LEGAL PROFESSION
CASES BATCH # 5
[G.R. Nos. 131384-87. February 2, 2000]
PEOPLE OF THE PHILIPPINES vs.
ELEGIO NADERA, JR. Y SADSAD,
MENDOZA, J.:
These cases are before us on automatic review of the
decision of the Regional Trial Court, Branch 40, Calapan,
Oriental Mindoro, finding accused-appellant Elegio
Nadera, Jr. guilty of four counts of rape of his minor
daughters, Oleby and Maricris Nadera, and sentencing
him to suffer the penalty of reclusion perpetua for one
count of rape and death for each of the remaining three
counts. Accused-appellant was also ordered to indemnify
complainants Oleby Nadera in the amount of
P150,000.00 and Maricris Nadera in the amount of
P50,000.00, without subsidiary imprisonment in case of
insolvency. MENDOZAJ
Reversal of the decision is sought on the sole ground that
- Cynthia S. Fesalbon, accused-appellant pleaded guilty to
THE TRIAL COURT GRAVELY ERRED IN ACCEPTING
ACCUSED-APPELLANT'S IMPROVIDENT PLEA OF GUILTY
TO A CAPITAL OFFENSE AND IN FAILING TO CONDUCT
A SEARCHING INQUIRY TO DETERMINE WHETHER THE
ACCUSED FULLY UNDERSTOOD THE CONSEQUENCE OF
HIS PLEA.[1]
The facts are as follows:
Accused-appellant Elegio Nadera, Jr. has four children by
his wife Daisy, namely: Oleby, born on October 2, 1982;
Maricris, born on March 16, 1984; March Anthony, born
on January 8, 1986; and Sherilyn, born on September
27, 1987.[2]
On September 22, 1991, Daisy left for a job in Bahrain,
and came home to the Philippines for vacation only in
July 1993. She then left again for Bahrain in September
1993 and did not return until September 12, 1995.[3]
On April 28, 1996, Oleby and Maricris, assisted by a
neighbor, Lita Macalalad, told their mother that they had
been raped by their father, herein accused-appellant.
Thereupon, they went to the police authorities of Naujan
and filed a complaint against accused-appellant.[4]
After preliminary examination, on June 6, 1996, four
informations charging accused-appellant with rape on
various dates were filed in the Regional Trial Court,
Calapan, Oriental Mindoro.
In Criminal Case No. C-4982, the information[5] alleged-
That on or about the 17th day of May, 1992, at around
10:00 o'clock in the evening, at Barangay Bayani,
Municipality of Naujan, Province of Oriental Mindoro,
Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, motivated by lust and
lewd design, and by means of force and intimidation,
wilfully, unlawfully and feloniously did lie and succeeded
in having carnal knowledge with his daughter, OLEBY
NADERA, nine (9) years of age at that time against the
latter's will and consent.
In Criminal Case No. C-4983, the information[6] charged
- examination.
That on or about the 17th day of April, 1995 at Barangay
Bayani, Municipality of Naujan, Province of Oriental
Mindoro, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, motivated
by lust and lewd design, and by means of force and
intimidation, wilfully, and unlawfully and feloniously did
lie and succeeded in having carnal knowledge with his
daughter, OLEBY NADERA, twelve (12) years of age at
that time against the latter's will and consent.
In Criminal Case No. C-4984, the information[7] stated-
That on or about the 24th day of April, 1995, sometime
in the evening, at Barangay Bayani, Municipality of
Naujan, Province of Oriental Mindoro, Philippines and
within the jurisdiction of this Honorable Court, the
above-named accused, motivated by lust and lewd
design, and by means of force and intimidation, wilfully,
unlawfully and feloniously did lie and succeeded in
having carnal knowledge with his daughter, OLEBY
NADERA, twelve (12) years of age at that time against
the latter's will and consent.
In Criminal Case No. C-4985, the information[8] recited -
That on or about the 3rd day of March 1996 at around
8:00 o'clock in the evening, at Barangay Bayani,
Municipality of Naujan, Province of Oriental Mindoro,
Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, motivated by lust and
lewd design, and by means of force and intimidation,
wilfully, unlawfully and feloniously did lie and succeeded
in having carnal knowledge with his daughter, MARICRIS
NADERA, eleven (11) years of age against the latter's
will and consent.
The record shows that at his arraignment on July 23,
1996, accused-appellant, assisted by Atty. Manolo A.
Brotonel of the Public Attorney's Office, pleaded not
guilty to the charges filed against him.[9] However, on
August 5, 1997, after the prosecution had presented Dr.
the crime charged in all the informations.
The prosecution presented four witnesses, namely: Dr.
Cynthia Fesalbon, Oleby Nadera, Maricris Nadera, and
Daisy Nadera.
Dr. Cynthia S. Fesalbon, Medical Officer IV of the Oriental
Mindoro Provincial Hospital, who conducted the medical
examination of both complainants, submitted a report on
the result of Oleby Nadera's examination as follows:[10]
PHYSICAL EXAMINATION:
- No sign of external physical injuries as of time of
examination.
- Breast developed
- Abdomen: flat, soft non-tender.
EXTERNAL GENITALIA
- Minimal pubic hair
- Healed incomplete hymenal lacerations at 5, 7, 12
o'clock positions.
- No bleeding.
INTERNAL SPECULUM EXAMINATION
- Vagina admits 2 fingers with ease.
- Cervix small, firm, close non-tender (-) bleeding.
- Uterus not enlarged.
- Adnexae negative
LABORATORY EXAMINATION:
- Smear for the presence of spermatozoa revealed
positive result.
She testified that the hymenal lacerations may have
been caused by the insertion of a hard object, the
patient's history of genitalic insertions, a straddle injury,
or sitting on hard wood. She could not determine when
these lacerations were sustained because they had
healed over a period beyond seven days.[11]
Dr. Fesalbon likewise rendered a report[12] on the
medical examination of Maricris Nadera, the pertinent
parts of which state:
PHYSICAL EXAMINATION:
- No sign of external physical injuries as of time of
- Abdomen, flat, soft.
EXTERNAL GENITALIA:
- Absence of pubic hair healed hymenal lacerations,
incomplete at 1, 5, 8, 11 o'clock positions.
INTERNAL EXAMINATION:
- Vagina admits 1 finger with ease.
- Cervix small (-) bleeding
- Uterus not enlarged.
-Adnexae (-).
LABORATORY EXAMINATION
- Smear for the presence of spermatozoa revealed
Negative result.
In the case of Maricris Nadera, Dr. Fesalbon explained
that the hymenal lacerations could have been caused by
penetration such as through instrumentation or insertion
of an object inside the vagina. They could also have been
caused by the penetration of the penis. Upon inquiry
from the court, Dr. Fesalbon stated that the fact that
Maricris had more hymenal lacerations than Oleby could
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 LEGAL PROFESSION
CASES BATCH # 5
be due to the difference in the impact of penetration. She
added that the number of times each of the girls had
sexual intercourse could not be ascertained merely from
the hymenal lacerations, although it could be concluded
that an object had been inserted in the vagina.[13]
Oleby Nadera testified about the rapes committed by her
father against her as follows:
On May 17, 1992, at around 10 o'clock in the evening,
while Daisy was away working as a domestic helper in
Bahrain, accused- appellant pulled Oleby, then nine
years of age, towards a bed, removed her panties and
shorts and ordered her to keep quiet. He then placed
himself on top of her and inserted his penis into her
vagina. He proceeded to make an up and down motion
while on top of his daughter. All the while, Oleby was
crying, pleading with her father, "Huwag po!", "Huwag
po!" Accused-appellant again ordered Oleby to keep
quiet lest her brother and sisters were awakened.
Afterwards, accused-appellant told Oleby to put on her
panties and shorts and to go to sleep. Oleby went to the
bed where her brother and sisters were sleeping and
cried.
On another occasion, on April 17, 1995, accused-
appellant sent Sherilyn and Maricris to the sari-sari store
while he asked March Anthony to gather firewood. While
Oleby was left alone inside their house in Barangay
Bayani, Naujan, Oriental Mindoro, accused-appellant
again raped her. Oleby was 12 years old at that time.
Accused-appellant closed the door and windows,
removed Oleby's panties and shorts and sat down. While
sitting down, accused-appellant placed Oleby's legs on
his thighs and inserted his penis into her vagina. Later
on, he told Oleby to put on her panties and shorts and
told her to fetch her brother and sisters.
Oleby was raped by her father for the third time on April
24, 1995. That evening, she woke up to find her father
on top of her, taking off her shorts and panties and
inserting his penis into her vagina. As her father was
taking off her clothes, Oleby cried and pleaded, "Huwag
po! Huwag po!" Instead of desisting, accused-appellant
told her to keep quiet so as not to awaken her brother
and sisters, and threatened her with harm if she made
any noise. Accused-appellant then made a pumping
motion, consummating the sexual act with his
daughter.[14]
After Oleby's direct examination had been finished, Atty.
Brotonel, accused-appellant's counsel, did not conduct
any cross examination on the ground that he was
convinced Oleby was telling the truth.[15]
On that same day, Maricris also testified. She related
how she was raped by her father on March 3, 1996, the
year before, when she was 11 years old. At about eight
o'clock in the evening of said date, while her brother and
sisters were sleeping, she was pulled by her father
towards his bed and told to lie down. Accused-appellant
then placed himself on top of Maricris and inserted his
penis into her vagina. Maricris pleaded "Papa, huwag po,
maawa naman kayo sa amin." Ignoring his daughter's
pleas, accused-appellant continued raping her by making
a pumping motion and threatened to kill all of them if
she cried. Accused-appellant afterwards asked Maricris
to put on her shorts and panties and return to bed. He
told Maricris not to cry so as not to awaken her siblings.
She did not tell anyone what befell her because she was
afraid. A neighbor, named Lita Macalalad, asked her if
Oleby had been raped by their father. It turned out Oleby
had told her ordeal to Lita Macalalad while they were
washing clothes and talking about Oleby's parents. Oleby
also told Lita Macalalad that Maricris had been raped by
their father as well, a fact related to Oleby by Maricris.[16]
Daisy Nadera, accused-appellant's wife, also testified for
the prosecution. Her testimony focused on the dates of
births of her children and the fact that she was out of the
country when the alleged rapes occurred. She testified
that she and her daughters filed a complaint for rape
against accused-appellant after discovering his hideous
acts. Thereafter, her children were subjected to a
medical examination.[17]
On August 12, 1997, the prosecution formally offered its
documentary evidence and rested its case thereafter.
Accused-appellant did not present any evidence in his
defense.
On August 27, 1997, the trial court rendered judgment
finding accused-appellant guilty of four counts of rape
against his daughters. The dispositive portion of its
decision[18] reads:
ACCORDINGLY, the Court finds accused Elegio Nadera,
Jr., guilty beyond reasonable doubt, as principal, of the
crime of Rape [4 counts] with the qualifying
circumstance that the victims are under 18 years of age
and the offender is a parent. He is hereby sentenced to
suffer the penalty of Reclusion Perpetua ranging
from 20 years and 1 day to 40 years for the rape
committed on May 17, 1992 and three DEATH
PENALTIES for the rape committed on April 17 and 24,
1995 and March 3, 1996, together with the accessory
penalties provided by law. He is also ordered to
indemnify victim Oleby Nadera the total amount of
P150,000.00 in Criminal Case Nos. C-4982, C-4983 and
C-4984 and Maricris Nadera, the amount of P50,000.00
in Criminal Case No. C-4985, without subsidiary
imprisonment in case of insolvency, and to pay the costs.
S OO R D E R E D.
As already stated, accused-appellant's lone assignment
of error is that the trial court accepted his plea of guilty
to a capital offense without making a searching inquiry
to determine whether he understood the consequences
of his plea. In support of his contention, accused-
appellant invokes the ruling in the case of People v.
Dayot[19] in which this Court ruled that, in criminal cases,
the judge must be convinced that the accused, in
pleading guilty, is truly guilty. This could be done by
requiring him to narrate the events leading to the crime,
making him reenact it, or asking him to supply missing
details. The judge must satisfy himself that: (1) the
accused is voluntarily pleading guilty, and (2) he is truly
guilty and there is a rational basis for a finding of guilt
based on his testimony.
We find merit in accused-appellant's allegations. In
addition, we find that there was inadequate
representation of his case in court, thus necessitating the
remand of this case for further proceedings.
I.
Rule 116 of the Rules on Criminal Procedure provides:
SEC. 3. Plea of guilty to capital offense; reception of
evidence.- When the accused pleads guilty to a capital
offense, the court shall conduct a searching inquiry into
the voluntariness and full comprehension of the
consequences of his plea and require the prosecution to
prove his guilt and the precise degree of culpability. The
accused may also present evidence on his behalf.
Under this Rule, three things are enjoined upon the trial
court when a plea of guilty to a capital offense is entered:
(1) the court must conduct a searching inquiry into the
voluntariness of the plea and the accused's full
comprehension of the consequences thereof; (2) the
court must require the prosecution to present evidence
to prove the guilt of the accused and the precise degree
of his culpability; and, (3) the court must ask the
accused if he desires to present evidence on his behalf
and allow him to do so if he desires.[20]
What constitutes a searching inquiry, as explained
in People v. Alicando,[21] is that the plea of guilt must be
based on a free and informed judgment. Hence, a
searching inquiry must focus on: (1) the voluntariness of
the plea, and (2) the full comprehension of the
consequences of the plea.
In the case at bar, the record does not show what exactly
transpired at the re-arraignment of accused-appellant,
for what reason he changed his plea from "not guilty" to
"guilty," and whether he fully understood the
consequences of his guilty plea. The only indication in
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CASES BATCH # 5
the record that accused-appellant changed his plea to
guilty is the Certificates of Re- Arraignment, dated
August 5, 1997, in Criminal Case Nos. C-4982 to C-
4985.[22] On what exactly accused-appellant said in
entering his plea of guilty and what exactly he had been
told by the trial judge, the records shed no light. There
is thus no evidence to show that accused-appellant's
guilty plea was voluntarily made or that he had fully
understood the consequences of such plea.
In its decision, the trial court described the manner in
which the accused pleaded guilty, thus:
Upon arraignment, accused, assisted by Atty. Manolo A.
Brotonel of the Public Attorney's Office, pleaded not
guilty to the crime charged. However, on August 5,
1997, when these cases were called for pre-trial and
trial, counsel for the accused manifested that the
accused, realizing the futility of entering into trial and
considering that he actually committed the acts
complained of, intimated his intention to enter a plea of
guilty to the above- mentioned charges. The accused
was then asked by this Court if he was aware of the
consequences of a plea of guilty to a capital offense: that
for the rape he committed on May 17, 1992 against his
daughter, Oleby Nadera, who was 9 years old at the
time, he would be sentenced to reclusion perpetua and
for the three other counts of rape committed on April 17
and 24, 1995 [both against Oleby Nadera] and on March
3, 1996 [against Maricris Nadera, 11 years old at the
time], he would be sentenced to death by lethal
injection. After having been informed of this, he insisted
that he is willing to enter a plea of guilty to the crimes
charged and is ready to face the consequences
thereof.[23]
The warnings given by the trial court in this case fall
short of the requirement that it must make a searching
inquiry to determine whether accused-appellant
understood fully the import of his guilty plea. As has
been said, a mere warning that the accused faces the
supreme penalty of death is insufficient.[24] For more
often than not, an accused pleads guilty upon bad advice
or because he hopes for a lenient treatment or a lighter
penalty. The trial judge must erase such mistaken
impressions.[25] He must be completely convinced that
the guilty plea made by the accused was not made under
duress or promise of reward. The judge must ask the
accused the manner the latter was arrested or detained,
and whether he was assisted by counsel during the
custodial and preliminary investigations. In addition, the
defense counsel should also be asked whether he
conferred with the accused and completely explained to
him the meaning and the consequences of a plea of guilt.
Furthermore, since the age, educational attainment and
socio-economic status of the accused may reveal
insights for a proper verdict in the case, the trial court
must ask questions concerning them.[26] In this case,
absent any showing that these questions were put to
accused-appellant, a searching inquiry cannot be said to
have been undertaken by the trial court.
What the trial court did in this case, as described in its
decision, is similar to what happened in People v.
Sevilleno.[27] In that case, the accused was charged with
the rape and homicide of a nine-year old girl. The
accused pleaded guilty whereupon the judge asked him
questions: (1) Do you understand your plea of guilt? and
(2) Do you know that your plea of guilt could bring the
death penalty? This Court held that these questions did
not constitute a searching inquiry.
. . . In every case where the accused enters a plea of
guilty to a capital offense, especially where he is an
ignorant person with little or no education, the proper
and prudent course to follow is to take such evidence as
are available and necessary in support of the material
allegations of the information, including the aggravating
circumstances therein enumerated, not only to satisfy
the trial judge himself but also to aid the Supreme Court
in determining whether the accused really and truly
understood and comprehended the meaning, full
significance and consequences of his plea.[28]
Clearly, the plea of guilty of accused-appellant in this
case was made improvidently.
II.
Convictions based on an improvident plea of guilt are set
aside only if such plea is the sole basis of the judgment.
If the trial court relied on sufficient and credible evidence
to convict the accused, the conviction must be sustained,
because then it is predicated not merely on the guilty
plea of the accused but on evidence proving his
