name while her daughter
Rosemarie had no shares at all.
Respondent did not present any
proof of conveyance of shares by
complainant and her daughter.
"It is further worth
noting that complainant's voting
trust (annex 'D' of respondent's
Comment) where she allegedly
entrusted 266 shares to
respondent on August 21, 1981
had only a validity of 5 years.
Thus, she should have had her
entire holdings of 1,283 shares
back in her name in August 1986.
"Respondent's
purported minutes of
stockholders' meeting (Exhs. '15'
and '17') do not reflect this.
"There was no
explanation whatsoever from
respondent on how complainant
and her daughter lost their 97%
control holding in the corporation.
"3. As a further
contradiction in respondent's
pleadings, we note that in
paragraph 2.7.C of his Comment
he said that 'only recently, this
year, 1985, the complainant and
her aforenamed daughter
examined said voluminous
supporting receipts/documents
which had previously been
examined by the Land Bank for
loan releases, during which
occasion respondent suggested
to them that the corporation will
have to hire a full-time
bookkeeper to put in order said
voluminous supporting
receipts/documents, to which they
adversely reacted due to lack of
corporate money to pay for said
bookkeeper.' But in respondent's
Position Paper par. 6.3 he stated
that:
'Anyway, it is not the
respondent but rather the
complainant who should render a
detailed accounting to the
corporation of the corporate
records as well as corporate
revenues/income precisely
because since 1994 to the
present:
'(a). The corporate
part-time bookkeeper Edilberto
Benedicto, with the indispensable
connivance and instigation of the
complainant and her daughter,
among others, has custody of the
corporate records, . . .'
"4. In other
contradictory stance, respondent
claims in par. 7.3 of his position
paper that 'complainant and her
daughter sabotaged the BCC
operations of the corporation by
illegally taking over actual control
and supervision thereof sometime
in 1986, . . .'
"Yet respondent's
own exhibits in his position paper
particularly Exhibit 15 and 16
where the subject of the
foreclosed properties of the
corporation comprising the
Baliwasan Commercial Center
(BCC) was taken up, complainant
and her daughter were not even
present nor were they the subject
of the discussion, belying
respondent's claim that the
complainant and her daughter
illegally took actual control of
BCC.
"5. On the matter of
the receipts issued by respondent
evidencing payment to him of
rentals by lessees of the
corporation, attached to the
complaint as Annexes 'H' to 'H-
17', respondent claims that the
receipts are temporary in nature
and that subsequently regular
corporate receipts were issued.
On their face however the
receipts clearly appear to be
official receipts, printed and
numbered duly signed by the
respondent bearing his printed
name.
"It is difficult to
believe that a lawyer of
respondent' stature would issue
official receipts to lessees if he
only meant to issue temporary
ones.
"6. With regard to
respondent's claim that the
complainant consented to the sale
of her ancestral home, covered by
TCT No. T-72,004 to one Tion
Suy Ong for which he attached as
Exhibit 22 to his Position Paper
the minutes of an annual meeting
of the stockholders, it behooves
this Commission why
complainant's signature had to be
accompanied by her thumb mark.
Furthermore, complainant's
signature appears unstable and
shaky. This Office is thus
persuaded to believe
complainant's allegation in
paragraph 3b of her position
paper that since September 1992
up to March 1993 she was being
detained by one PO# (sic) Joel
Constantino and his wife under
instructions from
respondent Balicanta.
"This conclusion is
supported by a letter from
respondent dated March 1993,
Annex 'H' of complainant's
position paper, where respondent
ordered Police Officer
Constantino 'to allow Atty. Linda
Lim and Rosemarie Jaldon to talk
to Tita Rosing.'
"The complainant's
thumb mark together with her
visibly unstable shaky signature
lends credence to her claim that
she was detained in the far flung
barrio of Culianan under
instructions of respondent while
her ancestral home was
demolished and the lot sold to
one Tion Suy Ong.
"It appears that
respondent felt compelled to over-
ensure complainant's consent by
getting her to affix her thumb
mark in addition to her signature.
 "7. Respondent
likewise denies that he also acted
as Corporate Secretary in addition
to being the Chairman, President
and Treasurer of the corporation.
Yet, respondent submitted to this
commission documents which are
supported to be in the possession
of the Corporate Secretary such
as the stock and transfer book
and minutes of meetings.
"The foregoing findings of this Commission are virtual
smoking guns that prove on no uncertain terms that
respondent, who was the legal counsel of complainant
in the latter part of the settlement of the estate of her
deceased husband, committed unlawful, immoral and
deceitful conduct proscribed by Rule 1.01 of the code of
professional responsibility.
"Likewise, respondent clearly committed a violation of
Canon 15 of the same code which provides that 'A
lawyer should observe candor fairness and loyalty in all
his dealings and transactions with his client.'
"Respondent's acts gravely diminish the public's respect
for the integrity of the profession of law for which this
Commission recommends that he be meted the penalty
of disbarment.
"The pendency of the cases at the SEC and the
Regional Trial Court of Zamboanga filed by complainant
against respondent does not preclude a determination
of respondent's culpability as a lawyer.
"This Commission cannot further delay the resolution of
this complaint filed in 1985 by complainant, and old
widow who deserves to find hope and recover her
confidence in the judicial system.
"The findings of this office, predominantly based on
documents adduced by both parties lead to only one
rather unpalatable conclusion. That respondent Atty.
Jesus F. Balicanta, in his professional relations with
herein complainant did in fact employ unlawful,
dishonest, and immoral conduct proscribed in no
uncertain terms by Rule 1.01 of the Code of
Professional Responsibility. In addition, respondent's
actions clearly violated Canon 15 to 16 of the same
Code.
"It is therefore our unpleasant duty to recommend that
respondent, having committed acts in violation of the
Canons of Professional Responsibility, thereby causing
a great disservice to the profession, be meted the
ultimate sanction of disbarment." 2
On September 30, 1999, while Commissioner Cunanan's recommendation for
respondent's disbarment was pending review before Executive Vice-President and
Northern Luzon Governor Teofilo Pilando, respondent filed a motion requesting "for
a full-blown investigation and for invalidation of the entire proceedings and/or
remedial action under Section 11, Rule 139-B, Revised Rules of Court," alleging
that he had evidence that Commissioner Cunanan's report was drafted by the
lawyers of complainant, Attys. Antonio Cope and Rita Linda Jimeno. He presented
two unsigned anonymous letters allegedly coming from a disgruntled employee of
Attys. Cope and Jimeno. He claimed to have received these letters in his mailbox. 3
Respondent's motion alleging that Attys. Antonio Cope and Rita Linda Jimeno
drafted Commissioner Cunanan's report was accompanied by a complaint praying
for the disbarment of said lawyers including Commissioner Cunanan. The complaint
was docketed as CBD Case No. 99-658. After Attys. Cope and Jimeno and
Commissioner Cunanan filed their answers, a hearing was conducted by the
Investigating Committee of the IBP Board of Governors.