commission of the offense charged.[29]
As already stated, the prosecution evidence consisted of
the testimonies of Oleby and Maricris Nadera, the results
of their medical examinations, and the testimonies of
their mother, Daisy, and the physician who conducted
the medical examination of the two girls, Dr. Cynthia
Fesalbon. Certain circumstances present in this case,
however, persuade us that a remand of this case is
necessary.
First. A perusal of the decision of the court reveals that
the trial judge failed to state the factual and legal
reasons on which he based accused-appellant's
conviction. Except for the narration of the prosecution's
evidence and a bare recital of R.A. No.7659, amending
Art. 335 of the Revised Penal Code, there is nothing else
to indicate the reason for the decision. There is no
evaluation of the evidence and no reason given why the
court found the testimonies of the witnesses credible.
Rule 120 of the 1985 Rules on Criminal Procedure
provides:
Sec. 2. Form and contents of judgment.- The judgment
must be written in the official language, personally and
directly prepared by the judge and signed by him and
shall contain clearly and distinctly a statement of the
facts proved or admitted by the accused and the law
upon which the judgment is based.
If it is of conviction, the judgment shall state (a) the legal
qualification of the offense constituted by the acts
committed by the accused, and the aggravating or
mitigating circumstances attending the commission
thereof, if there be any; (b) participation of the accused
in the commission of the offense, whether as principal,
accomplice, or accessory after the fact; (c) the penalty
imposed upon the accused; and (d) the civil liability or
damages caused by the wrongful act to be recovered
from the accused by the offended party, if there be any,
unless the enforcement of the civil liability by a separate
action has been reserved or waived.
In case of acquittal, unless there is a clear showing that
the act from which the civil liability might arise did not
exist, the judgment shall make a finding on the civil
liability of the accused in favor of the offended party.
In People v. Bugarin,[30] we stated:
The requirement that the decisions of courts must be in
writing and that they must set forth clearly and distinctly
the facts and the law on which they are based serves
many functions. It is intended, among other things, to
inform the parties of the reason or reasons for the
decision so that if any of them appeals, he can point out
to the appellate court the finding of facts or the rulings
on points of law with which he disagrees. More than that,
the requirement is an assurance to the parties that, in
reaching judgment, the judge did so through the
processes of legal reasoning. It is, thus, a safeguard
against the impetuosity of the judge, preventing him
from deciding by ipse dixit. Vouchsafed neither the
sword nor the purse by the Constitution but nonetheless
vested with the sovereign prerogative of passing
judgment on the life, liberty or property of his fellowmen,
the judge must ultimately depend on the power of reason
for sustained public confidence in the justness of his
decision. The decision of the trial court in this case
disrespects the judicial function.
Second. The cavalier attitude of accused-appellant's
counsel, Atty. Manolo A. Brotonel of the Public Attorney's
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 LEGAL PROFESSION
CASES BATCH # 5
Office, cannot go unnoticed. It is discernible in (a) his
refusal to cross examine Oleby Nadera; (b) the manner
in which he conducted Maricris Nadera's cross
examination; and, (c) his failure not only to present
evidence for the accused but also to inform the accused
of his right to do so, if he desires.
Only faithful performance by counsel of his duty towards
his client can give meaning and substance to the
accused's right to due process and to be presumed
innocent until proven otherwise. Hence, a lawyer's duty,
especially that of a defense counsel, must not be taken
lightly. It must be performed with all the zeal and vigor
at his command to protect and safeguard the accused's
fundamental rights.
In the case of People vs. Bermas,[31] no less than three
PAO lawyers were found by the Court to have failed in
performing their duties to their client, an accused
charged with raping his daughter. The first lawyer
inexplicably waived the cross examination of the private
complainant and later asked to be relieved of her duties
as counsel de oficio. A second lawyer appointed by the
court missed several hearings during the trial and could
no longer be located. The third PAO lawyer appointed by
the trial court accepted his duties reluctantly and later
ceased to appear for the accused. This Court held that:
The right to counsel must be more than just the presence
of a lawyer in the courtroom or the mere propounding of
standard questions and objections. The right to counsel
means that the accused is amply accorded legal
assistance extended by a counsel who commits himself
to the cause for the defense and acts accordingly. The
right assumes an active involvement by the lawyer in the
proceedings, particularly at the trial of the case, his
bearing constantly in mind of the basic rights of the
accused, his being well-versed on the case and his
knowing the fundamental procedures, essential laws and
existing jurisprudence. The right of an accused to
counsel finds substance in the performance by the
lawyer of his sworn duty of fidelity to his client. Tersely
put, it means an efficient and truly decisive legal
assistance and not a simple perfunctory representation.
Measured by this standard, the defense counsels conduct
in this case falls short of the quality of advocacy
demanded of him, considering the gravity of the offense
charged and the finality of the penalty. A glaring example
of his manifest lack of enthusiasm for his client's cause
is his decision not to cross examine Oleby Nadera, as
revealed in the following portion of the records:
COURT:
.......Any cross?
ATTY. BROTONEL:
.......If Your Honor please, we are not conducting any
cross-examination, because this representation, from
the demeanor of the witness, I am convinced that she is
telling the truth.[32]
It may be so that defense counsel personally found
Oleby's testimony to be believable. Nonetheless, he had
the bounden duty to scrutinize private complainant's
testimony to ensure that the accused's constitutional
right to confront and examine the witnesses against him
was not rendered for naught.
It bears pointing out that in rape cases, it is often the
word of the complainant against that of the accused, the
two being the only persons present during the
commission of the offense. While the lone testimony of
the victim is sufficient to convict the accused, such
testimony must be clear, positive, convincing and
consistent with human nature and the normal course of
things. Complainant's testimony cannot be accepted with
precipitate credulity without denying the accused's
constitutional right to be presumed innocent.[33] This is
where cross examination becomes essential to test the
credibility of the witnesses, expose falsehoods or half-
truths, uncover the truth which rehearsed direct
examination testimonies may successfully suppress, and
demonstrate inconsistencies in substantial matters
which create reasonable doubt as to the guilt of the
accused and thus to give substance to the constitutional
right of the accused to confront the witnesses against
him. For unless proven otherwise to be guilty beyond all
reasonable doubt, the accused is presumed to be
innocent.[34]
Indeed, cross examining Oleby Nadera becomes
indispensable if her testimony is viewed together with
the results of her medical examination. Oleby Nadera
claimed that she was last raped by her father on April
24, 1995.[35] Yet, the medical examination conducted on
her on April 30, 1996[36] revealed the presence of
spermatozoa in the vaginal canal on that date. This was
a year after the last rape allegedly committed by her
father. This evident discrepancy leads to only one natural
conclusion: Oleby engaged in sexual intercourse a few
days before she was examined. This raises a number of
questions that bear upon the credibility of Oleby as a
witness and upon the guilt of accused- appellant. This
may not necessarily mean that she was lying when she
said that on April 24, 1995 she had been raped by
accused-appellant, but it does indicate a necessity-that
of cross examining her in order to ferret out the truth.
The same may be said of defense counsel's treatment of
Maricris' testimony. While she was cross examined by
defense counsel, the examination was at best a half-
hearted attempt to comply with a lawyer's obligation,
lacking the rigor and zeal required considering that a
man's life is at stake. The cross examination centered on
what Maricris did or did not do while she witnessed her
sister being raped, and on her failure to report the
allegedly incestuous rapes against them. Said cross
examination did not even touch upon the specific details
concerning the rape committed against her. Containing
lurid details as it may be, it was nonetheless important
to probe Maricris' testimony, especially since it was
substantially similar to the first incident of rape narrated
by her sister, and thus raised the possibility that it was
a rehearsed, if not concocted, story.
Lastly, not only did defense counsel fail to object to the
documentary evidence presented by the prosecution,
according to the trial court's decision, he even expressed
his conformity to the admission of the same. Neither did
he present any evidence on behalf of accused-
appellant.[37] Worse, nowhere in the records is it shown
that accused-appellant was informed, either by his
counsel or by the court, of his right to present evidence,
if he so desires.
Atty. Brotonel, as counsel de oficio, had the duty to
defend his client and protect his rights, no matter how
guilty or evil he perceives accused-appellant to be. The
performance of this duty was all the more imperative
because the life of accused-appellant hangs in the
balance. His duty was no less because he was counsel de
oficio.
In view of the foregoing, we find it necessary to remand
the case for the proper arraignment and trial of the
accused, considering not only the accused's improvident
plea of guilt but also his lawyer's neglect in representing
his cause. A new trial has been ordered in criminal cases
on the ground of retraction of witnesses, negligence or
incompetency of counsel, improvident plea of guilty,
disqualification of an attorney de oficio to represent the
accused in the trial court, and where a judgment was
rendered on a stipulation of facts entered into by both
the prosecution and the defense.[38]
WHEREFORE, the decision, dated April 27, 1997, of the
Regional Trial Court, Branch 40, Calapan, Oriental
Mindoro, is hereby SET ASIDE and Criminal Case Nos. C-
4982, C-4983, C-4984 and C-4985 are REMANDED to it
for further proceedings in accordance with this decision.
The trial court is enjoined to conduct the proper trial of
accused-appellant with all deliberate speed upon receipt
of the records of the cases.
SO ORDERED.2/28/00 9:29 AM
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CASES BATCH # 5
A.C. No. 6711, July 3, 2007
MA. LUISA HADJULA VS
ATTY. ROCELES F. MADIANDA
GARCIA, J.:
Under consideration is Resolution No. XVI-2004-472 of
the Board of Governors, Integrated Bar of the Philippines
(IBP), relative to the complaint for disbarment filed by
herein complainant Ma. Luisa Hadjula against
respondent Atty. Roceles F. Madianda.
The case started when, in an AFFIDAVIT-
COMPLAINT[1] bearing date September 7, 2002 and filed
with the IBP Commission on Bar Discipline, complainant
charged Atty. Roceles F. Madianda with violation of
Article 209[2] of the Revised Penal Code and Canon Nos.
15.02 and 21.02 of the Code of Professional
Responsibility.
In said affidavit-complaint, complainant alleged that she
and respondent used to be friends as they both worked
at the Bureau of Fire Protection (BFP) whereat
respondent was the Chief Legal Officer while she was the
Chief Nurse of the Medical, Dental and Nursing Services.
Complainant claimed that, sometime in 1998, she
approached respondent for some legal advice.
Complainant further alleged that, in the course of their
conversation which was supposed to be kept
confidential, she disclosed personal secrets and
produced copies of a marriage contract, a birth
certificate and a baptismal certificate, only to be
informed later by the respondent that she (respondent)
would refer the matter to a lawyer friend. It was
malicious, so complainant states, of respondent to have
refused handling her case only after she had already
heard her secrets.
Continuing, complainant averred that her friendship with
respondent soured after her filing, in the later part of
2000, of criminal and disciplinary actions against the
latter. What, per complainants account, precipitated the
filing was when respondent, then a member of the BFP
promotion board, demanded a cellular phone in
exchange for the complainants promotion.
According to complainant, respondent, in retaliation to
the filing of the aforesaid actions, filed a COUNTER
COMPLAINT[3] with the Ombudsman charging her
(complainant) with violation of Section 3(a) of Republic
Act No. 3019,[4] falsification of public documents and
immorality, the last two charges being based on the
disclosures complainant earlier made to respondent. And
also on the basis of the same disclosures, complainant
further stated, a disciplinary case was also instituted
against her before the Professional Regulation
Commission.
Complainant seeks the suspension and/or disbarment of
respondent for the latters act of disclosing personal
secrets and confidential information she revealed in the
course of seeking respondents legal advice.
In an order dated October 2, 2002, the IBP Commission
on Bar Discipline required respondent to file her answer
to the complaint.
In her answer, styled as COUNTER-
AFFIDAVIT,[5] respondent denied giving legal advice to
the complainant and dismissed any suggestion about the
existence of a lawyer-client relationship between them.
Respondent also stated the observation that the
supposed confidential data and sensitive documents
adverted to are in fact matters of common knowledge in
the BFP. The relevant portions of the answer read:
5. I specifically deny the allegation of F/SUPT. MA. LUISA
C. HADJULA in paragraph 4 of her AFFIDAVIT-
COMPLAINT for reason that she never WAS MY CLIENT
nor we ever had any LAWYER-CLIENT RELATIONSHIP
that ever existed ever since and that never obtained any
legal advice from me regarding her PERSONAL
PROBLEMS or PERSONAL SECRETS. She likewise never
delivered to me legal documents much more told me
some confidential information or secrets. That is because
I never entertain LEGAL QUERIES or CONSULTATION
regarding PERSONAL MATTERS since I know as a
LAWYER of the Bureau of Fire Protection that I am not
allowed to privately practice law and it might also result
to CONFLICT OF INTEREST. As a matter of fact,
whenever there will be PERSONAL MATTERS referred to
me, I just referred them to private law practitioners and
never entertain the same, NOR listen to their stories or
examine or accept any document.
9. I specifically deny the allegation of F/SUPT. MA. LUISA
C. HADJULA in paragraph 8 of her AFFIDAVIT-
COMPLAINT, the truth of the matter is that her ILLICIT
RELATIONSHIP and her illegal and unlawful activities are
known in the Bureau of Fire Protection since she also
filed CHILD SUPPORT case against her lover where she
has a child .
Moreover, the alleged DOCUMENTS she purportedly
have shown to me sometime in 1998, are all part of
public records .
Furthermore, F/SUPT. MA. LUISA C. HADJULA, is filing
the instant case just to get even with me or to force me
to settle and withdraw the CASES I FILED AGAINST HER
since she knows that she will certainly be DISMISSED
FROM SERVICE, REMOVED FROM THE PRC ROLL and
CRIMINALLY CONVICTED of her ILLICIT, IMMORAL,
ILLEGAL and UNLAWFUL ACTS.
On October 7, 2004, the Investigating Commissioner of
the IBP Commission on Bar Discipline came out with
a Report and Recommendation, stating that the
information related by complainant to the respondent is
protected under the attorney-client privilege
communication. Prescinding from this postulate, the
Investigating Commissioner found the respondent to
have violated legal ethics when she [revealed]
information given to her during a legal consultation, and
accordingly recommended that respondent be
reprimanded therefor, thus:
WHEREFORE, premises considered, it is respectfully
recommended that respondent Atty. Roceles Madianda
be reprimanded for revealing the secrets of the
complainant.
On November 4, 2004, the IBP Board of Governors
issued Resolution No. XVI-2004-472 reading as follows:
RESOLVED to ADOPT and APPROVE, as it is hereby
ADOPTED and APPROVED, the Report and
Recommendation of the Investigating Commissioner of
the above-entitled case, herein made part of this
Resolution as Annex A; and , finding the
recommendation fully supported by the evidence on
record and the applicable laws and rules, and considering
the actuation of revealing information given to
respondent during a legal consultation, Atty. Roceles
Madianda is hereby REPRIMANDED.
We AGREE with the recommendation and the premises
holding it together.
As it were, complainant went to respondent, a lawyer
who incidentally was also then a friend, to bare what she
considered personal secrets and sensitive documents for
the purpose of obtaining legal advice and assistance. The
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 LEGAL PROFESSION
CASES BATCH # 5
moment complainant approached the then receptive respondent was actuated by the urge to retaliate without
respondent to seek legal advice, a veritable lawyer-client perhaps realizing that, in the process of giving vent to a
relationship evolved between the two. Such relationship negative sentiment, she was violating the rule on
imposes upon the lawyer certain restrictions confidentiality.
circumscribed by the ethics of the profession. Among the
burdens of the relationship is that which enjoins the IN VIEW WHEREOF, respondent Atty. Roceles F.
lawyer, respondent in this instance, to keep inviolate Madianda is hereby REPRIMANDED and admonished to
confidential information acquired or revealed be circumspect in her handling of information acquired
during legal consultations. The fact that one is, at the as a result of a lawyer-client relationship. She is
end of the day, not inclined to handle the clients case is also STERNLY WARNED against a repetition of the
hardly of consequence. Of little moment, too, is the fact same or similar act complained of.
that no formal professional engagement follows the
consultation.Nor will it make any difference that no SO ORDERED.
contract whatsoever was executed by the parties to
memorialize the relationship. As we said in Burbe v.
Magulta,[6] -

A lawyer-client relationship was established from the

very first moment complainant asked respondent for
legal advise 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.

It 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 employments is established.

Likewise, a lawyer-client relationship exists

notwithstanding the close personal relationship between
the lawyer and the complainant or the non-payment of
the formers fees.

Dean Wigmore lists the essential factors to establish the

existence of the attorney-client privilege
communication, viz:

(1) Where legal advice of any kind is sought (2) from a

professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or
by the legal advisor, (8) except the protection be
waived.[7]

With the view we take of this case, respondent indeed

breached his duty of preserving the confidence of a
client. As found by the IBP Investigating Commissioner,
the documents shown and the information revealed in
confidence to the respondent in the course of the legal
consultation in question, were used as bases in
the criminal and administrative complaints lodged
against the complainant.

The purpose of the rule of confidentiality is actually to

protect the client from possible breach of confidence as
a result of a consultation with a lawyer.
The seriousness of the respondents offense
notwithstanding, the Court feels that there is room for
compassion, absent compelling evidence that the
respondent acted with ill-will.Without meaning to
condone the error of respondents ways, what at bottom
is before the Court is two former friends becoming bitter
enemies and filing charges and counter-charges against
each other using whatever convenient tools and data
were readily available. Unfortunately, the personal
information respondent gathered from her conversation
with complainant became handy in her quest to even the
score. At the end of the day, it appears clear to us that

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CASES BATCH # 5
[ A.C. No. 9390, August 01, 2012 ]
EMILIA O. DHALIWAL, COMPLAINANT,
VS.
ATTY. ABELARDO B. DUMAGUING, RESPONDENT.
RESOLUTION
PERLAS-BERNABE, J.:
Emilia O. Dhaliwal filed a complaint for violation of Canon
16 of the Code of Professional Responsibility against
Atty. Abelardo B. Dumaguing.
In her sworn statement, complainant alleged that she
engaged the services or respondent in connection with
the purchase of a parcel of land from Fil-Estate
Development Inc. (Fil-Estate). On June 13, 2000, upon
the instruction of respondent, complainant's daughter
and son-in-law withdrew P342,000.00 from the
Philippine National Bank (PNB) and handed the cash over
to respondent. They then proceeded to BPI Family Bank
Malcolm Square Branch where respondent purchased
two manager's checks in the amounts of P58,631.94 and
P253,188.00 both payable to the order of Fil- Estate Inc.
When asked why the manager's checks were not
purchased at PNB, respondent explained that he has
friends at the BPI Family Bank and that is where he
maintains an account. These manager's checks were
subsequently consigned with the Housing and Land Use
Regulatory Board (HLURB) after complainant’s request
to suspend payments to Fil-Estate had been granted. On
September 22, 2000, respondent, on behalf of
complainant, filed with the HLURB a complaint for
delivery of title and damages against Fil-Estate. A week
after or on September 29, 2000, he withdrew the two
manager's checks that were previously consigned. On
March 3, 2003, complainant informed the HLURB
through a letter that respondent was no longer
representing her. On March 11, 2003, the HLURB
promulgated its Decision, adverse to complainant,
finding the case for delivery of title and damages
premature as there was no evidence of full payment of
the purchase price. Thereafter, complainant made
demands upon respondent to return and account to her
the amounts previously consigned with the HLURB.
Respondent did not comply. Thus, complainant prays
that respondent be disbarred.
In his answer, respondent admitted substantially all of
the allegations in the complaint. In defense, he claims
that the amount of P311,819.94 was consigned to the
HLURB to cover the full payment of the balance of the
purchase price of the lot with Fil-Estate. Fil-Estate,
however, did not accept the same as it wanted
complainant to also pay interests and surcharges
totalling more than P800,000.00. Because the amount
was formally consigned with the HLURB, he allegedly
filed a motion to verify if the judgment in the case was
already satisfied. He claimed that his motion has not yet
been acted upon; hence, he did not deem it proper as
yet to return the consigned amount.
Following the submission by complainant of her verified
position paper and the failure of respondent to submit
his, despite having been given ample opportunity to do
so, the Commission on Bar Discipline, through Attorney
Gerely C. Rico, submitted its Report and
Recommendation finding complainant to have
sufficiently established that respondent violated Canon
16 of the Code of Professional Responsibility. It
also found respondent to have submitted a false and
fabricated piece of documentary evidence, as the
January 2004 Motion attached to his answer as Annex A
did not bear any proof of service upon the opposing party
and proof of filing with the HLURB. The Commission
recommended that respondent be suspended from the
practice of law for a period of one (1) year. On
September 19, 2007, the IBP Board of Governors passed
Resolution No. XVIII-2007-93, adopting with
modification the Commission's Report and
Recommendation, to wit:
RESOLVED to ADOPT and APPROVE, as it is hereby
ADOPTED and APPROVED, with modification, the Report
and Recommendation of the Investigating Commissioner
of the above-entitled case, herein made part of this
Resolution as Annex “A”; and, finding the
recommendation fully supported by the evidence on
record and the applicable laws and rules, and considering
Respondent's violation of Canon 16 of the Code of
Professional Responsibility by his failure to return and
account to complainant the amount previously consigned
with the HLURB despite demand, Atty. Abelardo B.
Dumaguing is hereby SUSPENDED from the practice of
law for six (6) months and Ordered to Return the amount
of P311,819.94 to complainant within thirty (30) days
from receipt of notice.
Respondent's motion for reconsideration was denied by
the IBP Board of Governors in Resolution No. XX-2012-
42.
The Court adopts the IBP's findings of fact and
conclusions of law.
The Code of Professional Responsibility provides:
Canon 16-A lawyer shall hold in trust all moneys and
properties of his client that may come into his
possession.
Rule 16.01-A lawyer shall account for all money or
property collected or received for or from the client.
Rule 16.02-A lawyer shall keep the funds of each client
separate and apart from his own and those of others kept
by him.
Rule 16.03-A lawyer shall deliver the funds and property
of his client when due or upon demand.
Money entrusted to a lawyer for a specific purpose, such
as payment for the balance of the purchase price of a
parcel of land as in the present case, but not used for
the purpose, should be immediately returned. “A
lawyer's failure to return upon demand the funds held by
him on behalf of his client gives rise to the presumption
that he has appropriated the same for his own use in
violation of the trust reposed in him by his client.
Such act is a gross violation of general morality as well
as of professional ethics. It impairs public confidence in
the legal profession and deserves punishment.”
Since respondent withdrew the consignation of the BPI
manager’s checks in the total amount of P311,891.94
from the HLURB and the same was not used to settle the
balance of the purchase price of the parcel of land
purchased by complainant from Fil-Estate, then
reimbursement with legal interest was properly ordered
by the IBP.
Respondent's proffered excuse of having to await the
HLURB action on his alleged motion--the filing of which
he miserably failed to prove--as a condition to the return
of the sum of P311,891.94 to complainant compounds
his liability and even bolstered his attitude to use
dishonest means i r only to evade his obligation. It
underlines his failure to meet the high moral standards
required of members of the legal profession.
WHEREFORE, Atty. Abelmdo B. Dumaguing is adjudged
GUILTY of violating Canon 16 of the Code of Professional
Responsibility. He is hereby SUSPENDED from the
practice of law for a period of six (6) months effective
upon receipt of this Resolution. He is also ordered to
return to complainant Emilia O. Dhaliwal, the amount of
P311,819.94 with legal interest of six percent (6%) per
annum from the time of his receipt of the money on
September 29, 2000 up to the finality of this Resolution
and twelve percent ( 12%) per annum from finality
thereof until paid.
Let copies of this Resolution be furnished the Office of
the Bar Confidant to be entered into respondent's
personal record as attorney. Copies shall likewise be
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 LEGAL PROFESSION
CASES BATCH # 5
furnished the IBP and the Office of the Court
Administrator for circulation to all courts concerned.
SO ORDERED.
[A.C. No. 1558. March 10, 2003]
HONORIO MANALANG and FLORENCIO
CIRILLO, complainants, vs. ATTY. FRANCISCO F.
ANGELES,[1] respondent.
RESOLUTION
QUISUMBING, J.:
In this administrative complaint[2] filed on November 11,
1975, against Atty. Francisco F. Angeles for grave
misconduct as a lawyer, respondent stands charged with
infidelity in the discharge of fiduciary obligations to his
clients, herein complainants Honorio Manalang and
Florencio Cirillo.
Manalang and Cirillo alleged that they were the
complainants in a case for overtime and separation pay
filed against their employer, the Philippine Racing Club
Restaurant, before the National Labor Relations
Commission Region IV Office, docketed as NLRC-RO 4
No. 4-2417-74. Respondent was their counsel. Judgment
was rendered in their favor, in the amount of P6,500.
After the decision became final, a writ of execution
issued. However, without authority from his clients,
respondent compromised the award and was able to
collect P5,500 only.
Complainants said they made several demands upon
respondent to turn over to them the amount collected
minus the agreed upon attorneys fees of thirty percent
(30%), but Atty. Angeles refused and offered to give
them only the sum of P2,650.
Complainants then instituted the instant case, with the
assistance of the then Citizens Legal Assistance Office
(CLAO)[3] of the Department of Justice.
In his answer, filed on December 15, 1975, respondent
stated that he offered to give complainants their money,
but they insisted that he deduct from this attorneys fees
the amount of P2,000, representing the amount
discounted by the counsel of the Philippine Racing Club
Restaurant, together with sheriff legal fees and other
administrative expenses.[4] Respondent claimed that to
accept complainants proposition meant that he would
not be compensated for prosecuting and handling the
case.[5]
In our resolution[6] of January 9, 1976, we referred the
case to the Office of Solicitor General (OSG) for
investigation, report, and recommendation.
The OSG conducted several hearings from March-August
1976.[7] The complainants testimonies were received.
Respondent appeared only at three (3) hearings, those
of June 21, 1976,[8] July 1, 1976[9] and August 6,
1976.[10] On August 24, 1976, the Solicitor General
ordered respondents testimony stricken from the record
and the case deemed submitted for resolution[11] for his
failure to appear despite due notice.
Thereafter, the case was transferred to the Committee
on Bar Discipline of the Integrated Bar of the Philippines
(IBP). Hearings were scheduled on September 20 and
November 21, 1991, but neither party appeared despite
prior due notice. The IBP then subpoenaed respondent
for him to appear at the hearings on February 12-13,
1992, but the notices were returned unserved with the
indication that respondent had changed address. On July
8, 1992, the IBP issued an order stating that respondent
had been given ample opportunities to present his
evidence and considered the case submitted for
resolution on the basis of the existing evidence.
On January 23, 1997, the IBP Committee on Bar
Discipline issued a resolution recommending that
respondent be suspended from the practice of law for
two (2) years.[12] This was adopted and approved by the
IBP Board of Governors in its resolution of July 26,
1997.[13]
On September 23, 1997, respondent moved for
reconsideration of the resolution of the IBP Board of
Governors, dated July 26, 1997.
On October 8, 1997, we resolved to refer this matter to
the Office of the Bar Confidant for recommendation
within twenty (20) days from notice.[14] On June 19,
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 LEGAL PROFESSION
CASES BATCH # 5
2002, the Bar Confidant recommended that the IBP fraternity should refrain from any act or omission which
Resolution, recommending suspension of the respondent might lessen the trust and confidence reposed by the
from the practice of law for two (2) years be affirmed.[15] public in the fidelity, honesty, and integrity of the legal
The sole issue in this case is whether respondent Atty. profession.[24]
Francisco F. Angeles should be suspended from the We note that in 1976 at the hearings before the OSG,
practice of law because of grave misconduct related to complainant Manalang declared he was already 58 years
his clients funds. old,[25] while complainant Cirillo stated that he was 64
Where a member of the bar stands charged with years of age.[26] A quarter of century has since passed. It
malpractice, the proceedings are not meant solely to rule is true that a disciplinary action involves no private
on his culpability but also to determine if the lawyer interest and affords no redress for private grievance,
concerned is possessed of that good moral character, since it is undertaken solely for the public welfare, and
which is a condition precedent to the privilege of the attorney-at-law is called to task mainly to answer to
practicing law and continuing in the practice this Court for his conduct as an officer of the
thereof.[16] For the bar must not only maintain a high court.[27] Nevertheless, we must stress that disciplinary
standard of legal proficiency, it must likewise be exacting action against a member of the bar involves the public
in its standards for honesty, integrity, and fair dealing. interest, and it should be resolved with
In the instant case, there is no dispute that complainants dispatch.[28] Moreover, we note that respondents clients
were awarded P6,500.00 in NLRC-RO 4 No. 4-2417-74 in the instant case were poor working men. They were
for unpaid overtime and separation pay. Of this amount, made to wait long for their money, by their very own
thirty percent (30%) or P1,950 was agreed to be paid to counsel, contrary to the Attorneys Oath and the Code of
respondent as his attorneys fees. In other words, Professional Responsibility. This is contrary to all ethical
complainants were to receive from respondent the net principles that members of the bar are supposed to
sum of P4,550 or P2,275 each. Alleging difficulties in uphold. Thus, we find no hesitance in imposing on
collecting the full amount awarded, respondent respondent the penalty of suspension. However, this is
compromised the award on execution and collected the first case on record against him, a fact which could
only P5,500 from the losing party in NLRC-RO 4 No. 4- be taken into account by way of mitigation. Considering
2417-74. This compromise was allegedly without further the amount involved, the penalty of six (6)
authority from his clients. The authority to compromise months suspension appears to us in order.
cannot be lightly presumed and must be supported by ACCORDINGLY, the Court hereby SUSPENDS Atty.
evidence.[17] In the instant case, respondent failed to Francisco F. Angeles from the practice of law for a period
show such authority. of six (6) months, effective immediately upon his receipt
Money claims due to workers cannot, as a rule, be the of this Resolution. He is also ordered to pay the sum of
object of settlement or compromise effected by counsel two thousand two hundred seventy five pesos
without the consent of the workers concerned.[18] A (P2,275.00) each to complainants Honorio Manalang and
client has every right to expect from his counsel that Florencio Cirillo, with interest of six percent (6%) per
nothing will be taken or withheld from him, save by the annum from the time of filing this complaint until fully
rules of law validly applied. By compromising the paid.
judgment without the consent of his clients, respondent Let a copy of this resolution be served personally on
not only went against the stream of judicial dicta, he also respondent at his last known address and entered in his
exhibited an uncaring lack of devotion to the interest of record as attorney. Let the IBP, the Bar Confidant, and
his clients as well as want of zeal in the maintenance and the Court Administrator be furnished also a copy of this
defense of their rights. In so doing, he violated Canon 17 resolution for their information and guidance as well as
of the Code of Professional Responsibility.[19] for circularization to all courts in the country.
Worse, as found by the IBP Committee on Bar Discipline, SO ORDERED.
respondent only offered to remit to complainants the
amount of P2,650 or P1,325 each, an amount
substantially less than the P2,275 that each complainant
was entitled to receive under the judgment. On this
score, respondent failed to establish any credible
defense. Moreover, he consistently failed to appear at
the hearings scheduled by the CBD. Hence, his excuse
for failing to give the money due his clients merit scant
consideration.
A lawyer shall hold in trust all moneys and properties of
his client that may come into his possession.[20] In the
instant case, the records clearly and abundantly point to
respondents receipt of and failure to deliver upon
demand, the amount of P4,550 intended for his clients.
This is a clear breach of Rule 16.03,[21] Canon 16 of the
Code of Professional Responsibility. Moreover, his excuse
in his answer, that he should be allowed to deduct
sheriffs fees and other administrative expenses before
delivering the money due his clients, is
unsatisfactory.Respondent clearly failed to comply with
the Rules of Court in the enforcement of an attorneys
liens.[22] The records of this case are barren of any
statement of respondents claims for lien or payment of
his alleged disbursements. Nor did respondent present
any showing that he caused written notices of his lien on
the money judgment to be served upon his clients and
to the losing party in NLRC-RO 4 No. 4-2417-74.
His act of holding on to his clients money without their
acquiescence is conduct indicative of lack of integrity and
propriety. He was clinging to something which was not
his, and to which he had no right.[23] He appears
oblivious of the admonition that a member of the legal