On May 26, 2001, the IBP Board of Governors issued a resolution 4 dismissing for
lack of merit the complaint for disbarment against Attys. Cope and Jimeno and
Commissioner Cunanan. And in Adm. Case No. 2797, the Board adopted and
approved the report and recommendation of Commissioner Cunanan, and meted
against herein respondent Balicanta the penalty of suspension from the practice of
law for 5 years "for commission of acts of misconduct and disloyalty by taking
undue and unfair advantage of his legal knowledge as a lawyer to gain material
benefit for himself at the expense of complainant Rosaura P. Jaldon-Cordon and
caused serious damage to the complainant." 5
To support its decision, the Board uncovered respondent's fraudulent acts in the
very same documents he presented to exonerate himself. It also took note of
respondent's contradictory and irreconcilable statements in the pleadings and
position papers he submitted. However, it regarded the penalty of disbarment as too
severe for respondent's misdeeds, considering that the same were his first
offense. 6
Pursuant to Section 12 (b), Rule 139-B of the Rules of Court, 7 the said resolution
in Administrative Case No. 2797 imposing the penalty of suspension for 5 years on
respondent was automatically elevated to this Court for final action. On the other
hand, the dismissal of the complaint for disbarment against Attys. Cope and Jimeno
and Commissioner Cunanan, docketed as CBD Case No. 99-658, became final in
the absence of any petition for review.
This Court confirms the duly supported findings of the IBP Board that respondent
committed condemnable acts of deceit against his client. The fraudulent acts he
carried out against his client followed a well thought of plan to misappropriate the
corporate properties and funds entrusted to him. At the very outset, he embarked
on his devious scheme by making himself the President, Chairman of the Board,
Director and Treasurer of the corporation, although he knew was prohibited from
assuming the position of President and Treasurer at the same time. 8 As Treasurer,
he accepted in behalf of the corporation the 19 titles that complainant and her
daughter co-owned. The other treasurer appointed, Farnacio Bucoy, did not appear
to be a stockholder or director in the corporate records. The minutes of the
meetings supposedly electing him and Bucoy as officers of the corporation actually
bore the signatures of respondent and the secretary only, contrary to his claim that
they were signed by the directors and stockholders.
He likewise misled the IBP investigating commission in claiming that the mortgage
of 9 of the properties of the corporation previously belonging to complainant and her
daughter was ratified by the stockholders owning two-thirds or 67% of the
outstanding capital stock when in fact only three stockholders owning 111 out of
1,750 outstanding shares or 6.3% assented thereto. The alleged authorization
granting him the power to contract the LBP loan for Two Million Two Hundred
Twenty Pesos (P2,220,000) was also not approved by the required minimum of
two-thirds of the outstanding capital stock despite respondent's claim to the
contrary. In all these transactions, complainant and her daughter who both owned
1,711 out of the 1,750 outstanding shares of the corporation or 97.7% never had
any participation. Neither were they informed thereof.
Clearly, there was no quorum for a valid meeting for the discussion and approval of
these transactions.
Respondent cannot take refuge in the contested voting trust agreement supposedly
executed by complainant and her daughter for the reason that it authorized
respondent to represent complainant for only 266 shares.
Aside from the dishonest transactions he entered into under the cloak of sham
resolutions, he failed to explain several discrepancies in his version of the facts. We
hereby reiterate some of these statements noted by Commissioner Cunanan in his
findings.
First, respondent blamed the directors and the stockholders who failed to convene
for the required annual meetings since 1982. However, respondent appeared able
to convene the stockholders and directors when he contracted the LBP debt, when
he sold to Jammang the corporation's right of redemption over the foreclosed
properties of the corporation, when he sold one parcel of land covered by TCT No.
62807 to Jammang, when he mortgaged the 9 parcels of land to LBP which later
foreclosed on said mortgage, and when he sold the complainant's ancestral home
covered by TCT No. 72004.
Second, the factual findings of the investigating commission, affirmed by the IBP
Board, disclosed that complainant and her daughter own 1,711 out of 1,750 shares
of the outstanding capital stock of the corporation, based on the Articles of
Incorporation and deeds of transfer of the properties. But respondent's evidence
showed that complainant had only 266 shares of stock in the corporation while her
daughter had none, notwithstanding the fact that there was nothing to indicate that
complainant and her daughter ever conveyed their shares to others.
Respondent likewise did not explain why he did not return the certificates
representing the 266 shares after the lapse of 5 years from the time the voting trust
certificate was executed in 1981. 9
The records show that up to now, the complainant and her daughter own 97% of
the outstanding shares but respondent never bothered to explain why they were
never asked to participate in or why they were never informed of important
corporate decisions.
Third, respondent, in his comment, alleged that due to the objection of complainant
and her daughter to his proposal to hire an accountant, the corporation had no
formal accounting of its revenues and income. However, respondent's position
paper maintained that there was no accounting because the part-time bookkeeper
of the corporation connived with complainant and her daughter in keeping the
corporate records.
Fourth, respondent's claim that complainant and her daughter took control of the
operations of the corporation in 1986 is belied by the fact that complainant and her
daughter were not even present in the alleged meeting of the board (which took
place after 1986) to discuss the foreclosure of the mortgaged properties. The truth
is that he never informed them of such meeting and he never gave control of the
corporation to them.
Fifth, Commissioner Cunanan found that:
"5. On the matter of the receipts issued by respondent
evidencing payment to him of rentals by lessees of the
corporation, attached to the complaint as Annexes 'H' to
'H-17', respondent claims that the receipts are
temporary in nature and that subsequently regular
corporate receipts were issued. On their face however
the receipts clearly appear to be official receipts, printed
and numbered duly signed by the respondent bearing
his printed name.