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A.C. No. 8158, February 24, 2010
ATTY. ELMER C. SOLIDON VS ATTY. RAMIL E.
MACALALAD
BRION, J.:
In a verified complaint[1] before the Commission on Bar
Discipline of the Integrated Bar of the Philippines (IBP
Commission on Bar Discipline), Atty. Elmer C. Solidon
(Atty. Solidon) sought the disbarment of Atty. Ramil E.
Macalalad (Atty. Macalalad) for violations of Rule
16.01,[2] Rule 18.03,[3] and Rule 18.04[4] of the Code of
Professional Responsibility involving negligence in
handling a case.
The Facts
Atty. Macalalad is the Chief of the Legal Division of the
Department of Environment and Natural Resources
(DENR), Regional Office 8, Tacloban City. Although he is
in public service, the DENR Secretary has given him the
authority to engage in the practice of law.
While on official visit to Eastern Samar in October
2005, Atty. Macalalad was introduced to Atty. Solidon by
a mutual acquaintance, Flordeliz Cabo-Borata (Ms. Cabo-
Borata). Atty. Solidon asked Atty. Macalalad to handle
the judicial titling of a parcel of land located in
Borongan, Eastern Samar and owned by Atty. Solidons
relatives. For a consideration of Eighty Thousand Pesos
(P80,000.00), Atty. Macalalad accepted the task to be
completed within a period of eight (8) months. Atty.
Macalalad received Fifty Thousand Pesos (P50,000.00)
as initial payment; the remaining balance of Thirty
Thousand Pesos (P30,000.00) was to be paid when Atty.
Solidon received the certificate of title to the property.
Atty. Macalalad has not filed any petition for registration
over the property sought to be titled up to the present
time.
In the Complaint, Position Papers[5] and documentary
evidence submitted, Atty. Solidon claimed that he tried
to contact Atty. Macalalad to follow-up on the status of
the case six (6) months after he paid the initial legal
fees. He did this through phone calls and text messages
to their known acquaintances and relatives, and, finally,
through a letter sent by courier to Atty.
Macalalad. However, he did not receive any
communication from Atty. Macalalad.
In the Answer,[6] Position Paper,[7] and affidavits of
witnesses, Atty. Macalalad posited that the delay in the
filing of the petition for the titling of the property was
caused by his clients failure to communicate with
him. He also explained that he had no intention of
reneging on his obligation, as he had already prepared
the draft of the petition. He failed to file the petition
simply because he still lacked the needed documentary
evidence that his clients should have furnished
him. Lastly, Atty. Macalalad denied that Atty. Solidon
tried to communicate with him.
The Findings of the IBP
In his Report and Recommendation dated June 25, 2008,
Investigating Commissioner Randall C. Tabayoyong
made the following finding of negligence against Atty.
Macalalad:
complainant submitted in his position paper the affidavit
of Flordeliz Cabo-Borata, the mutual acquaintance of
both complainant and respondent. In the said affidavit,
Mrs. Cabo-Borata described how she repeatedly
followed-up the matter with respondent and how
respondent turned a deaf ear towards the same. There
is nothing on record which would prompt this Office to
view the allegations therein with caution. In fact,
considering that the allegations corroborate the
undisputed facts of the instant case...
As respondent has failed to duly present any reasonable
excuse for the non-filing of the application despite the
lapse of about a year from the time his services were
engaged, it is plain that his negligence in filing the
application remains uncontroverted. And such
negligence is contrary to the mandate prescribed in Rule
18.03, Canon 18 of the Code of Professional
Responsibility, which enjoins a lawyer not to neglect a
legal matter entrusted to him. In fact, Rule 18.03 even
provides that his negligence in connection therewith shall
render him liable.
Acting on this recommendation, the Board of Governors
of the IBP Commission on Bar Discipline passed
Resolution No. XVIII-2008-336 dated July 17, 2008,
holding that:
RESOLVED TO ADOPT and APPROVE, as it is hereby
unanimously ADOPTED and APPROVED, with
modification, the Report and Recommendation of the
Investigating Commissioner of the above-entitled case,
herein made part of this Resolution and, finding the
recommendation fully supported by the evidence on
record and the applicable laws and rules, and considering
Respondents violation of Rule 18.03 of the Code of
Professional Responsibility, Atty. Ramil E. Macalalad is
hereby SUSPENDED from the practice of law for three
(3) months and Ordered to Return the amount of Fifty
Thousand Pesos (P50,000) with 12% interest per annum
to complainant
The case is now before this Court for our final action
pursuant to Section 12(b), Rule 139-B of the Rules of
Court, considering that the IBP Commission on Bar
Discipline imposed the penalty of suspension on Atty.
Macalalad.
The Courts Ruling
We agree with the IBPs factual findings and legal
conclusions.
In administrative cases against lawyers, the quantum of
proof required is preponderance of evidence which the
complainant has the burden to discharge.[8] We fully
considered the evidence presented and we are fully
satisfied that the complainants evidence, as outlined
above, fully satisfies the required quantum of proof in
proving Atty. Macalalads negligence.
Rule 18.03, Canon 18 of the Code of Professional
Responsibility provides for the rule on negligence and
states:
Rule 18.03 A lawyer shall not neglect a legal
matter entrusted to him and his negligence in
connection therewith shall render him liable.
This Court has consistently held, in construing this Rule,
that the mere failure of the lawyer to perform the
obligations due to the client is considered per se a
violation.
Thus, in Villafuerte v. Cortez,[9] we held that a lawyer
is negligent if he failed to do anything to protect his
clients interest after receiving his acceptance fee. In In
Re: Atty. Briones,[10] we ruled that the failure of the
counsel to submit the required brief within the
reglementary period (to the prejudice of his client who
languished in jail for more than a year) is an offense that
warrants disciplinary action. In Garcia v. Atty. Manuel,
we penalized a lawyer for failing to inform the client of
the status of the case, among other matters.[11]
Subsequently, in Reyes v. Vitan,[12] we reiterated that
the act of receiving money as acceptance fee for legal
10 | P a g e
 LEGAL PROFESSION
CASES BATCH # 5
services in handling the complainants case and,
subsequently, in failing to render the services, is a clear
violation of Canon 18 of the Code of Professional
Responsibility. We made the same conclusion in Canoy
v. Ortiz[13] where we emphatically stated that the
lawyers failure to file the position paper was per se a
violation of Rule 18.03 of the Code of Professional
Responsibility.
The circumstance that the client was also at fault does
not exonerate a lawyer from liability for his negligence in
handling a case. In Canoy, we accordingly declared that
the lawyer cannot shift the blame to his client for failing
to follow up on his case because it was the lawyers duty
to inform his client of the status of the case.[14] Our
rulings in Macarilay v. Seria,[15] in Heirs
of Ballesteros v. Apiag,[16] and in Villaflores v.
Limos[17] were of the same tenor. In Villaflores, we
opined that even if the client has been equally at fault
for the lack of communication, the main responsibility
remains with the lawyer to inquire and know the best
means to acquire the required information. We held that
as between the client and his lawyer, the latter has more
control in handling the case.
All these rulings drive home the fiduciary nature of a
lawyers duty to his client once an engagement for legal
services is accepted. A lawyer so engaged to represent
a client bears the responsibility of protecting the latters
interest with utmost diligence.[18] The lawyer bears the
duty to serve his client with competence and diligence,
and to exert his best efforts to protect, within the bounds
of the law, the interest of his or her
client.[19] Accordingly, competence, not only in the
knowledge of law, but also in the management of the
cases by giving these cases appropriate attention and
due preparation, is expected from a lawyer.[20]
The records in this case tell us that Atty. Macalalad failed
to act as he committed when he failed to file the required
petition. He cannot now shift the blame to his clients
since it was his duty as a lawyer to communicate with
them. At any rate, we reject Atty. Macalalads defense
that it was his clients who failed to contact him. Although
no previous communication transpired between Atty.
Macalalad and his clients, the records nevertheless show
that Atty. Solidon, who contracted Atty. Macalalads
services in behalf of his relatives, tried his best to reach
him prior to the filing of the present disbarment case.
Atty. Solidon even enlisted the aid of Ms. Cabo-Borata to
follow-up on the status of the registration application
with Atty. Macalalad.
As narrated by Ms. Cabo-Borata in her affidavit,[21] she
succeeded several times in getting in touch with Atty.
Macalalad and on those occasions asked him about the
progress of the case. To use Ms. Cabo-Boratas own
words, she received no clear-cut answers from him; he
just informed her that everything was on process. We
give credence to these narrations considering Atty.
Macalalads failure to contradict them or deny their
veracity, in marked contrast with his vigorous denial of
Atty. Solidons allegations.
We consider, too, that other motivating factors
specifically, the monetary consideration and the fixed
period of performance should have made it more
imperative for Atty. Macalalad to promptly take action
and initiate communication with his clients. He had been
given initial payment and should have at least
undertaken initial delivery of his part of the engagement.
We further find that Atty. Macalalads conduct refutes his
claim of willingness to perform his obligations. If Atty.
Macalalad truly wanted to file the petition, he could have
acquired the necessary information from Atty. Solidon to
enable him to file the petition even pending the IBP
Commission on Bar Discipline investigation. As matters
now stand, he did not take any action to initiate
communication. These omissions unequivocally
point to Atty. Macalalads lack of due care that now
warrants disciplinary action.
In addition to the above finding of negligence, we also
find Atty. Macalalad guilty of violating Rule 16.01 of the
Code of Professional Responsibility which requires a
lawyer to account for all the money received from the
client. In this case, Atty. Macalalad did not immediately
account for and promptly return the money he received
from Atty. Solidon even after he failed to render any
legal service within the contracted time of the
engagement.[22]
The Penalty
Based on these considerations, we modify the IBP
Commission on Bar Disciplines recommended penalty by
increasing the period of Atty. Macalalads suspension
from the practice of law from three (3) months, to six
(6) months.[23] In this regard, we follow the Courts lead
in Parias v. Paguinto[24] where we imposed on the
respondent lawyer suspension of six (6) months from the
practice of law for violations of Rule 16.01 and Rule
18.03 of the Code of Professional Responsibility.
WHEREFORE, premises considered, we
hereby AFFIRM WITH MODIFICATION Resolution No.
XVIII-2008-336 dated July 17, 2008 of the Board of
Governors of the IBP Commission on Bar Discipline. We
impose on Atty. Ramil E. Macalalad the penalty of SIX
(6) MONTHS SUSPENSION from the practice of law for
violations of Rule 16.03 and Rule 18.03 of the Code of
Professional Responsibility, effective upon finality of this
Decision. Atty. Macalalad is STERNLY WARNED that a
repetition of the same or similar acts will be dealt with
more severely.
Atty. Macalalad is also ORDERED to RETURN to Atty.
Elmer C. Solidon the amount of Fifty Thousand Pesos
(P50,000.00) with interest of twelve percent (12%) per
annum from the date of promulgation of this Decision
until the full amount is returned.
Let copies of this Decision be furnished the Office of the
Bar Confidant and noted in Atty. Macalalads record as a
member of the Bar.
SO ORDERED.
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 LEGAL PROFESSION
CASES BATCH # 5
A. C. No. 5355 December 13, 2011
OFFICE OF THE COURT ADMINISTRATOR,
Petitioner,
- versus -
ATTY. DANIEL B. LIANGCO,
The Case
This is an administrative Complaint for Disbarment filed
by the Office of the Court Administrator (OCA) against
respondent Atty. Daniel B. Liangco.
In a per curiam En Banc Resolution in Gozun v. Hon.
Liangco,[1] dated 30 August 2000, this Court ordered the
dismissal from service of respondent as judge of the
Municipal Trial Court (MTC) of San Fernando, Pampanga
and as acting judge of the Municipal Circuit Trial Court
(MCTC) of Mexico-San Luis, Pampanga. His dismissal
was with forfeiture of all his retirement benefits and
accumulated leave credits; and with prejudice to his
reinstatement or reemployment in any branch,
instrumentality or agency of the government, including
government-owned or -controlled corporations. The
Court further directed the OCA to initiate disbarment
proceedings against him for misconduct as a member of
the bar. Hence, this present case for resolution by the
Court.
The Facts
We quote the facts as stated in A. M. No. MTJ-97-
1136,[2] as follows:
Complainant Hermogenes T. Gozun (hereinafter referred
to as Gozun) was in open and adverse possession of
subject land for a period of more than thirty years. His
familys house was erected on the land. The house was
made of old vintage lumber, cement, hollow blocks, G.
I. sheet roofing and other strong materials. Gozun
inherited the house and lot from his parents.
The municipality of San Luis, Pampanga claimed to own
the same lot.
On January 12, 1996, the Sangguniang Bayan of San
Luis, Pampanga issued Resolution No. 26-96, stating:
RESOLVED AS IT IS HEREBY RESOLVED that the
Sangguniang Bayan of San Luis, Pampanga do hereby
consider (sic) the lot under Tax Dec. No. 114 owned by
the Municipal Government of San Luis, Pampanga,
specifically the lot where Mr. Hermogenes Gozun and
family were squatting (sic) as the new site of the Rural
Health Center will rise (sic).
On May 17, 1996, the Sangguniang Bayan issued
Resolution No. 34-96 to amend the correct Resolution
No. 26-96.
On May 24, 1996, Romulo M. Batu, Vice Mayor, on behalf
of the Sangguniang Bayan, filed with the MTC, San Luis,
Pampanga, a petition for declaratory relief. We quote the
petition:
PETITION FOR DECLARATORY RELIEF
THE HONORABLE
JUDGE DANIEL LIANGCO
In behalf of the Sangguniang Bayan of San Luis,
Pampanga, We would like to petition your good office to
render legal opinion on the following matters, to wit:
1. The validity of the attached Resolution.
2. The powers of the Municipal Mayor to enforce said
Resolution.
3. To issue an order to the PNP to assist the Municipal
Mayor in implementing said Resolution.
These request are (sic) in connection with our plan to
construct a new site for the Rural Health Center of San
Luis, Pampanga. However, the designated place thereof
is presently being squatted (sic) by a certain Mr.
Hermogenes Gozun and inspite of the official notice of
Atty. Benlfre S. Galang, our Provincial Legal Officer, and
personal request of our Municipal Mayor Jovito C. Bondoc
to Mr. Gozun to vacate his (sic) premises, he continues
to defy such notices and request to the detriment of the
proposed project.
WHEREFORE, it is respectfully prayed that this petition
will merit your favorable consideration and appropriate
action for the sake of public interest.
On the very same day, May 24, 1996, respondent judge
issued a resolution, reasoning: First, the municipality of
San Luis, Pampanga through its Sangguniang Bayan
may enact resolutions and ordinances to regulate the use
of property within its jurisdiction. Second, Resolution No.
34-96 is not contrary to law, morals and public
policy. Third, the municipal mayor through an executive
order may order the Philippine National Police or any
government law enforcement agency to enforce or
implement the resolution, using reasonable force if
necessary and justified. Fourth, squatting in government
property is considered a nuisance per se. Respondent
judge ruled:
With the issuance by the Municipal Mayor of an executive
order, the municipality of San Luis may order the
Philippine National Police (PNP) stationed in San Luis,
Pampanga to effect the eviction of Hermogenes Gozun
and all other persons who may be claiming any right
under him from Lot No. 114 covered by tax Declaration
No. 6030 (underscoring ours).
Again, on the same day, March 24, 1996, the municipal
mayor, Jovito C. Bondoc, pursuant to the aforequoted
resolution, issued Executive Order No. 1, series of 1996,
ordering the PNP to implement Resolution No. 34-96.
Note that complainant Gozun was not served with
summons or given notice of the petition for declaratory
relief.
On June 2, 1996, complainant Gozun learned about the
resolution.
On June 3, 1996, complainant Gozuns wife together with
other public school teachers went to the office of the
respondent judge. When asked about the resolution,
respondent judge answered, Ing Apung Guinu yu y
Mayor Bondoc at kaya ko makisabi (Your God is Mayor
Bondoc and you should talk to him).
On August 8, 1996, agents of the municipal government
demolished complainant Gozuns house, using
respondent judges resolution and the mayors executive
order as basis.
On December 18, 1996, complainant Gozun filed this
administrative complaint with the Office of the Court
Administrator. He averred that respondent judges
issuance of the resolution amounts to gross misconduct,
gross inefficiency and incompetence. Complainant Gozun
further accused the municipal mayor of having bribed
respondent judge. Mayor Bondoc told complainant
Gozun that the respondent judge is in his pocketbecause
he (Mayor Bondoc) has given him (respondent judge) a
lot of things (dacal naku a regalo kaya).
On January 20, 1997, the Office of the Court
Administrator submitted the petition to this Court for its
consideration, recommending that the complaint be
given due course.
12 | P a g e
 LEGAL PROFESSION
CASES BATCH # 5
On March 21, 1997, the Court resolved to require
respondent judge to comment thereon, within ten (10)
days from notice.
On May 15, 1997, respondent judge submitted his
comment, denying the charges and urging that the case
be dismissed.
On June 23, 1997, we referred the case back to the
Office of the Court Administrator for evaluation, report
and recommendation.
On April 13, 2000, after investigation, Court
Administrator Alfredo L. Benipayo submitted a
memorandum, recommending the dismissal from office
of respondent judge.[3]
A.M. No. MTJ-97-1136
Dismissal of Respondent from the Bench
The OCA Resolution was forwarded to this Court for
evaluation and action and docketed as A.M. No. MTJ-97-
1136. On 30 August, 2000, the Court En Banc
promulgated a per curiam Resolution adopting the
report and recommendation of the Court Administrator.
It ruled that respondent had blatantly ignored the basic
rules of fair play, in addition to acting without jurisdiction
in entertaining a Petition for Declaratory Relief despite
his being a judge of a first-level court.[4] The Court also
pointed out that his ruling on the said Petition resulted
in the demolition of the house of complainant Gozun,
thus rendering his family homeless.[5] It described
respondents acts as biased and maleficent and ruled that
those acts merited the punishment of dismissal from the
service,[6] viz:
IN VIEW WHEREOF, the Court hereby orders the
DISMISSAL of respondent Judge Daniel B. Liangco,
Municipal Trial Judge, Municipal Trial Court, San
Fernando, Pampanga, and Acting Judge Municipal Circuit
Trial Court (MCTC), Mexico-San Luis, Pampanga, from
the service, with forfeiture of all retirement benefits and
accumulated leave credits, if any, and with prejudice to
reinstatement or reemployment in any branch,
instrumentality or agency of the Government, including
government-owned or controlled corporations.
The Court directs the Court Administrator to initiate
disbarment proceedings against respondent Judge for
misconduct as a member of the bar within thirty (30)
days from finality of his decision.
This decision is immediately executory.
SO ORDERED.[7]
A.C. No. 5355
Disbarment
On 10 November 2000, the OCA filed a Complaint for
Disbarment against respondent.[8] In its Complaint dated
06 November 2000, docketed as Administrative Case No.
(A.C.) 5355, the OCA charged him with gross misconduct
for acting with manifest bias and partiality towards a
party, as well as for inexcusable ignorance of well-
established rules of procedure that challenged his
competence to remain a member of the legal profession.
Thus, it prayed that he be disbarred, and that his name
be stricken off the Roll of Attorneys.[9]
On 28 November 2000, the Court En Banc promulgated
a Resolution requiring respondent to file his Comment on
the Complaint for Disbarment against him.[10] On 01
June 2001, he filed his Comment on/Answer to
Complaint for Disbarment,[11] appealing for
understanding and asking that the Court allow him to
continue practicing as a lawyer. He reasoned that when
he acted on the Petition for Declaratory Relief filed by
the Sangguniang Bayan of the Municipality of San Luis,
Pampanga, he was merely rendering a legal opinion
honestly and in good faith;[12] and that his actions were
not attended by malice, bad faith or any other ulterior
motive.[13] He further pleads for compassion from this
Court and for permission to remain a member of the bar,
because the practice of law is his only means of livelihood
to support his family.[14]
On 07 August 2001, the Court En Banc noted the
submission of respondent and referred the case to the
Integrated Bar of the Philippines (IBP) for investigation,
report and recommendation within ninety (90) days from
receipt of the records of the case.[15]
IBPs Report and Recommendation
The IBP held a series of hearings on the disbarment case
with respondents participation. On 03 October 2003, the
investigating commissioner issued her Report and
Recommendation[16] finding justification for the
disbarment of respondent and recommending that his
name be struck off the Roll of Attorneys. The
investigating commissioner found that, based on the
facts of the case, there was clear, convincing and
satisfactory evidence to warrant the disbarment of
respondent.[17] She observed that he had exhibited
lapses, as well as ignorance of well-established rules and
procedures. She also observed that the present
Complaint was not the first of its kind to be filed against
him. She further noted that before his dismissal from the
judiciary, respondent was suspended for six (6) months
when he assigned to his court, without a raffle, fifty-four
(54) cases for violation of Presidential Decree No. 1602
a violation of Supreme Court Circular No. 7 dated 23
September 1974. Also, pending with the Supreme Court
were three (3) administrative cases filed against him for
dishonesty, gross ignorance of the law, and direct
bribery. In the bribery case, he was caught by the
National Bureau of Investigation in an entrapment
operation.[18]
On 30 January 2009, respondent filed a Motion for
Reconsideration[19] of the Report and Recommendation
of the IBP. He alleged that the evidence presented in the
proceedings for his dismissal as judge was the same as
that which was used in the disbarment case against him.
Thus, because he did not have the chance to cross-
examine the witnesses, he claimed to have been
deprived of due process.[20] In addition, respondent
emphasized the submission by Gozun of an Affidavit of
Desistance from the Complaint the latter had originally
filed against him and contended that the case should
have been dismissed.[21] Lastly, respondent averred that
he had endeavored to improve himself as a devout
Catholic by joining religious organizations. He also
impressed upon the IBP his effort to improve on his
knowledge of the law by attending Mandatory Continuing
Legal Education (MCLE).[22]
On 12 May 2009, respondent filed a Supplemental
Motion for Reconsideration[23] wherein he implored the
IBP to take a second look at his case. He emphasized the
submission by Gozun of an Affidavit of Desistance and
the fact that the former had already suffered the
supreme penalty of dismissal as MTC
judge.[24] Respondent also reiterated the grounds
already stated in his first Motion for Reconsideration.
On 09 October 2008, the IBP board of governors passed
Resolution No. XVIII-2008-525,[25] which adopted the
Report and Recommendation of the investigating
commissioner, who found that respondent had acted
with manifest bias and partiality in favor of a party-
litigant and shown inexcusable ignorance of the Rules of
Procedure. The Resolution likewise adopted the
recommendation to disbar respondent.
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 LEGAL PROFESSION
CASES BATCH # 5
On 30 June 2011, the IBP Commission on Bar Discipline
transmitted the case records of A. C. No. 5355 to this
Court, which noted it on 16 August 2011.[26]
The Courts Ruling
The Court affirms in toto the findings and
recommendations of the IBP.
The evidence on record overwhelmingly supports the
finding that respondent is guilty of gross misconduct and
inexcusable ignorance of well-established rules of
procedures.
Gross Misconduct
In Sps. Donato v. Atty. Asuncion, Jr.[27] citing Yap v.
Judge Aquilino A. Inopiquez, Jr.,[28] this Court explained
the concept of gross misconduct as any inexcusable,
shameful or flagrant unlawful conduct on the part of a
person concerned with the administration of justice; i.e.,
conduct prejudicial to the rights of the parties or to the
right determination of the cause. The motive behind this
conduct is generally a premeditated, obstinate or
intentional purpose.
In the case at bar, respondent acted upon the Petition
for Declaratory Relief filed by the Sangguniang Bayan of
San Luis, Pampanga, without the mandatory notice to
Gozun who would be affected by the action. The records
show that respondent, upon receipt of the Petition, had
it docketed in his court, designated Gozun as respondent
in the case title, and quickly disposed of the matter by
issuing a Resolution all on the same day that the Petition
was filed without notice and hearing. Respondent
admitted that, to his mind, he was merely rendering a
legal opinion at the local governments behest, which he
gladly and expeditiously obliged. Without denying this
fact in his Comment, he admitted that he had erred in
acting upon the Petition, but emphasized that his actions
were not attended by malice or bad faith.[29]
We find his statements hard to believe.
The undue haste with which respondent acted on the
Petition negates good faith on his part. Moreover, the
testimonial evidence on record indicates that he
maintained close relations with the municipal vice-mayor
of San Luis, Pampanga, a party-litigant who had an
obvious interest in the outcome of the case. The
testimony of Romulo A. Batu, former vice-mayor of San
Luis, Pampanga, showed that respondent denigrated his
impartiality as a judge is as follows:
COMM. SANSANO:
You dont remember therefore that at any time at all you
were with the mayor in going to see the respondent?
WITNESS: (Mr. Batu)
I do not know any instance that the mayor visited the
respondent, Your Honor. I do not know any instance that
I was with him.
COMM. SANSANO:
But other than the occasion of the filing of this request
there were times when you went to see the respondent
also in his office?
WITNESS:
There was no other visit, Your Honor.
COMM. SANSANO:
So May 24, 1996 was the first time you went to see him
in his office?
WITNESS:
Before that, Your Honor, nagpupunta na kami doon kung
minsan may nagpapatulong na mga may kaso.
COMM. SANSANO:
Yon ang tanong ko kanina sa iyo kung bago May
24 pumupunta ka na sa opisina niyang datihan?
WITNESS:
Yes, Your Honor. [30]
The testimony of respondents own witness clearly
showed his wanton disregard of Canon 1, Sections 4 and
5 of the New Code of Judicial Conduct for the Philippine
Judiciary, which requires the observance of judicial
independence and its protection from undue influence,
whether from private or from public interests.[31]
In Edao v. Judge Asdala,[32] we explained the rationale
behind this imposition:
As the visible representation of the law and justice,
judges, such as the respondent, are expected to conduct
themselves in a manner that would enhance the respect
and confidence of the people in the judicial system. The
New Code of Judicial Conduct for the Philippine Judiciary
mandates that judges must not only maintain their
independence, integrity and impartiality; but they must
also avoid any appearance of impropriety or partiality,
which may erode the peoples faith in the
judiciary. Integrity and impartiality, as well as the
appearance thereof, are deemed essential not just in the
proper discharge of judicial office, but also to the
personal demeanor of judges. This standard applies not
only to the decision itself, but also to the process by
which the decision is made. Section 1, Canon 2,
specifically mandates judges to ensure that not only is
their conduct above reproach, but that it is perceived to
be so in the view of reasonable observers.Clearly, it is of
vital importance not only that independence, integrity
and impartiality have been observed by judges and
reflected in their decisions, but that these must also
appear to have been so observed in the eyes of the
people, so as to avoid any erosion of faith in the justice
system. Thus, judges must be circumspect in their
actions in order to avoid doubt and suspicion in the
dispensation of justice. To further emphasize its
importance, Section 2, Canon 2 states:
Sec. 2. The behavior and conduct of judges must
reaffirm the peoples faith in the integrity of the judiciary.
Justice must not merely be done but must also be seen
to be done.
As early as June 6, 2003, OCA Circular No. 70-2003 has
directed judges as follows:
In view of the increasing number of reports reaching the
Office of the Court Administrator that judges have been
meeting with party litigants inside their chambers,
judges are hereby cautioned to avoid in-chambers
sessions without the other party and his counsel present,
and to observe prudence at all times in their conduct to
the end that they only act impartially and with propriety
but are also perceived to be impartial and proper.
Impartiality is essential to the proper discharge of the
judicial office. It applies not only to the decision itself but
also to the process by which the decision is made. As
such, judges must ensure that their conduct, both in and
out of the court, maintains and enhances the confidence
14 | P a g e
 LEGAL PROFESSION
CASES BATCH # 5
of the public, the legal profession and litigants in the
impartiality of the judge and of the judiciary. In the same
vein, the Code of Judicial Conduct behooves all judges to
avoid impropriety and the appearance of impropriety in
all their activities, as such is essential to the performance
of all the activities of a judge in order to maintain the
trust and respect of the people in the judiciary.
Also relevant is Canon 3, particularly Section 2 of the
new code, which exhorts judges not only to be impartial
in deciding the cases before them, but also to project the
image of impartiality.[33] Unfortunately, as shown by the
facts of the case, these rules were not properly observed
by respondent as a judge of a first-level court.
Inexcusable Ignorance of the Law
We are appalled by respondents ignorance of the basic
rules of procedure. His wanton use of court processes in
this case without regard for the repercussions on the
rights and property of others clearly shows his unfitness
to remain a member of the bar.
A cursory look at the Resolution dated 24 May 1996
issued by respondent would prompt an ordinary person
to conclude that an action in the form of a Petition for
Declaratory Relief was indeed filed, because it bears the
name and the branch of the court of law that issued it.
It had a docket number and the names of the parties
involved. The Resolution even states the justiciable
question to be resolved and accordingly makes a judicial
determination thereof. In reality, though, there was no
notice sent to Gozun, the named respondent in the
Petition; nor was a hearing held to thresh out the issues
involved. As far as respondent was concerned, he simply
issued a legal opinion, but one with all the hallmarks of
a valid issuance by a court of law, despite the absence
of mandatory processes such as notice especially to
Gozun and hearing. Even this excuse is unacceptable.
Judges do not, and are not allowed, to issue legal
opinions. Their opinions are always in the context of
judicial decisions, or concurring and dissenting opinions
in the case of collegiate courts, and always in the context
of contested proceedings.
What is most unfortunate is that the Sanguniang Bayan,
relying on the Resolution respondent issued, caused the
demolition of the house of Gozun and his family, who
were thus ejected from the property they had been
occupying for decades. In effect, Gozun was deprived of
his property without due process. To us, this is precisely
the injustice that members of the bench and the bar are
sworn to guard against. Regrettably, respondent as
judge was even instrumental in its commission. When
his liability for his act was invoked, he casually justifies
them as honest mistakes not attended by malice or bad
faith. His justification is unacceptable to us.
As a member of the bar and former judge, respondent is
expected to be well-versed in the Rules of Procedure.
This expectation is imposed upon members of the legal
profession, because membership in the bar is in the
category of a mandate for public service of the highest
order. Lawyers are oath-bound servants of society
whose conduct is clearly circumscribed by inflexible
norms of law and ethics, and whose primary duty is the
advancement of the quest for truth and justice, for which
they have sworn to be fearless crusaders.[34]
As judge of a first-level court, respondent is expected to
know that he has no jurisdiction to entertain a petition
for declaratory relief. Moreover, he is presumed to know
that in his capacity as judge, he cannot render a legal
opinion in the absence of a justiciable question.
Displaying an utter lack of familiarity with the rules, he
in effect erodes the publics confidence in the competence
of our courts. Moreover, he demonstrates his ignorance
of the power and responsibility that attach to the
processes and issuances of a judge, and that he as a
member of the bar should know.
Canon 1 of the Code of Professional Responsibility
mandates that a lawyer must uphold the Constitution
and promote respect for the legal processes.[35] Contrary
to this edict, respondent malevolently violated the basic
constitutional right of Gozun not to be deprived of a right
or property without due process of law.
Under Canon 10, Rule 10.03, respondent as lawyer is
mandated to observe the Rules of Procedure and not to
misuse them to defeat the ends of justice.[36] In this
case, however, the opposite happened. Respondent
recklessly used the powers of the court to inflict injustice.
Should the misconduct of respondent as judge also
warrant his disbarment from the legal profession? We
answer in the affirmative.
In Collantes v. Renomeron,[37] we ruled therein that the
misconduct of the respondent therein as a public official
also constituted a violation of his oath as a lawyer:
As the late Chief Justice Fred Ruiz Castro said:
"A person takes an oath when he is admitted to the Bar
which is designed to impress upon him his
responsibilities. He thereby becomes an officer of the
court on whose shoulders rest the grave responsibility of
assisting the courts in the proper, fair, speedy and
efficient administration of justice. As an officer of the
court he is subject to a rigid discipline that demands that
in his every exertion the only criterion be that truth and
justice triumph. This discipline is what has given the law
profession its nobility, its prestige, its exalted place.
From a lawyer, to paraphrase Justice Felix Frankfurter,
are expected those qualities of truth-speaking, a high
sense of honor, full candor, intellectual honesty, and the
strictest observance of fiduciary responsibility - all of
which, throughout the centuries, have been
compendiously described as 'moral character.'
xxx xxx xxx
"A lawyer shall not engage in conduct that adversely
reflects on his fitness to practice law, nor shall he,
whether in public or private life, behave in a scandalous
manner to the discredit of the legal profession." (Rule
7.03, Code of Professional Responsibility.)
This Court has ordered that only those who are
"competent, honorable, and reliable" may practice the
profession of law (Noriega vs. Sison, 125 SCRA 293) for
every lawyer must pursue "only the highest standards in
the practice of his calling" (Court Administrator vs.
Hermoso, 150 SCRA 269, 278).
Recently, in Samson v. Judge Caballero,[38] we ruled that
because membership in the bar is an integral
qualification for membership in the bench, the moral
fitness of a judge also reflects the latters moral fitness
as a lawyer. A judge who disobeys the basic rules of
judicial conduct also violates the lawyers oath.
We note that on 25 August 2011, respondent filed a
Petition for Review on Certiorari assailing Resolution No.
XVIII-2008-525 dated 09 October 2008 promulgated by
the IBP board of governors, which adopted and approved
the findings of the investigating commissioner
recommending his disbarment. Respondent alleged
therein that he had served as assistant provincial
prosecutor in the Office of the Provincial Prosecutor of
Pampanga for thirteen (13) years prior to his dismissal
as MTC judge of San Luis, Pampanga and as acting MCTC
judge of Mexico-San Luis, Pampanga. He also complains
15 | P a g e
 LEGAL PROFESSION
CASES BATCH # 5
that he was deprived of due process by the IBP board of
governors when it approved and adopted the findings of
the investigating commissioner recommending his
disbarment; and he prays for a second look at his case,
considering the withdrawal of the Complaint originally
filed by Gozun.
In the light of our ruling in this case, we can no longer
consider the undocketed Petition for Review on Certiorari
filed by respondent. In the first place, such kind of
petition is not available to assail the resolution of the IBP
in an administrative case. His remedies from an adverse
resolution is to seek a reconsideration of the same, and
when denied, to raise the same defenses against
administrative liability before this Court. He has availed
of both remedies in this case.
Disbarment proceedings are sui generis. As such, they
render the underlying motives of complainant
unimportant and of little relevance. The purpose of
disbarment proceedings is mainly to determine the
fitness of a lawyer to continue acting as an officer of the
court and as participant in the dispensation of justice an
issue which the complainants personal motives have
little relevance. For this reason, upon information of an
alleged wrongdoing, the Court may initiate the
disbarment proceedings motu proprio.[39]
Recently in Garrido v. Atty. Garrido,[40] we reiterated the
unique characteristic of disbarment proceedings and
their purpose in this wise:
Laws dealing with double jeopardy or with procedure
such as the verification of pleadings and prejudicial
questions, or in this case, prescription of offenses or the
filing of affidavits of desistance by the complainant do
not apply in the determination of a lawyers qualifications
and fitness for membership in the Bar. We have so ruled
in the past and we see no reason to depart from this
ruling. First, admission to the practice of law is a
component of the administration of justice and is a
matter of public interest because it involves service to
the public. The admission qualifications are also
qualifications for the continued enjoyment of the
privilege to practice law. Second, lack of qualifications or
the violation of the standards for the practice of law, like
criminal cases, is a matter of public concern that the
State may inquire into through this Court. In this sense,
the complainant in a disbarment case is not a direct party
whose interest in the outcome of the charge is wholly his
or her own; effectively, his or her participation is that of
a witness who brought the matter to the attention of the
Court.
Thus, despite Gozuns desistance in A.M. No. MTJ-97-
1136, from whence this case originated, respondent is
not exonerated.
WHEREFORE, this Court resolves to DISBAR Atty.
Daniel B. Liangco for the following offenses:
1. GROSS MISCONDUCT in violation of Canon 1,
Sections 4 and 5 of the New Code of Judicial Conduct for
the Philippine Judiciary
2. INEXCUSABLE IGNORANCE OF THE LAW in
violation of Canons 1 and 10, Rule 10.03 of the Code of
Professional Responsibility
Let a copy of this Decision be attached to the personal
records of Atty. Daniel B. Liangco in the Office of the Bar
Confidant and another copy furnished the Integrated Bar
of the Philippines.
The Bar Confidant is hereby directed to strike out the
name of Daniel B. Liangco from the Roll of Attorneys.
SO ORDERED.
.C. No. 6691 April 27, 2007
ATTY. GEORGE C. BRIONES, Complainant,
vs.
ATTY. JACINTO D. JIMENEZ, Respondent.
RESOLUTION
AUSTRIA-MARTINEZ, J.:
The root of herein administrative complaint for
Disbarment1 dated August 12, 2004 filed by Atty. George
S. Briones charging Atty. Jacinto D. Jimenez with
violation of Revised Circular No. 28-91 on forum-
shopping and Rule 19.01 and Rule 12.08 of the Code of
Professional Responsibility, is the April 3, 2002 Order of
the Regional Trial Court (RTC) of Manila in SP Proc. No.
99-92870, entitled, "In the Matter of the Petition for the
Allowance of the Will of Luz J. Henson", to wit:
IN VIEW OF THE FOREGOING, the court hereby:
1. Reiterates its designation of the accounting firm of
Messrs. Alba, Romeo & Co. to immediately conduct an
audit of the administration by Atty. George S. Briones of
the estate of the late Luz J. Henson, the expenses of
which shall be charged against the estate.
2. Suspends the approval of the report of the special
administrator except the payment of his commission
which is hereby fixed at 1.8% of the value of the estate.
3. Directs the special administrator to deliver the residue
to the heirs in proportion to their shares. From the share
of Lilia J. Henson-Cruz, there shall be deducted the
advances made to her.
IT IS SO ORDERED.
Complainant Atty. Briones is the Special Administrator of
the Estate of Luz J. Henson. Respondent Atty. Jacinto D.
Jimenez is the counsel for the Heirs of the late Luz J.
Henson (Heirs).
On April 9, 2002, Atty. Jimenez filed with the RTC a
notice of appeal from the Order dated April 3, 2002,
questioning the payment of commission to Atty.
Briones.2
On April 29, 2002, Atty. Jimenez filed with the Court of
Appeals (CA) a Petition for Certiorari, Prohibition
and Mandamus, docketed as CA-G.R. SP No. 70349
assailing the Order dated March 12, 2002, appointing the
firm of Alba, Romeo & Co. to conduct an audit at the
expense of the late Luz J. Henson, as well as the Order
dated April 3, 2002, insofar as it denied their motion for
recommendation.3
On July 26, 2002, Atty. Jimenez filed with the CA a
Petition for Mandamus, docketed as CA-G.R. No.
71844,4alleging that the respondent Judge therein
unlawfully refused to comply with his ministerial duty to
approve their appeal which was perfected on time.5
Atty. Briones, in his Comment, contends that the heirs
of the late Luz J. Henson, represented by Atty. Jimenez,