"It is difficult to believe that a lawyer of respondent's
stature would issue official receipts to lessees if he only
meant to issue temporary ones." 10
Sixth, respondent denies that he acted as Corporate Secretary aside from being the
Chairman, President and Treasurer of the corporation. Yet respondent submitted to
the investigating commission documents which were supposed to be in the official
possession of the Corporate Secretary alone such as the stock and transfer book
and minutes of meetings.
This Court holds that respondent cannot invoke the separate personality of the
corporation to absolve him from exercising these duties over the properties turned
over to him by complainant. He blatantly used the corporate veil to defeat his
fiduciary obligation to his client, the complainant. Toleration of such fraudulent
conduct was never the reason for the creation of said corporate fiction.
The massive fraud perpetrated by respondent on the complainant leaves us no
choice but to set aside the veil of corporate entity. For purposes of this action
therefore, the properties registered in the name of the corporation should still be
considered as properties of complainant and her daughter. The respondent merely
held them in trust for complainant (now an ailing 83-year-old) and her daughter. The
properties conveyed fraudulently and/or without the requisite authority should be
deemed as never to have been transferred, sold or mortgaged at all. Respondent
shall be liable, in his personal capacity, to third parties who may have contracted
with him in good faith.
Based on the aforementioned findings, this Court believes that the gravity of
respondent's offenses cannot be adequately matched by mere suspension as
recommended by the IBP. Instead, his wrongdoings deserve the severe penalty of
disbarment, without prejudice to his criminal and civil liabilities for his dishonest
acts.
WHEREFORE, respondent Attorney Jesus T. Balicanta is hereby DISBARRED.
The Clerk of Court is directed to strike out his name from the Roll of Attorneys.
SO ORDERED.
||| (Cordon v. Balicanta, A.C. No. 2797, [October 4, 2002], 439 PHIL 95-117)

Seventh, he alleged in his comment that he was the one who proposed the
establishment of the corporation that would invest the properties of the complainant
but, in his position paper, he said that it was a certain Atty. Rosauro Alvarez who
made the proposal to put up the corporation.

After a thorough review of the records, we find that respondent committed grave
and serious misconduct that casts dishonor on the legal profession. His
misdemeanors reveal a deceitful scheme to use the corporation as a means to
convert for his own personal benefit properties left to him in trust by complainant
and her daughter.

Not even his deviousness could cover up the wrongdoings he committed. The
documents he thought could exculpate him were the very same documents that
revealed his immoral and shameless ways. These documents were extremely
revealing in that they unmasked a man who knew the law and abused it for his
personal gain without any qualms of conscience. They painted an intricate web of
lies, deceit and opportunism beneath a carefully crafted smokescreen of corporate
maneuvers.

The Code of Professional Responsibility mandates upon each lawyer, as his duty to
society, the obligation to obey the laws of the land and promote respect for law and
legal processes. Specifically, he is forbidden to engage in unlawful, dishonest,
immoral or deceitful conduct. 11 If the practice of law is to remain an honorable
profession and attain its basic ideal, those enrolled in its ranks should not only
master its tenets and principles but should also, in their lives, accord continuing
fidelity to them. 12 Thus, the requirement of good moral character is of much
greater import, as far as the general public is concerned, than the possession of
legal learning. 13 Lawyers are expected to abide by the tenets of morality, not only
upon admission to the Bar but also throughout their legal career, in order to
maintain one's good standing in that exclusive and honored fraternity. 14 Good
moral character is more than just the absence of bad character. Such character
expresses itself in the will to do the unpleasant thing if it is right and the resolve not
to do the pleasant thing if it is wrong. 15 This must be so because "vast interests
are committed to his care; he is the recipient of unbounded trust and confidence; he
deals with his client's property, reputation, his life, his all." 16

Indeed, the words of former Presiding Justice of the Court of Appeals Pompeyo
Diaz cannot find a more relevant application than in this case:

"There are men in any society who are so self-serving

that they try to make law serve their selfish ends. In this
group of men, the most dangerous is the man of the law
who has no conscience. He has, in the arsenal of his
knowledge, the very tools by which he can poison and
disrupt society and bring it to an ignoble end." 17

Good moral standing is manifested in the duty of the lawyer "to hold in trust all
moneys and properties of his client that may come into his possession." 18 He is
bound "to account for all money or property collected or received for or from the
client." 19 The relation between an attorney and his client is highly fiduciary in
nature. Thus, lawyers are bound to promptly account for money or property
received by them on behalf of their clients and failure to do so constitutes
professional misconduct. 20
[G.R. Nos. 146357 & 148170. August 29, 2002.] PEOPLE OF THE
PHILIPPINES, appellee, vs. MATIAS LAGRAMADA, appellant.
The Solicitor General for appellee.
Fausto S. Arce for appellant.
SYNOPSIS
Appellant was found guilty by the trial court of two (2) counts of rape for sexually
abusing a twelve-year old girl. Hence, this appeal.
The Supreme Court ruled that specific variations in narrations of the same event are
normal and to be expected. In the present case, however, the apparently
synchronized shift from one set of facts (in the affidavits) to another set of facts (in
the testimonies) engenders the thought that the sworn statements and court
testimonies of complainant and her witnesses were probably coached in a vain
attempt to make them seem fully consistent with each other. The Court also ruled
that accused shall be presumed innocent until the contrary is proved. Before the
accused in a criminal case may be convicted, the evidence must be strong enough
to overcome the presumption of innocence and to exclude every hypothesis except
that of the guilt of the defendant. If the inculpatory facts and circumstances are
capable of two or more explanations, one of which is consistent with the innocence
of the accused and the other consistent with his guilt, then the evidence does not
pass the test of moral certainty and will not suffice to support a conviction. The
Court acquitted appellant on reasonable doubt.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; GUIDING PRINCIPLES IN
REVIEWING RAPE CASES. — In reviewing rape cases, this Court has always
been guided by the following principles: (1) an accusation of rape can be made with
facility; it is difficult to prove, but more difficult for the person accused — though
innocent — to disprove; (2) in view of the intrinsic nature of the crime where usually
only two persons are involved, the testimony of the complainant must be scrutinized
with extreme caution; and (3) the evidence for the prosecution must stand or fall on
its own merits and cannot be allowed to draw strength from the weakness of the
evidence for the defense.
2. ID.; EVIDENCE; CREDIBILITY OF WITNESSES; FINDINGS THEREON BY
TRIAL COURT, GENERALLY NOT DISTURBED ON APPEAL. — [W]hen the issue
is the credibility of witnesses and of their testimonies, the trial court is generally
deemed to have been in a better position to observe their deportment and manner
of testifying during the trial. Thus, appellate courts will not disturb its findings, unless
it plainly overlooked certain facts of substance and value which, if considered, might
affect the result of the case. HAICTD
3. ID.; ID.; ID.; NOT ADVERSELY AFFECTED BY MINOR VARIATIONS
BETWEEN AFFIDAVIT AND TESTIMONY OF COMPLAINANT. — [M]inor
variations between the affidavit and the testimony of the complainant are normally
not enough to cast doubt upon her credibility and truthfulness. After all, errorless
statements and testimonies cannot be expected, especially when she is recounting
details of a harrowing experience. In accordance with human nature and
experience, there can be honest inconsistencies on minor and trivial matters, but
these serve to strengthen rather than destroy her credibility, especially when the
crime is shocking to the conscience and numbing to the senses. Hence, she is
ordinarily not deemed discredited by such discrepancies — for example, whether or
not she was able to buy ice before the rape, or whether the accused held both of
her hands or only one of them.
4. ID.; ID.; PRESUMPTIONS; PRESUMPTION OF INNOCENCE; WHERE TWO
CONFLICTING PROBABILITIES ARISE FROM EVIDENCE, THE ONE
COMPATIBLE WITH PRESUMPTION OF INNOCENCE WILL BE ADOPTED. — In
a criminal prosecution, the law always presumes that the defendant is not guilty of
any crime whatsoever, and this presumption stands until it is overcome by
competent and credible proof. Where two conflicting probabilities arise from the
evidence, the one compatible with the presumption of innocence will be adopted. It
is therefore incumbent upon the prosecution to establish the guilt of the accused
with moral certainty or beyond reasonable doubt as demanded by law. . . .
[A]ccused shall be presumed innocent until the contrary is proved. Before the
accused in a criminal case may be convicted, the evidence must be strong enough
to overcome the presumption of innocence and to exclude every hypothesis except
that of the guilt of the defendant. If the inculpatory facts and circumstances are
capable of two or more explanations, one of which is consistent with the innocence
of the accused and the other consistent with his guilt, then the evidence does not
pass the test of moral certainty and will not suffice to support a conviction.
5. LEGAL AND JUDICIAL ETHICS; ATTORNEYS; OWE FIDELITY TO THE
CAUSE OF THEIR CLIENTS AND MUST BE MINDFUL OF THE TRUST AND
CONFIDENCE REPOSED IN THEM. — Lawyers owe fidelity to the cause of their
clients and must be mindful of the trust and confidence reposed in them. They must
also serve their clients with competence and utmost diligence. More particularly,
defense counsels are expected to spare no effort to save the accused from
unrighteous incarcerations. They must present, by all fair and reasonable means,
every defense and mitigating circumstance that the law permits. This they must do
so that their clients would not be deprived of life or liberty except by due process of
law duly applied. Appellant's counsel should have not only perfunctorily represented
his client during the pendency of the case, but should have kept in mind his duty to
render effective legal assistance and true service by protecting the latter's rights at
all times.
DECISION
PANGANIBAN, J p:
If the inculpatory facts and circumstances are capable of two or more reasonable
explanations, one of which is consistent with the innocence of the accused and the
other with his guilt, then the evidence does not pass the test of moral certainty and
will not suffice to support a conviction.
The Case
Matias Lagramada appeals the August 23, 2000 Decision 1 of the Regional Trial
Court (RTC) of Morong, Rizal (Branch 79) in Criminal Case Nos. 3158-M and 3159-
M, finding him guilty of rape and sentencing him to reclusion perpetua. The
dispositive portion of the Decision reads:
"WHEREFORE, in view of the foregoing, and finding the
accused MATIAS LAGRAMADA guilty beyond
reasonable doubt of rape for two (2) counts committed
upon the minor JOSEPHINE LAGRAMADA, [this Court
sentences him] to suffer the penalty of RECLUSION
PERPETUA, for each count of rape and to pay civil
indemnity to [the] offended party in accordance with
recent jurisprudence, the amount of P75,000.00 also for
each count." 2
Two similarly worded Informations, both dated November 11, 1998, 3 charged him
as follows:
"That in or about the month of April, 1996, in the
Municipality of Morong, Province of Rizal, Philippines
and within the jurisdiction of this Honorable Court, the
above-named accused, by means of force, violence and
intimidation, did, then and [there] willfully, unlawfully
and feloniously have carnal knowledge with one
Josephine Lagramada, a twelve (12) year old girl,
against the latter's will and consent." 4
With the assistance of counsel, 5 appellant pleaded not guilty when arraigned on
March 16, 1999. 6 After trial on the merits, the RTC rendered the assailed Decision.
The Facts
Version of the Prosecution
In its Brief, the Office of the Solicitor General (OSG) summarized the prosecution's
version of the facts as follows: 7
"In April 1996, about 7:00 o'clock in the morning, the
victim Josephine Lagramada, 11 years of age, was
sitting inside the sala of her parents' one-storey house
located at San Guillermo, Morong, Rizal, when she was
pulled inside a 3 x 4 meter room by appellant
Matias Lagramada (second cousin of the victim's father)
who threatened her with bodily harm. The victim saw
that appellant had a 'balisong' tucked [in] his pants.
Appellant pushed her on the bamboo bed ('papag'),
removed her shorts and thereupon lay on top of her as
he removed his own clothes. The victim felt pain when
appellant inserted his penis into her vagina. Appellant
gained carnal satisfaction in a matter of three (3)
minutes and left the room thereafter. The victim kept the
incident to herself because she was afraid of appellant
who threatened her not to tell anyone about the
incident. On September 15, 1996, about nighttime,
appellant approached the victim who was sleeping on
the lighted floor of their house beside her younger
sister, Anita Lagramada. Appellant took off her shorts
and had sexual congress with her for about three (3)
minutes. Appellant left the scene, leaving the victim
crying in despair.