are guilty of forum shopping for which reason, the
petition should be dismissed. 6
On February 11, 2003, the CA without touching on the
forum shopping issue, granted the petition and ordered
the respondent Judge to give due course to the appeal
taken by Atty. Jimenez from the Order dated April 3,
2002, insofar as it directed the payment of commission
to Atty. Briones.7
Atty. Briones then filed with this Court a Petition for
Review on Certiorari under Rule 45 of the Rules of Court,
docketed as G.R. No. 159130, praying for the dismissal
of the appeal from the Order dated April 3, 2002, insofar
as it ordered the payment of commission to him, as the
Special Administrator of the estate of the deceased Luz
J. Henson.8
The Court gave due course to the petition and required
the parties to file their respective memoranda.
Atty. Briones (hereinafter referred to as complainant)
filed his "Memorandum with Administrative Complaint
for Disbarment against Atty. Jacinto Jimenez, Counsel
for Respondents",9 for violation of Rule 19.01 and Rule
12.08 of the Code of Professional Responsibility and
Revised Circular No. 28-91 on forum shopping.
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 LEGAL PROFESSION
CASES BATCH # 5
Complainant claims that Atty. Jimenez (hereinafter
referred to as respondent) and the Heirs engaged again
in forum shopping when respondent, as counsel for the
Heirs, filed a criminal complaint and executed an
affidavit against complainant for resisting and seriously
disobeying the RTC Order dated April 3, 2002 which
directed complainant to deliver the residue of the estate
to the Heirs in proportion to their shares, punishable
under Article 151 of the Revised Penal Code.
Complainant further claims that respondent violated
Rules 19.01 and 12.08 of the Code of Professional
Responsibility, to wit:
Rule 19.01 - A lawyer shall employ only fair and honest
means to attain the lawful objectives of his client and
shall not present, participate in presenting or threaten to
present unfounded criminal charges to obtain an
improper advantage in any case of proceeding.
Rule 12.08 – A lawyer shall avoid testifying in behalf of
his client, except:
(a) on formal matters, such as the mailing,
authentication or custody of an instrument, and the like;
or
b) on substantial matters, in cases where his testimony
is essential to the ends of justice, in which event he
must, during his testimony, entrust the trial of the case
to another counsel.
by filing the unfounded criminal complaint against him
to obtain an improper advantage in Special Proceedings
No. 99-92870 before the RTC, Branch 46, and coerce
complainant to deliver to the Heirs the residue of the
estate of the late Luz J. Henson without any writ of
execution or any pronouncement from the RTC as to the
finality of the Order dated April 3, 2002;10 and in
executing an affidavit in support of the criminal
complaint.
The Court in its Resolution dated January 24, 2005, in
G.R. No. 159130, resolved to docket the complaint
against Atty. Jimenez as a regular administrative
complaint; referred said Complaint to the Office of the
Bar Confidant (OBC); and required Atty. Jimenez to
comment.11
Respondent filed his Comment on April 6, 2005. He
contends that when he assisted the Heirs in filing a
criminal case against complainant, he was merely
fulfilling his legal duty to take the necessary steps to
protect the interests of his clients; that it cannot serve
as basis for filing an administrative case against
him.12 Respondent further cites Santiago v.
Rafanan13 where the Court absolved the respondent
lawyer from administrative liability in submitting an
affidavit in a preliminary investigation in defense of his
clients.
On January 31, 2007, the OBC submitted its Report and
Recommendation recommending that the administrative
complaint against Atty. Jimenez be dismissed for lack of
merit.14
The Court agrees with the OBC that respondent is not
guilty of forum shopping. Records show that respondent,
as counsel for the heirs of the late Luz J. Henson, filed a
special civil action docketed as CA-G.R. SP No. 70349
assailing the Order of March 12, 2002 appointing the
accounting firm of Alba, Romeo and Co. as auditor; and,
a regular appeal docketed as CA-G.R. SP No. 71488
assailing the Order of April 3, 2002, insofar as it directed
the payment of commission to complainant. It is evident
that there is identity of parties but different causes of
action and reliefs sought. Hence, respondent is not
guilty of forum shopping.15 The Court likewise finds no
fault on the part of respondent in executing an affidavit
in support of the criminal complaint as held in
the Santiago case.
However, there is sufficient ground in support of
complainant’s claim that respondent violated Rule 19.01
of the Code of Professional Responsibility. Records reveal
that before respondent assisted the Heirs in filing the
criminal complaint against herein complainant, he sent
demand letters to the latter to comply with the Order of
Judge Tipon to deliver the residue of the estate to the
heirs of the late Luz J. Henson. Considering that
complainant did not reply to the demand letters,
respondent opted to file said criminal complaint in behalf
of his clients for refusal to obey the lawful order of the
court.
The Order referred to is the third part of the assailed
Order dated April 3, 2002 which directs complainant to
deliver the residue to the Heirs in proportion to their
shares. As aptly pointed out by complainant, respondent
should have first filed the proper motion with the RTC for
execution of the third part of said Order instead of
immediately resorting to the filing of criminal complaint
against him. A mere perusal of the rest of the Order
dated April 3, 2002 readily discloses that the approval of
the report of complainant as Special Administrator was
suspended prior to the audit of the administration of
complainant. Consequently, the RTC would still have to
determine and define the residue referred to in the
subject Order. The filing of the criminal complaint was
evidently premature.
Respondent claims that he acted in good faith and in fact,
did not violate Rule 19.01 because he assisted the Heirs
in filing the criminal complaint against herein
complainant after the latter ignored the demand letters
sent to him; and that a lawyer owes his client the
exercise of utmost prudence and capability. The Court is
not convinced. Fair play demands that respondent
should have filed the proper motion with the RTC to
attain his goal of having the residue of the estate
delivered to his clients and not subject complainant to a
premature criminal prosecution.
As held in Suzuki v. Tiamson:16
Canon 19 of the Code of Professional Responsibility
enjoins a lawyer to represent his client with zeal.
However, the same Canon provides that a lawyer’s
performance of his duties towards his client must be
within the bounds of the law. Rule 19.01 of the same
Canon requires, among others, that a lawyer shall
employ only fair and honest means to attain the lawful
objectives of his client. Canon 15, Rule 15.07 also obliges
lawyers to impress upon their clients compliance with the
laws and the principle of fairness. To permit lawyers to
resort to unscrupulous practices for the protection of the
supposed rights of their clients is to defeat one of the
purposes of the state – the administration of justice.
While lawyers owe their entire devotion to the interest of
their clients and zeal in the defense of their client’s right,
they should not forget that they are, first and foremost,
officers of the court, bound to exert every effort to assist
in the speedy and efficient administration of justice.17
Although respondent failed to live up to this expectation,
there is no evidence that he acted with malice or bad
faith. Consequently, it is but fit to reprimand respondent
for his act of unfair dealing with complainant. It must be
stressed that disbarment is the most severe form of
disciplinary sanction, and, as such, the power to disbar
must always be exercised with great caution for only the
most imperative reasons and in clear cases of
misconduct affecting the standing and moral character
of the lawyer as an officer of the court and a member of
the bar. Accordingly, disbarment should not be decreed
where any punishment less severe – such as reprimand,
suspension, or fine – would accomplish the end
desired.18
WHEREFORE, Atty. Jacinto D. Jimenez is
found guilty of and REPRIMANDED for violation of
Rule 19.01 of the Code of Professional Responsibility.
SO ORDERED.
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CASES BATCH # 5
G.R. No. 179892-93 January 30, 2009
ATTY. VICTORIANO V. OROCIO, Petitioner,
vs.
EDMUND P. ANGULUAN, LORNA T. DY and
NATIONAL POWER CORPORATION, Respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a Petition1 for Review on Certiorari under
Rule 45 of the Rules of Court seeking to set aside the
Resolution2 dated 31 October 2006, Decision3 dated 29
January 2007, and Resolution4 dated 27 September
2007, of the Court of Appeals in CA-G.R. SP Nos. 95786
and 95946.
The facts culled from the records are as follows:
On 26 September 1978, the National Power Corporation
Board of Directors (NAPOCOR Board), pursuant to its
specific power and duty to fix the compensation,
allowance and benefits of the NAPOCOR employees
under Section 6(c) of Republic Act No. 6395, as
amended, passed Resolution No. 78-119 approving the
grant of a monthly welfare allowance equivalent to 10%
of an employee’s basic pay to all NAPOCOR employees
effective 1 October 1978.5Pursuant thereto, the
NAPOCOR Welfare Plan Committee, renamed and
reconstituted later on as the NAPOCOR Welfare Fund
Board of Trustees (NAPOCOR-WFBT), issued and
promulgated a charter for the NAPOCOR Welfare Fund
which includes the following provisions:
ARTICLE VII
TERMINATION/AMENDMENT OF THE PLAN
"Section 1. Termination/Amendment of the Plan – The
Board of Directors may amend, revise, repeal any or all
of the provisions herein contained and/or terminate the
Plan, subject to the pertinent provisions of the Trust
Agreement.
Section 2. Payment of Member’s share – In the event of
termination of the Plan, the balance to the credit of each
member and the General Reserve for Employee Benefits
shall be paid to the members in full. The accumulated
amount in the General Reserve for Employee Benefits
shall be distributed among the members in the
proportion to the amount outstanding to their credit as
of the time of termination.6
The NAPOCOR Board subsequently passed Resolution
No. 82-172 fixing a NAPOCOR employee’s contribution
to the NAPOCOR Welfare Fund in a sum equivalent to 5%
of his basic pay.7
Almost two decades thereafter, on 8 June 2001,
Congress passed Republic Act No. 9136, otherwise
known as the Electric Power Industry Reform Act
(EPIRA). EPIRA directed the restructuring of the power
industry which includes the reorganization of NAPOCOR.
Following the directive of EPIRA, the NAPOCOR Board
passed Resolution No. 2003-43 on 26 March 2003
abolishing the NAPOCOR Welfare Fund Department and
other departments, and dissolving the NAPOCOR Welfare
Fund upon the effectivity of EPIRA on 26 June
2001.8 Consequently, some of the employees in the
NAPOCOR Welfare Fund Department and in other
departments (who were also members of the NAPOCOR
Welfare Fund) resigned, retired or separated from
service. Thereafter, the liquidation and dissolution
process for the NAPOCOR Welfare Fund commenced.
On 11 May 2004, the NAPOCOR-WFBT, with authority
from the Commission on Audit, approved Resolution No.
2004-001 authorizing the release of ₱184 million (which
represented 40% of the liquid assets of NAPOCOR
Welfare Fund in the total amount of ₱462 million as of
16 April 2004) for distribution to the NAPOCOR Welfare
Fund members who resigned, retired, or
separated upon the effectivity of EPIRA on 26 June 2001
(EPIRA separated members).9
Pursuant to Resolution No. 2004-001, herein respondent
Edmund P. Anguluan (Anguluan), as Ex-
Officio Chairman of NAPOCOR-WFBT, issued a EPIRA separated members (those who ceased to
memorandum on 17 May 2004 to implement the release
of ₱184 million only to the EPIRA separated members to
the exclusion of the NAPOCOR employees (who were also
members of the NAPOCOR Welfare Fund) who have
resigned, retired, or separated prior to the effectivity of
EPIRA (non-EPIRA separated members).10
This prompted Mrs. Perla A. Segovia (Segovia), former
Vice-President of Human Resources and Administration
and former Ex-Officio Chairman of the NAPOCOR-WFBT,
in behalf of the 559 non-EPIRA separated members and
in her own personal capacity, to write a letter to Mr.
Rogelio M. Murga, then NAPOCOR President, demanding
their equal shares in the remaining assets of the
NAPOCOR Welfare Fund and access to information and
records thereof.11
On 13 July 2004, there being no action or response on
her letter, Segovia, together with Mrs. Emma C. Baysic
(Baysic), former President of the NAPOCOR Employees
Association and former member of the NAPOCOR-WFBT,
in their personal capacities and on behalf of the 559 non-
EPIRA separated members, filed with the Quezon City
Regional Trial Court (RTC), Branch 217, a Petition
for Mandamus, Accounting and Liquidation with a Prayer
for the Issuance of Temporary Restraining Order and
Injunction against respondents NAPOCOR, the NAPOCOR
Board, Anguluan (as NAPOCOR Vice-President, Human
Resources, Administration and Finance Department) and
Lorna T. Dy (as NAPOCOR Senior Department Manager
on Finance).12 The Petition was docketed as Civil Case
No. Q04-53121.
Segovia, Baysic and the 559 non-EPIRA separated
members were represented in Civil Case No. Q04-53121
by petitioner Atty. Victoriano V. Orocio under a "Legal
Retainer Agreement"13 dated 1 September 2004,
pertinent portions of which are reproduced below:
SUBJECT: Petition for Mandamus with Damages
Temporary Restraining Order/Injunction, etc. with the
Court "NPC RETIREES versus NPC, NP Board of Directors,
et. al. before the RTC Quezon City for the
payment/settlement of their claims for NPC Welfare Fund
(P462 Million assets and other assets liquid or non-
liquid).
Dear Ms. Segovia and Ms. Baysic:
In connection with the above-stated subject, hereunder
are our terms and conditions, to wit:
1. No acceptance fee;
2. All costs of litigation ([filing] and docket fees, etc.),
miscellaneous and out-of-pocket expenses the
prosecution of said action shall be for the account of the
clients;
3. No appearance/meeting fee;
4. Contingency or success fees of fifteen percent (15%)
of whatever amounts/value of assets (liquid and/or non-
liquid) are recovered;
5. This Retainer Agreement serves as Legal Authority for
the Law Firm to receive and/or collect its
contingency/success fee without further demand.
On 22 February 2006, the parties in the above-
mentioned case, duly assisted by their respective
counsels, executed a Compromise Agreement14 whereby
they agreed to amicably settle their dispute under the
following terms and conditions:
COMPROMISE AGREEMENT
xxxx
WHEREAS, the parties have agreed to settle the instant
case amicably.
PREMISES CONSIDERED, the parties herein have agreed
as follows:
1. Both the NPC EPIRA separated members (those
members of the Welfare Fund affected by the
EPIRA law and ceased to be members of the
Welfare Fund anytime from June 26, 2001
[effectivity of the EPIRA LAW] to March 1, 2003
[implementation of the EPIRA law and date of
abolition of the Welfare Fund]) and NPC non-
be members of the Fund prior to June 26, 2001)
18 | P a g e
 LEGAL PROFESSION
CASES BATCH # 5
are entitled to "Earnings Differential" of the NPC
Welfare Fund;
2. "Corrected Earnings Differential" refers to a
benefit which is a result of re-computation of
Member’s Equity Contributions and Earnings using
the correct rates of return vis-à-vis what was used
when they were separated. Period covered by the
discrepancy is from 1989 to 2003. Hence, affected
are WF members separated anytime within the
period 1989 to 2003;
xxxx
4. The Corrected Earnings Differential of all affected WF
separated members shall earn 6% legal interest per
annum computed from the separation of the members
from service up to March 31, 2006 for all the non-EPIRA
separated members and May 31, 2006 for the EPIRA
separated members;
5. As of March 2006, the estimated Corrected
Earnings Differential for the non-EPIRA separated
members is ₱119.196 Million while for the EPIRA
separated members is ₱173.589 Million or a total
of ₱292.785 Million, inclusive of the 6% legal
interest;
6. In conformity with the Retainer Agreement
dated September 1, 2004 between Mrs. Perla A.
Segovia, Mrs. Emma Y. Baysic and Atty. Victoriano
V. Orocio; and Irrevocable Special Power of
Attorney dated July 20, 2005 executed by Mrs.
Perla A. Segovia and Mrs. Emma Y. Baysic in favor
of Atty. Victoriano V. Orocio, counsel for
petitioners, (copies attached as Annexes "A" and
"B" respectively), 15% attorney’s fees shall be
deducted from the corresponding Corrected
Earnings Differential of those non-EPIRA
separated members who have already executed
the corresponding Special Power of
Attorney/Written Authority for the
deduction/payment of said attorney’s fees, and
shall be paid to V.V. Orocio and Associates Law
Office, represented by Atty. Victoriano V. Orocio,
as compensation for his legal services as counsel
for the non-EPIRA separated members subject to
deduction of applicable taxes;
xxxx
15. The parties herein shall exert their best effort in
order that the terms and conditions of this agreement
are implemented and complied with in the spirit of
fairness, transparency and equity;
16. This Agreement is not contrary to law, good customs,
public order or public policy and is voluntarily entered
into by the parties of their own free will.15
The parties filed with the RTC the very next day, 23
February 2006, a Joint Motion before the RTC for the
approval of their Compromise Agreement.16 The RTC
rendered a Decision on 3 April 2006 granting the parties’
Joint Motion and approving the said Compromise
Agreement.17
On 10 April 2006, petitioner filed with the RTC a Motion
for Approval of Charging (Attorney’s) Lien. Petitioner
asked the RTC to issue an order declaring him entitled to
collect an amount equivalent to 15% of the monies due
the non-EPIRA separated members as his attorney’s fees
in conformity with the Compromise Agreement.18 In an
Order dated 15 May 2006, the RTC granted petitioner’s
motion and decreed that he is entitled to collect the
amount so demanded.19
On 20 June 2006, petitioner filed with the RTC a Motion
for the Issuance of a Writ of Execution of the RTC Order
dated 15 May 2006.20 Respondents opposed the motion
on the ground that there was no stipulation in the
Compromise Agreement to the effect that petitioner is
entitled to collect an amount equivalent to 15% of the
monies due the non-EPIRA separated members.
Respondents contended that the amount of
₱119,196,000.00 due the non-EPIRA separated
members under the compromise agreement was a mere
estimate and, as such, cannot be validly used by
petitioner as basis for his claim of 15% attorney’s fees.21
The RTC issued an Order on 25 July 2006 granting
petitioner’s Motion22 and, accordingly, a Writ of
Execution of the RTC Order dated 15 May 2006 was
issued on 26 July 2006. Pursuant to the said Writ of
Execution, RTC Branch Sheriff Reynaldo B. Madoloria
(Sheriff Madoloria) issued a Notice of Garnishment to Ms.
Aurora Arenas (Arenas), Assistant Vice-President and
Business Manager of the Philippine National Bank (PNB)-
NAPOCOR Extension Office, Diliman, Quezon City, and to
Mr. Emmanuel C. Mendoza (Mendoza), Unit Head of the
Landbank of the Philippines-NAPOCOR Extension Office,
Diliman, Quezon City.23
Respondents filed a Motion for Reconsideration of the
RTC Order dated 25 July 2006.24
On 12 August 2006, Sheriff Madoloria served to Arenas
an "Order for Delivery of Money."25
Respondents Anguluan and Dy filed before the Court of
Appeals on 22 August 2006 a Petition
for Certiorari under Rule 65 of the Rules of Court,
docketed as CA-G.R. SP No. 95786, assailing the RTC
Order dated 25 July 2006 and praying that a temporary
restraining order and/or a writ of preliminary injunction
be issued enjoining the implementation of the said RTC
order.26 Respondent NAPOCOR filed with the Court of
Appeals on the same date another Petition
for Certiorari under Rule 65 of the Rules of Court,
docketed as CA-G.R. SP No. 95946, also challenging the
RTC Order dated 25 July 2006 and praying that it be set
aside and a temporary restraining order and/or a writ of
preliminary injunction be issued prohibiting the RTC from
enforcing the said order and the corresponding writ of
execution and notice of garnishment.27 Subsequently,
respondent NAPOCOR filed a Motion to Consolidate CA-
G.R. SP No. 95946 with CA-G.R. SP No. 95786 which was
granted by the appellate court.28
On 31 October 2006, the Court of Appeals issued a
Resolution granting respondents’ application for a TRO
and writ of preliminary injunction. It enjoined the RTC
from implementing its Order dated 25 July 2006 and the
corresponding writ of execution and notice of
garnishment during the pendency of CA-G.R. SP No.
95946 and No. 95786. Petitioner filed a motion for
reconsideration of the said resolution.29
On 29 January 2007, the Court of Appeals promulgated
its Decision annulling and setting aside: (1) the RTC
Order dated 25 July 2006; (2) the corresponding Writ of
Execution dated 26 July 2006; (3) the Notice of
Garnishment dated 28 July 2006; and (4) Order for
Delivery of Money dated 10 August 2006. It also held
that petitioner was entitled only to an amount of
₱1,000,000.00 as attorney’s fees on the basis
of quantum meruit.
The Court of Appeals held that the amount of
₱17,794,572.70 sought to be collected by petitioner as
attorney’s fees, equivalent to 15% of the
₱119,196,000.00 estimated corrected earnings
differential for non-EPIRA separated members, was
excessive based on the following reasons: (1) the