"On January 3, 1998, the victim's father,
Apolonio Lagramada, knew of another attempt by
appellant to rape his daughter, which prompted him to
report to the police authorities. The victim, on the same
day, underwent medical examination by Inspector
Dennis G. Bellin, Medico-Legal Officer, Camp Crame
Crime Laboratory Group, Quezon City, and she was
found to have sustained a 'shallow healed laceration at
9:00 o'clock position' and that the '[s]ubject is in [a] non-
virgin state physically."' (Citations omitted)
Version of the Defense
In his Brief, appellant gave his version of the facts thus: 8
 "Sometime in the morning of January 3, 1998 when
accused was residing with his uncle,
Apolonio Lagramada and his daughter[s], Josephine
and Anita[,] in their new residence at El Dorado,
Antipolo City as said accused was helping his uncle,
Apolonio Lagramada in repairing their new residence at
the said El Dorado, Antipolo City, the latter requested
the accused, to help him get a refrigerator he would
repair for the chief of [police] of Baras, Rizal. As
requested, accused helped his uncle, Apolonio and
went directly to the Municipal Hall of Baras, Rizal. Upon
[r]eaching Baras, accused was told by Apolonio to stay
downstairs, but already being guarded by a policeman
right near the [d]esk [s]ergeant while he, Apolonio
proceeded directly upstairs where the Office of the
Chief of Police is situated.
"It did not take long[.] Apolonio went down with the chief
of [p]olice and told accused that he would go home
while he (accused) shall stay with the [p]oliceman on
duty, whose name is 'Pat. Jerry Fuliente, as he heard
the chief of [p]olice telling the [p]oliceman '[to] take him
inside the jail.'
"At about 8[:]30 [a.m.] the next day, January 4, 1998,
Apolonio, with his daughters, Josephine and Anita
appeared and went directly to the Office of the Chief of
Police and moments later, accused saw a policeman
taking the written statements of the two, Josephine and
Anita. Likewise, accused saw his uncle, Apolonio
handing the two (2) documents, saying that the first one
is a Request for Medico Legal and the other is an Initial
Laboratory Report on the medical examination of
Josephine, and [b]oth dated January 3, 1998 of three
(3) years after the alleged rapes were committed.
"While being interviewed by the investigators, Pat. Jerry
Fuliente, who is his guard, used to tell him that he
(accused) must not worry about his situation, as he was
allegedly requested by Apolonio to explain to him hi[s]
situation, in that he (accused) must not worry [about] his
problem as for the amount of P35,000.00 his cases
would be dismissed as Apolonio told him to relay to
him. Not only four times that Pat. Fuliente opened this
matter to the accused, so that, when his relatives like
Francisco Lagramada visited him and gave him money
for his expenses while in jail, he relayed the same to
him as he (accused) won't enter into such a 'stupid
payment' as he did not commit any such rapes against
his cousin when it was he who took care of her when
she, Josephine Lagramada got involved in an accident
and hospitalized for about three (3) weeks at the
Orthopedic Hospital."
Ruling of the Trial Court
The RTC gave full faith and credence to the testimony of complainant. Noting that
she was young and unmarried, it held that she would never fabricate a story of
defloration, allow the examination of her private parts, and thereafter permit herself
to be the subject of a public trial, if she was not motivated by an honest desire to
have the culprit brought to justice. The court a quo also held that her delayed
reporting of the rape incidents did not undermine her credibility, since the delay was
supposedly grounded on appellant's threats to her life. Furthermore, it ruled that the
"minor inconsistencies" in her testimony even bolstered her credibility and the
truthfulness of her story. 9
The RTC did not give credence to the defense of denial interposed by the accused
and ruled that it could not prevail over the positive testimony of complainant. As
between his denial and her positive identification of him, the latter was given greater
weight, especially because she had no motive to testify falsely against him. 10
Hence, this appeal. 11
Issues
In his Brief appellant alleged in a rather jumbled manner that, in convicting him, the
court a quo had erred on the following grounds:
"1. No evidence was presented that it was accused who
deflowered or virginized
Josephine Lagramada, the alleged victim
or complainant in these cases.
xxx xxx xxx
2. The evidence presented by the prosecution calls for
the dismissal of the two (2) cases on
grounds that the testimony of the
complainant, JosephineLagramada was
said to be false and untrue by her
witnesses, her father and sister.
xxx xxx xxx
3. On records now, undoubtedly, Josephine, the
complainant has been lying since the
beginning, from the time the accused-
appellant helped her when she met an
accident up to this time.
xxx xxx xxx
[4]. The very purpose of the father of Josephine,
Apolonio Lagramada, who is a first cousin
of the father (already dead) of herein
accused-appellant [was] to improve his
living with his daughter, Anita and others as
his earnings [were] not enough." 12
In short, he argues that the RTC erred in giving full faith and credence to
complainant's testimony despite its inherent contradictions and implausibility.
The Court's Ruling
The appeal has merit. The guilt of appellant was not proven beyond reasonable
doubt. Therefore, this Court cannot sustain his conviction.
Main Issue:
Complainant's Credibility
In reviewing rape cases, this Court has always been guided by the following
principles: (1) an accusation of rape can be made with facility; it is difficult to prove,
but more difficult for the person accused — though innocent — to disprove; (2) in
view of the intrinsic nature of the crime where usually only two persons are
involved, the testimony of the complainant must be scrutinized with extreme
caution; and (3) the evidence for the prosecution must stand or fall on its own merits
and cannot be allowed to draw strength from the weakness of the evidence for the
defense. 13
Moreover, when the issue is the credibility of witnesses and of their testimonies, the
trial court is generally deemed to have been in a better position to observe their
deportment and manner of testifying during the trial. Thus, appellate courts will not
disturb its findings, unless it plainly overlooked certain facts of substance and value
which, if considered, might affect the result of the case. 14
After poring over the records of this case, especially the transcripts of stenographic
notes, this Court is convinced that the prosecution has not been able to prove
appellant's guilt beyond reasonable doubt.
The Alleged First
Incident of Rape
In her testimony, complainant narrated the supposed first rape in this manner:
"FISCAL RAMIREZ:
Now, when Matias Lagramada was pulling
you, what did he say if any?
A Not to tell anyone.
Q And what was your reaction when he was pulling
you?
A I was afraid, sir.
Q Now, where, did he bring you?
A In the room, sir.
Q Now, this house of yours, how many rooms are
there?
A Two (2), sir.
Q Is that a bungalow or a 2-storey house?
A 1-storey building, sir.
FISCAL RAMIREZ:
You mentioned that you were brought in a
room[;] whose room [was] that?
A Our room, sir.
Q When you said our room, to whom are you referring .
. .?
A I, together with my sister, sir.
Q What is the name of your sister?
A Anita, sir.
Q Now, how far is the sala from your room. Using as a
point of your reference your seat?
A Two (2) meters, sir.
Q Now, that room wherein Matias Lagramada brought
you, is there a door in it?
A There is no door, sir, but there is a curtain.
Q Now, when Matias Lagramada [pulled] you and
brought you inside your room, did you have
a premonition on what will happen to you?
A None, sir.
Q Now, you mentioned that
Matias Lagramada undressed you[;] what
clothes were you wearing at that time?
A A white t-shirt, sir.
Q What did you do, if any, when
Matias Lagramada started to undress you?
A When he was trying to remove my shorts I was
pulling it up and I was frightened, sir.
Q Now, when Matias Lagramada was pulling your
shorts down, you were facing each other, is
that correct?
A Yes, sir.
Q What did you notice from his face when you
attem[p]ted to pull up your shorts?
A His eyes were red.
FISCAL RAMIREZ:
And you mentioned that you were afraid,
why were you afraid?
A Because of what he [would] do to me, sir.
Q Did he already threaten you at that time?
A Yes, sir.
Q What did he say to you?
A Not to tell anyone, sir.
Q And was he in possession of anything?
A A 'balisong' was tucked in his hips.
Q When you said hips, will you kindly demonstrate to
us?
A (Witness pointing to the hips).
Q So Matias Lagramada was able to remove your
shorts?
A Yes, sir.
Q And what happened after that?
A He [lay] on top of me, sir.
Q So, he made you . . . lie down?
A Yes, sir.
Q Where?
A [O]n our 'papag', sir.
Q By the way, how big is your room?
A Three by four (3x4).
Q Now, is there a window in your room?
A Yes, sir.
Q Was the window opened at that time?
A Yes, sir.
FISCAL RAMIREZ:
By the way, how did it happen that you [lay]
down?
A He pushed me, sir.
Q And after he pushed you to the bed, what did he do
next?
A He [lay] on top of me as he removed my clothes.
Q And after he [lay] on top of you, what did he do?
A He removed my clothes and he also told me not to tell
anyone about it.
Q And what did he do on top of you?
A [He placed] his organ to my organ, sir.
Q What did you feel, if any, when he was inserting his
organ to your organ?
A I was hurt, sir.
Q While he was inserting his organ to your organ, what
else did he do to you?
A No more, sir.
Q How long did he stay on top of you?
A Three (3) minutes, sir.
Q What did you notice if anything unusual on your body
at that time?
A I [felt] pain on my organ and when I looked at my
panty there [was] blood.
Q Did you see if something was expelled from the penis
of Matias Lagramada?
A No, sir.
Q Now, after three minutes, what did
Matias Lagramada do?
A He stood up where [sic] his brief and shorts, and left
me inside the room.
FISCAL RAMIREZ:
What did he say or do while he [was]
putting on his clothes?
A That not to tell anyone.
Q Will you describe his expression when he was
making [these] things to you?
A His face was reddish, sir.
Q What was your feeling at the time when he told you
not to tell this matter to anybody?
A I [was] afraid, sir." 15
Anita Lagramada, complainant's sister, gave her own version of the incident as
follows:
"PROSECUTOR RAMIREZ:
xxx xxx xxx
Q You mentioned that your Ate was pulled, where was
she pulled?
A In a room, Sir.
Q Why do you know that she was brought in a room?
A I saw it.
Q How did you [see] it?
A When we were looking for her we saw that she was
being pulled in a room.
Q You mentioned that Matias Lagramada removed the
shorts of your Ate, what else did he do?
A After removing the shorts of my Ate my uncle [lay] on
top of my Ate.
PROSECUTOR RAMIREZ:
While he was on top of your Ate what did
he do?
A He was inserting his organ to the organ of my Ate.
Q [Did] you notice if he ha[d] . . . pants or shorts below
his knees when on top of your Ate?
A None, Sir.
Q What else happened?
A While on top of my Ate he kissed my Ate.
Q Where did he kiss her?
A On her lips.
Q What [was] your Ate doing while
Matias Lagramada was doing this?
A She was pushing him.
Q What else happened?
A No more, Sir." 16
Substantial Inconsistencies
Between the Affidavits
and the Testimonies
This Court carefully perused complainant's account of her alleged defilement and
other records of the case. It notes that both complainant and her sister drastically
changed their stories on when, where and how the first rape had occurred. Their
versions, as related in their affidavits, substantially differed from those in their
testimonies.
It is true that minor variations between the affidavit and the testimony of the
complainant are normally not enough to cast doubt upon her credibility and
truthfulness. 17 After all, errorless statements and testimonies cannot be expected,
especially when she is recounting details of a harrowing experience. 18 In
accordance with human nature and experience, there can be honest
inconsistencies on minor and trivial matters, but these serve to strengthen rather
than destroy her credibility, especially when the crime is shocking to the conscience
and numbing to the senses. 19 Hence, she is ordinarily not deemed discredited by
such discrepancies — for example, whether or not she was able to buy ice before
the rape, or whether the accused held both of her hands or only one of them. 20
However, the inconsistencies in the case at bar are neither minor nor immaterial. In
fact, they refer to relevant and critical matters.
1. Substantial Discrepancy on Time
More often than not, it is the first incident of rape that is most remembered by a
victim. Hence, this Court finds it strange that when first questioned as to the alleged
first rape, complainant related that she had been attacked by the accused at night.
But when questioned in open court, she alleged that the first rape had occurred at
seven o'clock in the morning.
In her Sinumpaang Salaysay, dated January 4, 1998, 21 she related that appellant
committed the rape in the following manner:
"05. T-: Kailan at saan naganap ang unang
panghahalay sa iyo ng iyong tiyuhin na si
Mateo Lagramada?
S-: Noon pong taong 1996 sa unang inuupahang
bahay ng aking magulang sa Brgy. San
Guillermo, Morong, Rizal sa ganap ng ika
9:00 ng gabi. 22
Also executed on January 4, 1998, the Sinumpaang Salaysay of Anita gave a very
similar story:
 "04. T-: Kailan at saan naganap ang ginawang
panggagahasa sa iyong kapatid na si
Josephine Lagramada nitong si
Mateo Lagramada[?]