corrected earnings differential in the amount of
₱119,196,000.00 due the non-EPIRA separated
members was a mere estimate and was hypothetical.
Thus, petitioner was unjustified in using said amount as
basis for his 15% attorney’s fees; (2) there was hardly
any work by petitioner since (a) the compromise
agreement was reached without trial or hearing on the
merits; (b) there was no issue regarding the release and
distribution of the NAPOCOR Welfare Fund to the non-
EPIRA separated members as the enactment of EPIRA,
not the efforts of petitioner, made such distribution
possible; (c) there was no issue on how much each non-
EPIRA separated members would receive because the
amount of their respective contribution was duly
recorded by the respondents; (d) respondents have
already distributed the corrected earnings differential to
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some non-EPIRA separated members, and have given
petitioner his corresponding partial attorney’s fees
amounting to ₱3,512,007.32; (e) most of the non-EPIRA
separated members have not yet received their share
under the compromise agreement but petitioner, who
was merely their agent, was already given partial
payment as attorney’s fees; (f) the amount of
₱17,794,572.70 represents "only less than one fourth
partial release of the NAPOCOR Welfare Fund which
means that the equivalent of three-fourths more would
be demanded [by petitioner] in the future;" and (3) the
money claim of the non-EPIRA separated members was
settled through a compromise agreement and not won
by petitioner in a trial on the merits.
The Court of Appeals determined that petitioner was
entitled only to an amount of ₱1,000,000.00 as
attorney’s fees on the basis of quantum meruit.
However, since petitioner already received
₱3,512,007.32 from respondents as partial payment of
his supposed 15% attorney’s fees, it ruled that such
amount was more than sufficient and petitioner was not
entitled to claim anymore the additional amount of
₱14,282,565.38. The fallo of the Decision of the Court of
Appeals reads:
WHEREFORE, premises considered, the assailed July
25, 2006 Order, the July 26, 2006 Writ of Execution, the
July 28, 2006 Notice of Garnishment, and the August 10,
2006 Order of Delivery of Money are hereby ANNULLED
and SET ASIDE, and a new one is
ordered, CAPPING at ₱3,512,007.32, the amount
manifested to have already been received from the
welfare fund as attorneys fees, as the maximum
amount that may be billed or collected as attorneys fees
from the whole welfare fund – which amount is NOTED
to have already exceeded what this court had fixed at
₱1,000,000.00 as the reasonable amount, on quantum
meruit, that may be collected as attorneys’ fees,
pursuant to the guidelines codified in Rule 20.01, Canon
20 of the Code of Professional Responsibility.30
Petitioner filed a motion for reconsideration of the
aforementioned Decision but this was denied by the
Court of Appeals in its Resolution dated 27 September
2007.31
Hence, petitioner brought the instant petition before us
assigning the following errors:
I.
THE COURT OF APPEALS ERRED IN RULING THAT
RESPONDENTS EDMUND P. ANGULUAN, LORNA T. DY
AND NATIONAL POWER CORPORATION (NPC) ARE
ENTITLED TO [PRELIMINARY] INJUNCTION AS THEY
HAVE MATERIAL AND SUBSTANTIAL RIGHTS, WHICH
ARE CLEAR AND UNMISTAKABLE, i.e. RIGHTS OF BEING
CLIENTS TO QUESTION THE REASONABLENESS OF THE
ATTORNEY’S FEES OF A LAWYER. THIS ALLEGED RIGHT
IS NON-EXISTENT AND IN FACT FABRICATED
CONSIDERING THAT THE RESPONDENTS ARE NOT THE
CLIENTS AT ALL OF PETITIONER, ATTY. VICTORIANO V.
OROCIO;
II.
THE COURT OF APPEALS ERRED IN RULING THAT THE
FIFTEEN PERCENT (15%) CONTINGENCY/SUCCESS FEE
OF PETITIONER VICTORIANO V. OROCIO IS
UNCONSCIONABLE AND UNREASONABLE DESPITE THE
UNDISPUTED FACT THAT THE SAID ATTORNEY’S FEES
IS AMONG THE TERMS AND CONDITIONS OF A
JUDICIALLY APPROVED COMPROMISE AGREEMENT AND
COURT ORDER APPROVING HIS CHARGING LIEN,
WHICH AGREEMENT AND ORDER HAVE ALREADY
BECOME FINAL AND EXECUTORY.32
In his first assigned error, petitioner assails the
Resolution dated 31 October 2006 of the Court of
Appeals granting respondents’ application for a writ of
preliminary injunction.lawphil.net He claims that the
Court of Appeals issued a writ of preliminary injunction
in favor of respondents because petitioner allegedly
violated respondents’ material and substantial right as
petitioner’s clients to pay only reasonable attorney’s
fees. Petitioner asserts that none of the respondents is
his client in the present case; that even respondents
themselves have not alleged or claimed that they are his
clients; that the amount of attorney’s fees he claimed
was chargeable on a portion of the NAPOCOR Welfare
Fund due his clients, the non-EPIRA separated
employees; that if anyone would be injured by his claim
of attorney’s fees, it would be his clients, the non-EPIRA
separated employees, and not respondents; that none of
his clients has questioned or complained about the
amount of attorney’s fees he is claiming; that
respondents are not the real parties-in-interest and at
most are merely nominal parties-in-interest; that as
mere nominal parties-in-interest, respondents are not
entitled to a writ of preliminary injunction under the
Rules of Court; and that the requisites for the proper
issuance of a writ of preliminary injunction are lacking in
the instant case.33
In its Resolution dated 31 October 2006, the Court of
Appeals granted respondents’ application for a writ of
preliminary injunction based on the following reasons:
This Court finds that [herein respondents] have prima
facie established [their] compliance with strict
requirements for issuance of a writ of preliminary
injunction in this case. Under the leading case
of Valencia vs. Court of Appeals, 352 SCRA 72 (2001),
the requisites of preliminary injunction are as follows:
(a) the invasion of the right of [herein respondents] is
material and substantial; (b) the right of [herein
respondents] is clear and unmistakable; and (c) there is
an urgent and paramount necessity for the writ to
prevent serious irreparable damage to [herein
respondents].
The right of [herein respondents] alleged to have
been invaded is that a client has the right to pay
only a reasonable amount of attorney’s fees and
only for services actually rendered – which is clearly
and unmistakably available to all clients. What [herein
respondents] are claiming is a material and substantial
right. This Court finds that [herein respondents]
have prima facie established an urgent and paramount
necessity for the issuance of the writ of preliminary
injunction prayed for, to avoid irreparable injury to
[herein respondents]. x x x.
As can be gleaned from the foregoing, the basis of the
Court of Appeals in granting the writ was petitioner’s
alleged violation or invasion of respondents’ right, as
petitioner’s clients, to pay only a reasonable amount of
attorney’s fees to, and only for services actually
rendered by, petitioner.
The Court of Appeals is clearly mistaken.
It should be made clear that petitioner is the counsel for
the non-EPIRA separated members in the latter’s quest
to claim their shares in the NAPOCOR Welfare Fund.
Petitioner was never hired or employed by respondents
as their counsel in the cases at bar. Respondents
themselves do not claim or allege that they are clients of
petitioner. In fact, petitioner is representing the non-
EPIRA separated members, the opposing party to the
respondents in the present cases.
Further, the amount of attorney’s fees being claimed by
petitioner is chargeable to the ₱119,196,000.00
corrected earnings differential of his clients, the non-
EPIRA separated members. Respondents have actually
partially distributed such amount to some non-EPIRA
separated members pursuant to the Compromise
Agreement. In other words, the non-EPIRA separated
members are the lawful owners/beneficiaries of the
amount from which petitioner’s attorney’s fees had been
and shall be taken.
Hence, if anyone would be injured by petitioner’s claim
for attorney’s fees, it would be his clients, the non-EPIRA
separated members, and not respondents. It appears,
however, that none of the non-EPIRA separated
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members has questioned or complained about
petitioner’s claim for attorney’s fees.
A preliminary injunction is an order granted at any stage
of an action or proceeding prior to the judgment or final
order, requiring a party or a court, agency or a person
to refrain from a particular act or acts.34 A writ of
preliminary injunction is a provisional remedy, an
adjunct to a main suit, as well as a preservative remedy
issued to preserve the status quo of the things subject
of the action or the relations between the parties during
the pendency of the suit.35For a writ of preliminary
injunction to issue, the applicant is tasked to establish
and convincingly show the following: (1) a right
in esse or a clear and unmistakable right to be
protected; (2) a violation of that right; and (3) there is
an urgent and permanent act and urgent necessity for
the writ to prevent serious damage.36
A clear legal right means one clearly founded on or
granted by law or is enforceable as a matter of law.37 The
existence of a right violated is a prerequisite to the
granting of a writ of preliminary injunction.38 A writ of
preliminary injunction will not issue to protect a right not
in esse and which may never arise.39 It may be issued
only if the applicant has clearly shown an actual existing
right that should be protected during the pendency of
the principal action.40 In the absence of a clear legal
right, or when the applicant’s right or title is doubtful or
disputed, preliminary injunction is not proper.41
It is evident from the foregoing that respondents do not
have a clear right or right in esse to pay only a
reasonable amount of attorney’s fees to the petitioner
because such right belongs solely to petitioner’s clients,
the non-EPIRA separated members. There can be no
violation of a right which does not exist in the first place.
Also, there was no necessity for the writ of preliminary
injunction since the non-EPIRA separated members do
not claim any damage or injury caused by the execution
of the RTC Order dated 15 May 2006. Even assuming
that respondents would probably suffer damages as
administrators or custodians of the NAPOCOR Welfare
Fund if the writ of preliminary injunction was not
granted, our ruling would still be the same. We have held
that the possibility of irreparable damage without proof
of an actual existing right is not a ground for the issuance
of a writ of preliminary injunction.42Given these
considerations, we hold that the issuance by the Court
of Appeals of a writ of preliminary injunction in favor of
respondents in its Resolution, dated 31 October 2006,
was improper.lawphil.net
With regard to his second assigned error, petitioner
maintained that his claim for attorney’s fees equivalent
to 15% of the ₱119,196,000.00 estimated corrected
earnings differential due the non-EPIRA separated
members was not unreasonable or unconscionable
because such amount was expressly agreed upon in the
Compromise Agreement between the non-EPIRA
separated members and respondents. The Compromise
Agreement was submitted to the RTC for approval
through the joint motion of the non-EPIRA separated
members and respondents, and the RTC had rendered a
final and executory decision approving the same. By
virtue of res judicata, the Court of Appeals cannot alter
or change the terms of the Compromise Agreement by
prohibiting petitioner from collecting his stipulated
amount of attorney’s fees.43
Petitioner also avers that the amount of ₱17,794,572.70,
which is equivalent to 15% of the ₱119,196,000.00
estimated corrected earnings differential due the non-
EPIRA separated members from the NAPOCOR Welfare
Fund is already the total, not partial, amount he is
claiming as attorney’s fees; that the ₱119,196,000.00
estimated corrected earnings differential due the non-
EPIRA separated members from the NAPOCOR Welfare
Fund is not hypothetical, such amount having been
actually computed and fixed by respondents themselves
without the participation of petitioner and his clients, the
non-EPIRA separated members; that he did a lot of legal
work and utilized his legal skills on discovery procedures
to force respondents to enter into the Compromise
Agreement with the non-EPIRA separated members;
that the passage of EPIRA merely paved the way for the
distribution of the remaining assets of the NAPOCOR
Welfare Fund; that if not for his legal work and skills, the
non-EPIRA separated members would not have received
their lawful shares in the remaining assets of the
NAPOCOR Welfare Fund; and that his claim for 15%
attorney’s fees is supported by jurisprudence.44
An attorney’s fee, in its ordinary concept, refers to the
reasonable compensation paid to a lawyer for the legal
services he has rendered to a client.45 The client and his
lawyer may enter into a written contract whereby the
latter would be paid attorney’s fees only if the suit or
litigation ends favorably to the client. This is called a
contingency fee contract. The amount of attorney’s fees
in this contract may be on a percentage basis, and a
much higher compensation is allowed in consideration of
the risk that the lawyer may get nothing if the suit
fails.46 In the case at bar, the non-EPIRA separated
members and petitioner voluntarily entered into a
contingency fee contract whereby petitioner did not
receive any acceptance fee or appearance/meeting fee.
The non-EPIRA separated members expressly agreed to
pay petitioner "contingency or success fees of fifteen
percent (15%) of whatever amount/value of assets
(liquid and/or non-liquid)" recovered; and authorized
petitioner’s law firm "to receive and/or collect its
contingency/success fee without further demand."
Contingent fee contracts are permitted in this jurisdiction
because they redound to the benefit of the poor client
and the lawyer "especially in cases where the client has
meritorious cause of action, but no means with which to
pay for legal services unless he can, with the sanction of
law, make a contract for a contingent fee to be paid out
of the proceeds of litigation. Oftentimes, the contingent
fee arrangement is the only means by which the poor
clients can have their rights vindicated and upheld."
Further, such contracts are sanctioned by Canon 13 of
the Canons of Professional Ethics.47
However, in cases where contingent fees are sanctioned
by law, the same should be reasonable under all the
circumstances of the case, and should always be subject
to the supervision of a court, as to its reasonableness,
such that under Canon 20 of the Code of Professional
Responsibility, a lawyer is tasked to charge only fair and
reasonable fees.48
A stipulation on a lawyer’s compensation in a written
contract for professional services ordinarily controls the
amount of fees that the contracting lawyer may be
allowed, unless the court finds such stipulated amount
to be unreasonable or unconscionable. If the stipulated
amount for attorney’s fees is excessive, the contract may
be disregarded even if the client expressed their
conformity thereto.49 Attorney’s fees are unconscionable
if they affront one’s sense of justice, decency or
reasonableness, or if they are so disproportionate to the
value of the services rendered. In such a case, courts are
empowered to reduce the attorney’s fee or fix a
reasonable amount thereof taking into consideration the
surrounding circumstances and the established
parameters.50
The principle of quantum meruit (as much as he
deserves) may be a basis for determining the reasonable
amount of attorney’s fees. Quantum meruit is a device
to prevent undue enrichment based on the equitable
postulate that it is unjust for a person to retain benefit
without paying for it. It is applicable even if there was a
formal written contract for attorney’s fees as long as the
agreed fee was found by the court to be unconscionable.
In fixing a reasonable compensation for the services
rendered by a lawyer on the basis of quantum meruit,
factors such as the time spent, and extent of services
rendered; novelty and difficulty of the questions
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involved; importance of the subject matter; skill
demanded; probability of losing other employment as a
result of acceptance of the proferred case; customary
charges for similar services; amount involved in the
controversy and the benefits resulting to the client;
certainty of compensation; character of employment;
and professional standing of the lawyer, may be
considered.51
It appears that the non-EPIRA separated members chose
petitioner as their counsel because the latter, as former
member of the NAPOCOR-WFBT for two terms or four
years, is familiar and knowledgeable on the operation of
the NAPOCOR Welfare Fund.52 Yet, according to the
contingency fee contract agreement between petitioner
and the non-EPIRA separated members, petitioner
received no acceptance fee and appearance/meeting fee
when he took on the non-EPIRA separated members’
case. Petitioner’s attorney’s fees were absolutely
dependent on the success of non-EPIRA separated
members’ claim on the NAPOCOR Welfare Fund. Despite
these circumstances, petitioner worked diligently in
advocating the claims of the non-EPIRA separated
members against respondents as shown by the
following: (1) petitioner took pains in verifying the
identity and claim of each of the 559 non-EPIRA
separated members on the NAPOCOR Welfare Fund; (2)
petitioner prepared and filed a well-researched and well-
argued petition with the RTC for the claims of the non-
EPIRA separated members;53 (3) he prepared and
presented several witnesses and numerous pertinent
documents before the RTC in support of their application
for the issuance of a temporary restraining order and/or
writ of preliminary injunction against respondents’ plan
to exclude the non-EPIRA separated members from
receiving their shares in the NAPOCOR Welfare Fund; (4)
he participated, as non-EPIRA separated members’
counsel, in the conduct of several hearings regarding the
said application for the issuance of temporary restraining
order and/or writ of preliminary injunction;54 (5) he
obtained a temporary restraining order and a writ of
preliminary injunction from the RTC which
enjoined/prohibited respondents from excluding the
non-EPIRA separated members from their shares in the
NAPOCOR Welfare Fund;55 (6) he held numerous
conferences with the non-EPIRA separated members
wherein he apprised the latter of the status of their
claims and his legal strategies pertinent thereto;56 and
(7) he exerted utmost efforts which eventually led to the
execution of the Compromise Agreement between the
non-EPIRA separated members and respondents.
By reason of petitioner’s dedication and persistence as
can be gleaned above, respondents finally agreed to
settle amicably with the non-EPIRA separated members
as regards the latter’s claim for shares in the NAPOCOR
Welfare Fund by virtue of the Compromise Agreement.
Undoubtedly, were it not for petitioner’s vigilance and
zeal, respondents would not have executed the
Compromise Agreement with the non-EPIRA separated
members. Hence, it is fair to conclude that petitioner was
entitled to a reasonably high compensation.
However, petitioner’s attorney’s fees in the amount of
₱17,794,572.70 or equivalent to 15% of the ₱
119,196,000.00 corrected earnings differential of the
non-EPIRA separated members should be equitably
reduced.
In NPC Drivers and Mechanics Association (NPC DAMA)
v. The National Power Corporation (NPC),57 we awarded
separation pay in lieu of reinstatement plus backwages
to several NPC employees because they were illegally
dismissed by the NPC. The NPC employees were
represented by a certain Atty. Cornelio P. Aldon (Atty.
Aldon) and Atty. Victoriano V. Orocio, (the petitioner in
the instant cases) under a legal retainer agreement
which provides: (1) no acceptance fee; (2)
miscellaneous/out of pocket expenses in the amount of
₱25,000.00; and (3) twenty-five percent (25%) of
whatever amounts/monies are recovered in favor of said
NPC personnel contingent on the success of the
case. Atty. Aldon and Atty. Orocio filed a Motion for
Approval of Charging (Attorney’s) Lien pursuant to the
legal retainer agreement. Although we granted the said
motion, we reduced the amount of attorney’s fees which
was chargeable on the monies recoverable by the NPC
employees from 25% to 10% because:
While we duly recognize the right of Atty. Aldon and Atty.
Orocio to a charging lien on the amounts recoverable by
petitioners pursuant to our 26 September 2006 Decision,
nevertheless, we deem it proper to reduce the same.
Under Section 24, Rule 138 of the Rules of Court, a
written contract for services shall control the amount to
be paid therefor unless found by the court to be
unconscionable or unreasonable. The amounts which
petitioners may recover as the logical and necessary
consequence of our Decision of 26 September 2006, i.e.,
backwages and separation pay (in lieu of reinstatement),
are essentially the same awards which we grant to
illegally dismissed employees in the private sector. In
such cases, our Labor Code explicitly limits attorney’s
fees to a maximum of 10% of the recovered amount.
Considering by analogy the said limit on attorney’s fees
in this case of illegal dismissal of petitioners by
respondent NPC, a government-owned and controlled
corporation; plus the facts that petitioners have suffered
deprivation of their means of livelihood for the last five
years; and the fact that this case was originally filed
before us, without any judicial or administrative
proceedings below; as well as the fundamental ethical
principle that the practice of law is a profession and not
a commercial enterprise, we approve in favor of Atty.
Aldon and Atty. Orocio a charging lien of 10% (instead
of 25%) on the amounts recoverable by petitioners from