S-: Noon pong taong 1996 sa ganap na ika-9:00 ng
gabi humigit kumulang[;] habang kami po
ng aking kapatid na si Josephine ay
natutulog na ay bigla po akong nagising
dahil po sa may pumatong sa aking ate
(Josephine) at pilit hinuhubad ang kanyang
damit at ito po ay nagsalita pa na hu[w]ag
kayong sisigaw, papatayin ko kayo [a]t
nakita ko rin pong hinubad ang short ng
aking ate sabay patong po." 23
The above narrations of when the rapes were committed substantially changed
during the testimonies of the two sisters. In open court, complainant related that the
first rape happened one morning in April 1996, after the accused had pulled her into
the house while she was just sitting alone. We quote from her testimony:
"FISCAL RAMIREZ:
xxx xxx xxx
Q At around what time did this Matias Lagramada pull
you?
A 7:00 o'clock in the morning, sir.
Q Aside from you and Matias Lagramada, who were
inside the house at that time?
A None, sir.
Q What were you doing before
Matias Lagramada pulled you?
A None, sir. I was just sitting. 24
Like her sister, Anita substantially changed her narration of when the first rape
allegedly occurred. This time the latter said the two of them were playing hide and
seek when the former was pulled by appellant. Anita testified thus:
"PROSECUTOR RAMIREZ:
You mentioned that your sister was raped
by Matias Lagramada. Do you recall when
and where that incident happened?
A April 4, 1995.
Q Where did that happen?
A San Guillermo, Sir.
Q In what town and province is that San Guillermo
located?
A Morong, Rizal, Sir.
xxx xxx xxx
Q Will you tell us how did that rape incident [happen]?
A We were playing hide and seek when my uncle
arrived dr[u]nk. My Ate was inside the
house and my uncle pulled her. 25
Aside from the radical change in the time — from the Sinumpaang Salaysay to the
court testimony — there was also an inconsistency regarding the date of the first
rape. While complainant said that it occurred in April 1996, her sister said it
happened a year earlier — on April 4, 1995. These two dates were never reconciled
by the prosecution. Thus, the testimonies were notably discrepant, not only with the
affidavits, but also with each other.
2. Substantial Discrepancies on Place and Circumstances
It is true that the exact time when the rape was committed is normally irrelevant.
However, the testimonies of both complainant and her witness were inconsistent
with respect not only to the time, but also to the place and the manner in which the
first rape allegedly occurred. There is indeed a vast difference between being raped
while sleeping at night and being raped after being pulled into one's house in the
morning.
In her Sinumpaang Salaysay, complainant said:
06. T-: Sa ikalilinaw ng aking pagsisiyasat maari mo
bang isalaysay sa akin ang buong mga
pangyayari?
S-: Noong pong taong 1996 sa Brgy. San Guillermo,
Morong, Rizal sa bahay na inuupahan
namin ako po ay limang beses niyang
ginahasa at ito po ay nagaganap tuwing
kami ng aking kapatid na si Anita ay
natutulog na. At nito pong Disyembre 1996
kami po ay lumipat ng aking magulang
kasama ang aking tiyuhin sa aming bahay
sa EL DORADO, Antipolo, Rizal at doon po
ay limang beses din niyang
hinalay/ginahasa na nasaksihan po ng
aking kapatid na si Anita Lagramada. At
ang huli po niyang panggagahasa sa akin
ay noong pong ika 24 ng Disyembre sa
Boundary po ng Teresa at Baras, sa Sitio
Aduas, Brgy. San Salvador, Baras,
Rizal." 26
In court, however, she testified as follows:
"FISCAL RAMIREZ:
xxx xxx xxx
Q Now, do you recall if there was an unusual incident
that happened between you and
Matias Lagramada in your house in April,
1996?
A Yes, sir.
Q What was that?
A He pulled me inside a room and removed my clothes.
He also removed his shorts and brief and
[lay] on top of me, inserted his organ into
mine and after that I again [wore] my shorts
and my panty which I noticed [had blood
stain].
xxx xxx xxx
Q Where, inside your house or outside?
A Inside, sir.
Q Where in your house?
A At the sala, sir.
Q Now, you mentioned that Matias Lagramada pulled
you, what did you do when
Matias Lagramada pulled you?
A I was crying because I [felt] pain." 27
Anita also substantially changed her narration, not only of when, but also of where
and how, the alleged first rape occurred. Again, we quote this relevant portion of
her Sinumpaang Salaysay:
"04. T-: Kailan at saan naganap ang ginawang
panggagahasa sa iyong kapatid na si
Josephine Lagramada nitong si
Mateo Lagramada[?]
S-: Noon pong taong 1996 sa ganap na ika-9:00 ng
gabi humigit kumulang[;] habang kami po
ng aking kapatid na si Josephine ay
natutulog na ay bigla po akong nagising
dahil po sa may pumatong sa aking ate
(Josephine) at pilit hinuhubad ang kanyang
damit at ito po ay nagsalita pa na hu[w]ag
kayong sisigaw, papatayin ko kayo [a]t
nakita ko rin pong hinubad ang short ng
aking ate sabay patong po." 28
But in her testimony, she said that she and her sister were playing hide and seek
when the latter was pulled into their house by the accused. When she peeped
inside, she allegedly saw him raping complainant. Anita testified thus:
"PROSECUTOR RAMIREZ:
xxx xxx xxx
Q You mentioned [that] you were playing hide and
seek[;] with whom were you playing this
game?
A I cannot remember the name but we ha[d] a
playmate.
Q You mentioned that you two ha[d] a playmate. To
whom are you referring [by] you two?
A Me and my Ate, Sir.
Q You are referring to Josephine Lagramada?
A Yes, Sir.
Q What happened after this Matias Lagramada pulled
your sister Josephine Lagramada?
A After pulling my Ate he removed the shorts of my
Ate. 29
We note that while complainant said she was just sitting alone in their house when
the accused pulled her, Anita pointed out that she and complainant were playing
hide and seek when the accused did so. Again, we find the testimonies of the two
sisters to be inconsistent not only with their affidavits, but with each other as well.
As will be discussed shortly, no credible explanation was given for such
inconsistencies, giving way to serious doubts about the credibility of the two girls.
This Court finds it disturbing that complainant gave in her affidavit a version that
was vastly different from that in her testimony as to the time and place as well as
the attendant circumstances of the supposed first rape. It is indeed disturbing that
her sister who was also her witness also drastically changed her story, as if to make
it fit snugly into that of complainant.
Specific or piecemeal variations in narrations of the same event is normal and to be
expected. In the present case, however, the apparently synchronized shift from one
set of facts (in the affidavits) to another set of facts (in the testimonies) engenders
the thought that the sworn statements and court testimonies of complainant and her
witness were probably coached in a vain attempt to make them seem fully
consistent with each other.
3. Implausible Explanation of Discrepancies
The prosecution attempted to explain the gaps in the testimony of complainant by
alleging that she was severely injured in a vehicular accident when she was seven
years old. This far-fetched explanation was perhaps one of the most damaging
arguments against the prosecution's case, because it was an implicit admission that
there had indeed been gaping loopholes in the testimony of complainant, and not
mere confusion in her juvenile mind.
Further reinforcing the view that there was an implicit admission of the gross
inconsistencies on the part of the prosecution was not just the attempt to give an
explanation for them, but even the attempt to present evidence for such explanation
which, however, remained implausible and unsubstantiated. The Temporary
Medical Certificate 30 presented by the prosecution as evidence did not prove that
the past injuries of complainant had indeed caused her to be forgetful or absent-
minded. It merely proved that, several years ago, she had sustained injuries and
was thereafter treated at the Philippine Orthopedic Center. It reads as follows:
"REPUBLIC OF THE PHILIPPINES
DEPARTMENT OF HEALTH
PHILIPPINE ORTHOPEDIC CENTER
MARIA CLARA ST., QUEZON CITY
TEMPORARY MEDICAL CERTIFICATE
Case No. 93327645
Name: JOSEPHINE LAGRAMADA Age: 7 Date: 1-27-93
Diagnosis: (1) CEREBRAL CONTUSION, MODERATE; (2) BASAL
SKULL FRACTURE (L); (3) FRACTURE, CLOSED, VISTAL 1/3, (L)
TIBIA; (4) (L) CLAVICULAR FRACTURE
Remarks: The patient's above-mentioned injuries are being managed
at our institution. They were sustained from a vehicular accident (1-26-
93)
SGD.
A. REBOLUDO M.D.
Physician"
It is not proper to torture the minds of the members of this Court by placing them in
the trying position of running the risk of convicting an innocent man, all because of
the prosecution's failure to do its duty of gathering evidence to establish his guilt
beyond reasonable doubt. 31
4. Long and Unexplained
Delay in Reporting
The silence of complainant — specifically her failure to promptly disclose her
defilement to the authorities or to persons close to her — would not normally
warrant the conclusion that her charges are baseless, untrue or
fabricated. 32 However, the delay must be adequately and satisfactorily explained;
otherwise, it would generate doubt as to her credibility. 33 According to the present
complainant's version, the first rape allegedly occurred in April 1996; and the
second, on September 15, 1996. These were reported only on January 3, 1998 —
21 months after the alleged first rape, and 16 months after the second.
Complainant tried to explain that appellant had threatened to kill her if she reported
the alleged rapes to anybody. The prosecution, however, failed to explain why she
nevertheless ignored those threats and later reported the incidents to her aunt. At
the time the father of complainant came to know of these allegations, appellant was
still living with her family. 34 Hence, the threat of death, if true, still hung upon her
on the day when she and her sister supposedly confided the matter to their aunt.
The prosecution was not able to explain what prompted complainant to finally report
the crime after a period of more than a year and to disregard the supposed death
threats upon her and her family.
Duty of the Prosecution to
Establish Guilt Beyond
Reasonable Doubt
In a criminal prosecution, the law always presumes that the defendant is not guilty
of any crime whatsoever, and this presumption stands until it is overcome by
competent and credible proof. 35 Where two conflicting probabilities arise from the
evidence, the one compatible with the presumption of innocence will be
adopted. 36 It is therefore incumbent upon the prosecution to establish the guilt of
the accused with moral certainty or beyond reasonable doubt as demanded by law.
When a person cries rape, society reacts with sympathy for the victim, admiration
for her bravery in seeking retribution for the crime committed against her, and
condemnation for the accused. However, being interpreters of the law and
dispensers of justice, judges must look at each rape charge sans the above
proclivities and deal with it with caution and circumspection. Judges must free
themselves of the natural tendency to be overprotective of every girl or woman
decrying her defilement and demanding punishment for the abuser. While they
ought to be cognizant of the anguish and humiliation the rape victim goes through
as she demands justice, they should equally bear in mind that their responsibility is
to render justice in accordance with law. 37
Hence, accused shall be presumed innocent until the contrary is proved. 38 Before
the accused in a criminal case may be convicted, the evidence must be strong
enough to overcome the presumption of innocence and to exclude every hypothesis
except that of the guilt of the defendant. 39 If the inculpatory facts and
circumstances are capable of two or more explanations, one of which is consistent
with the innocence of the accused and the other consistent with his guilt, then the
evidence does not pass the test of moral certainty and will not suffice to support a
conviction. 40
Duty of Defense Counsel to
Safeguard His Client's Rights
This Court notes that appellant was incarcerated on January 3, 1998 without a valid
warrant. He was merely invited by complainant's father to accompany him to the
police station, supposedly to pick up a refrigerator they were to repair. Upon their
arrival there, appellant was immediately taken in and locked behind bars. The two
Informations were filed against him only on November 11, 1998, ten months after
the first day of his incarceration. Appellant's counsel, in the spirit of safeguarding his
client's rights, should have taken the necessary steps to correct this situation.
However, he allowed his client to enter a plea during the latter's arraignment on
March 16, 1999 without raising this matter. Thus, the former effectively waived his
client's right to question the validity of the arrest.
Lawyers owe fidelity to the cause of their clients and must be mindful of the trust
and confidence reposed in them. 41 They must also serve their clients with
competence and utmost diligence. 42 More particularly, defense counsels are
expected to spare no effort to save the accused from unrighteous
incarcerations.43 They must present, by all fair and reasonable means, every
defense and mitigating circumstance that the law permits. This they must do so that
their clients would not be deprived of life or liberty except by due process of law
duly applied. 44 Appellant's counsel should have not only perfunctorily represented
his client during the pendency of the case, but should have kept in mind his duty to
render effective legal assistance and true service by protecting the latter's rights at
all times.
WHEREFORE, the appeal is GRANTED and the assailed Decision SET ASIDE.
Appellant Matias Lagramada is ACQUITTED on reasonable doubt.
The director of the Bureau of Corrections is DIRECTED to release him from custody
immediately, unless he is being held for some other lawful cause, and to INFORM
this Court within five (5) days from receipt hereof of the date appellant was actually
released from confinement. Costs de officio.
SO ORDERED.
||| (People v. Lagramada, G.R. Nos. 146357 & 148170, [August 29, 2002], 436 PHIL
758-781)