NPC pursuant to our Decision dated 26 September 2006.
The abovementioned case may be reasonably applied by
analogy in the instant case since they have substantially
similar circumstances. In the case before us, although
the non-EPIRA separated members were not illegally
dismissed, they were, nevertheless, separated from
work by reason of EPIRA. In addition, the non-EPIRA
separated members had a legal retainer
agreement/contingency fee contract with petitioner as
their counsel.
It should also be emphasized that the practice of law is
a profession not a moneymaking venture. A lawyer is not
merely the defender of his client’s cause and a trustee of
his client’s cause of action and assets; he is also, and
first and foremost, an officer of the court and participates
in the fundamental function of administering justice in
society. It follows that a lawyer’s compensation for
professional services rendered is subject to the
supervision of the court, not just to guarantee that the
fees he charges and receives remain reasonable and
commensurate with the services rendered, but also to
maintain the dignity and integrity of the legal profession
to which he belongs. Upon taking his attorney’s oath as
an officer of the court, a lawyer submits himself to the
authority of the courts to regulate his right to charge
professional fees.58
Thus, taking into account the foregoing circumstances
and recognized principles, the 15% attorney’s fees of
petitioner should be reduced to 10%. As such,
petitioner is entitled to collect only, as attorney’s fees,
an amount equivalent to 10% of
the ₱119,196,000.00 or ₱11,919,600.00.
We note, however, that the compromise agreement was
partially implemented in the first week of April 2006 with
the payment of ₱23,416,000.00 to some non-EPIRA
separated members.59 Petitioner admitted having
already received an amount of ₱3,512,007.32 as his
attorney’s fees on the said partial payment of
₱23,416,000.00.60 Accordingly, the amount of
₱3,512,007.32 received by petitioner as attorney’s fees
should be deducted from the fixed 10% attorney’s fees
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or the amount of ₱11,919,600.00. Per computation,
petitioner is entitled to recover the amount
of ₱8,407,592.68 as attorney’s fees.
WHEREFORE, premises considered, the Resolution of
the Court of Appeals dated 31 October 2006 in CA-G.R.
SP Nos. 95786 and 95946 granting the issuance of a writ
of preliminary injunction is hereby ANNULLED and SET
ASIDE. The Decision and Resolution, dated 29 January
2007 and 27 September 2007, respectively, of the Court
of Appeals in CA-G.R. SP Nos. 95786 and 95946 are
hereby AFFIRMED with the MODIFICATION that
petitioner is entitled to recover attorney’s fees in the
amount of ₱8,407,592.68 on the corrected earnings
differential of the non-EPIRA separated members. No
costs.
SO ORDERED.
A.C. No. 5859 (Formerly CBD Case No. 421),
November 23, 2010
ATTY. CARMEN LEONOR M. ALCANTARA, VICENTE
P. MERCADO, et al., VS ATTY. EDUARDO C. DE VERA
PER CURIAM:
For our review is the Resolution[1]of the Board of
Governors of the Integrated Bar of the Philippines (IBP)
finding respondent Atty. Eduardo C. De Vera liable for
professional malpractice and gross misconduct and
recommending his disbarment.
The facts, as appreciated by the investigating
commissioner,[2]are undisputed.
The respondent is a member of the Bar and was the
former counsel of Rosario P. Mercado in a civil case filed
in 1984 with the Regional Trial Court of Davao City and
an administrative case filed before the Securities and
Exchange Commission, Davao City Extension Office.[3]
Pursuant to a favorable decision, a writ of execution
pending appeal was issued in favor of Rosario P.
Mercado. Herein respondent, as her legal counsel,
garnished the bank deposits of the defendant, but did
not turn over the proceeds
to Rosario. Rosario demanded that the respondent turn
over the proceeds of the garnishment, but the latter
refused claiming that he had paid part of the money to
the judge while the balance was his, as attorneys
fees. Such refusal prompted Rosario to file an
administrative case for disbarment against the
respondent.[4]
On March 23, 1993, the IBP Board of Governors
promulgated a Resolution holding the respondent guilty
of infidelity in the custody and handling of clients funds
and recommending to the Court his one-year suspension
from the practice of law.[5]
Following the release of the aforesaid IBP Resolution, the
respondent filed a series of lawsuits against the Mercado
family except George Mercado. The respondent also
instituted cases against the family corporation, the
corporations accountant and the judge who ruled against
the reopening of the case where respondent tried to
collect the balance of his alleged fee from Rosario. Later
on, the respondent also filed cases against the chairman
and members of the IBP Board of Governors who voted
to recommend his suspension from the practice of law
for one year. Complainants allege that the respondent
committed barratry, forum shopping, exploitation of
family problems, and use of intemperate language when
he filed several frivolous and unwarranted lawsuits
against the complainants and their family members,
their lawyers, and the family corporation.[6]They
maintain that the primary purpose of the cases is to
harass and to exact revenge for the one-year suspension
from the practice of law meted out by the IBP against
the respondent. Thus, they pray that the respondent be
disbarred for malpractice and gross misconduct under
Section 27,[7]Rule 138 of the Rules of Court.
In his defense the respondent basically offers a denial of
the charges against him.
He denies he has committed barratry by instigating or
stirring up George Mercado to file lawsuits against the
complainants. He insists that the lawsuits that he and
George filed against the complainants were not
harassment suits but were in fact filed in good faith and
were based on strong facts.[8]
Also, the respondent denies that he has engaged in
forum shopping. He argues that he was merely
exhausting the remedies allowed by law and that he was
merely constrained to seek relief elsewhere by reason of
the denial of the trial court to reopen the civil case so he
could justify his attorneys fees.
Further, he denies that he had exploited the problems of
his clients family. He argues that the case that he and
George Mercado filed against the complainants arose
from their perception of unlawful transgressions
committed by the latter for which they must be held
accountable for the public interest.
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Finally, the respondent denies using any intemperate,
vulgar, or unprofessional language. On the contrary, he
asserts that it was the complainants who resorted to
intemperate and vulgar language in accusing him of
extorting from Rosario shocking and unconscionable
attorneys fees.[9]
After careful consideration of the records of this case and
the parties submissions, we find ourselves in agreement
with the findings and recommendation of the IBP Board
of Governors.
It is worth stressing that
the practice of law is not a right but a privilege
bestowed by the State upon those who show that they
possess, and continue to possess, the qualifications
required by law for the conferment of such
privilege.[10] Membership in the bar is a privilege
burdened with conditions. A lawyer has the privilege and
right to practice law only during good behavior and can
only be deprived of it for misconduct ascertained and
declared by judgment of the court after opportunity to
be heard has been afforded him. Without invading any
constitutional privilege or right, an attorneys right to
practice law may be resolved by a proceeding to suspend
or disbar him, based on conduct rendering him unfit to
hold a license or to exercise the duties and
responsibilities of an attorney. It must be understood
that the purpose of suspending or disbarring an attorney
is to remove from the profession a person whose
misconduct has proved him unfit to be entrusted with the
duties and responsibilities belonging to an office of an
attorney, and thus to protect the public and those
charged with the administration of justice, rather than to
punish the attorney.[11]In Maligsa v. Cabanting,[12]we
explained that the bar should maintain a high standard
of legal proficiency as well as of honesty and fair
dealing. A lawyer brings honor to the legal profession by
faithfully performing his duties to society, to the bar, to
the courts and to his clients. To this end a member of
the legal profession should refrain from doing any act
which might lessen in any degree the confidence and
trust reposed by the public in the fidelity, honesty and
integrity of the legal profession. An attorney may be
disbarred or suspended for any violation of his oath or of
his duties as an attorney and counselor, which include
statutory grounds enumerated in Section 27, Rule 138
of the Rules of Court.
In the present case, the respondent committed
professional malpractice and gross misconduct
particularly in his acts against his former clients after the
issuance of the IBP Resolution suspending him from the
practice of law for one year. In summary, the respondent
filed against his former client, her family members, the
family corporation of his former client, the Chairman and
members of the Board of Governors of the IBP who
issued the said Resolution, the Regional Trial Court Judge
in the case where his former client received a favorable
judgment, and the present counsel of his former client, a
total of twelve (12) different cases in various fora which
included the Securities and Exchange Commission; the
Provincial Prosecutors Office of Tagum, Davao; the
Davao City Prosecutors Office; the IBP-Commission on
Bar Discipline; the Department of Agrarian Reform; and
the Supreme Court.[13]
In addition to the twelve (12) cases filed, the respondent
also re-filed cases which had previously been dismissed.
The respondent filed six criminal cases against members
of the Mercado family separately docketed as I.S. Nos.
97-135; 97-136; 97-137; 97-138; 97-139; and 97-
140. With the exception of I.S. No. 97-139, all the
aforementioned cases are re-filing of previously
dismissed cases.[14]
Now, there is nothing ethically remiss in a lawyer who
files numerous cases in different fora, as long as he does
so in good faith, in accordance with the Rules, and
without any ill-motive or purpose other than to achieve
justice and fairness. In the present case, however, we
find that the barrage of cases filed by the respondent
against his former client and others close to her was
meant to overwhelm said client and to show her that the
respondent does not fold easily after he was meted a
penalty of one year suspension from the practice of law.
The nature of the cases filed by the respondent, the fact
of re-filing them after being dismissed, the timing of the
filing of cases, the fact that the respondent was in
conspiracy with a renegade member of the complainants
family, the defendants named in the cases and the foul
language used in the pleadings and motions[15]all
indicate that the respondent was acting beyond the
desire for justice and fairness. His act of filing a barrage
of cases appears to be an act of revenge and hate driven
by anger and frustration against his former client who
filed the disciplinary complaint against him for infidelity
in the custody of a clients funds.
In the case of Prieto v. Corpuz,[16]the Court pronounced
that it is professionally irresponsible for a lawyer to file
frivolous lawsuits. Thus, we stated in Prieto,
Atty. Marcos V. Prieto must be sanctioned for filing this
unfounded complaint. Although no person should be
penalized for the exercise of the right to litigate,
however, this right must be exercised in good faith.[17]
As officers of the court, lawyers have a responsibility to
assist in the proper administration of justice. They do
not discharge this duty by filing frivolous petitions that
only add to the workload of the judiciary.
A lawyer is part of the machinery in the administration
of justice. Like the court itself, he is an instrument to
advance its ends the speedy, efficient, impartial, correct
and inexpensive adjudication of cases and the prompt
satisfaction of final judgments. A lawyer should not only
help attain these objectives but should likewise avoid
any unethical or improper practices that impede,
obstruct or prevent their realization, charged as he is
with the primary task of assisting in the speedy and
efficient administration of justice.[18]Canon 12 of the
Code of Professional Responsibility promulgated on 21
June 1988 is very explicit that lawyers must exert every
effort and consider it their duty to assist in the speedy
and efficient administration of justice.
Further, the respondent not only filed frivolous and
unfounded lawsuits that violated his duties as an officer
of the court in aiding in the proper administration of
justice, but he did so against a former client to whom he
owes loyalty and fidelity. Canon 21 and Rule 21.02 of
the Code of Professional Responsibility[19]provides:
CANON 21 - A lawyer shall preserve the confidence and
secrets of his client even after the attorney-client
relation is terminated.
Rule 21.02 A lawyer shall not, to the disadvantage of his
client, use information acquired in the course of
employment, nor shall he use the same to his own
advantage or that of a third person, unless the client with
full knowledge of the circumstances consents thereto.
The cases filed by the respondent against his former
client involved matters and information acquired by the
respondent during the time when he was still Rosarios
counsel. Information as to the structure and operations
of the family corporation, private documents, and other
pertinent facts and figures used as basis or in support of
the cases filed by the respondent in pursuit of his
malicious motives were all acquired through the
attorney-client relationship with herein complainants.
Such act is in direct violation of the Canons and will not
be tolerated by the Court.
WHEREFORE, respondent Atty. Eduardo C. De Vera is
hereby DISBARRED from the practice of law effective
immediately upon his receipt of this Resolution.
Let copies of this Resolution be furnished the Bar
Confidant to be spread on the records of the respondent;
the Integrated Bar of the Philippines for distribution to
all its chapters; and the Office of the Court Administrator
for dissemination to all courts throughout the country.
SO ORDERED.
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 LEGAL PROFESSION
CASES BATCH # 5
[A.C. No. 5834. December 11, 2003]
TERESITA D. SANTECO, complainant, vs. ATTY.
LUNA B. AVANCE, respondent.
DECISION
YNARES-SANTIAGO, J.:
The relationship between a lawyer and a client is highly
fiduciary; it requires a high degree of fidelity and good
faith.[1] The Code of Professional Responsibility states:
CANON 17. A LAWYER OWES FIDELITY TO CAUSE OF HIS
CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND
CONFIDENCE REPOSED IN HIM.
CANON 18. A LAWYER SHALL SERVE HIS CLIENT WITH
COMPETENCE AND DILIGENCE.
We are once again called upon to reiterate these dicta in
the instant administrative matter before us.
On July 31, 2001, Teresita D. Santeco filed a Verified
Complaint[2] with the Committee on Bar Discipline of the
Integrated Bar of the Philippines praying that
appropriate sanctions be meted on respondent Atty.
Luna B. Avance for mishandling Civil Case No. 97-275.
Complainant averred that she was the defendant in an
action for ejectment docketed as Civil Case No. 50988
filed with Branch 62 of the Makati City Metropolitan Trial
Court (MTC). On March 3, 1997, the trial court rendered
judgment against her. Thereafter, she filed
a supersedeas bond with the Clerk of Court of
the Makati MTC.
Sometime in February 1997, during the pendency of
the ejectment case, complainant filed an action to
Declare Deed of Absolute Sale Null and Void and for
Reconveyance with Damages with Branch 147 of
the Makati City Regional Trial Court. The case was
entitled, Feliciana David Santeco, et al. v. Ramon
Gutierrez, et al., and docketed as Civil Case No. 97-275.
On or before March 1998, complainant terminated the
services of her then counsel and engaged the services of
respondent Atty. Luna B. Avance as her
counsel de parte in both cases.Complainant agreed to
and did pay respondent P12,000.00 as acceptance fee
for her services.[3]
In June 1997 and August 2000, complainant paid
respondent the sums of P1,500.00 and P500.00
respectively in full satisfaction of their acceptance
fee. However, respondent refused to issue to
complainant the corresponding receipts therefor, despite
demands to do so.
In an Order dated July 6, 1998 in Civil Case No. 97-275,
the Presiding Judge of Branch 147 of the Makati City RTC
expunged from the record the testimony of a witness for
complainant, who was one of the plaintiffs
therein.[4] Respondent, as her counsel, filed a Motion to
Reconsider and/or Set Aside Order of July 6, 1998.[5] The
motion was denied by the trial court in an Order
dated June 30, 1999.[6] Thereafter, on August 27,
1999,[7] Civil Case No. 97-275 was dismissed for failure
to prosecute. Respondent filed a Motion to Reconsider
and/or Set Aside Order of August 27, 1999.[8]
Subsequently, respondent made representations with
complainant that she was going to file a petition for
certiorari with the Court of Appeals, assailing the
dismissal of Civil Case No. 97-275. For the proposed
service, respondent charged complainant the total sum
of P3,900.00, which the latter paid.[9] After waiting for
some time without any word from respondent,
complainant personally verified with the docket section
of the Court of Appeals whether or not a petition
for certiorari was filed. She was dismayed to discover
that no such petition had been filed.
Complainant also alleged that respondent took from her
the official receipt and pictures of the torn-down
structures which were the subject of Civil Case No.
50988, issued by the Clerk of Court of Branch 62 of
the Makati City MTC, evidencing her deposit of
the supersedeas bond. Respondent obtained the same
under the pretext that she needed them in the motion
for the withdrawal of complainants deposit.
Complainant further averred that respondent told her to
go to the court to claim the check for
the supersedeas bond and have the same encashed with
the Landbank. However, upon verification with the MTC,
she discovered that there was no such check and that
she needs to present the official receipt to withdraw said
deposit. She tried to recover the official receipt from
respondent but the latter kept avoiding her.
Thus, complainant filed an action against respondent
before the Barangay Office
of Barangay Nangka, Marikina City. Respondent,
however, repeatedly failed to appear at the conciliation
proceedings, despite notice of the hearings, prompting
the Lupong Tagapayapa, to issue a certification to file
action.[10] Since then, respondent persistently avoided
complainant and failed to represent her in Civil Cases
Nos. 50988 and 97-275. According to complainant,
respondent just stopped appearing as her counsel of
record without any justifiable reason.Hence, she prayed
that appropriate sanctions be meted on respondent.
After the filing of the administrative complaint, docketed
as CBD Case No. 01-861, an Order dated August 1,
2001[11] was issued by the Commission on Bar Discipline
requiring respondent to submit her Answer within fifteen
(15) days from receipt thereof. A copy of said Order was
received by respondent on August 8, 2001. Respondent
failed to file her Answer, which compelled complainant
to file a Motion To Declare Respondent In Default And To
Set Case For Hearing Ex Parte.[12] She furnished
respondent copy of the motion by personal service. The
copy was received by one Kins Avance on October 3,
2001.[13]
Respondent still failed to file her Answer. Thus, the
Commission on Bar Discipline issued an Order
dated October 30, 2001 setting the case for hearing
on November 20, 2001. This Order was received by
respondent on November 8, 2001, as reflected in the
Registry Return Receipt thereof.
On the scheduled hearing on November 20, 2001, only
the complainant appeared.[14] In order to abbreviate
proceedings, the Commission on Bar Discipline issued an
Order[15] requiring both parties to submit their respective
memoranda within twenty (20) days from receipt, after
which the case shall be deemed submitted for decision
with or without memoranda.Respondent received a copy
of the Order on November 27, 2001, per the Registry
Return Receipt.
Pursuant to the foregoing Order, complainant filed her
Position Paper on December 13, 2001.[16] Again,
respondent did not file her memorandum.
On March 14, 2002, Investigating Commissioner Lydia A.
Navarro submitted a Report finding respondent culpable
as charged and recommended that she be suspended
from the practice of law for two (2) years. She found
that:
As it is, respondent violated Canon 16 of the Code of
Professional Responsibility for having failed to account to
the complainant the official receipt of
the supersedeas bond she got from complainant to
withdrew (sic) the same from the court relative to
the ejectment case.
Respondent also violated Canon 18.03 for having failed
to file the [petition for] certiorari before the Court of
Appeals as she promised the complainant and even got
litigation expenses relative to the same.
Likewise, respondent violated Canon 20 when she
discontinued her legal services for complainant without
any notice of withdrawal and even ignored the issuances
of the Commission for her to answer the complaint filed
against her.
On August 3, 2002, the Board of Governors of the
Integrated Bar of the Philippines issued Resolution No.
XV-02-408, adopting and approving the report and
recommendation of the Investigating Commissioner.
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 LEGAL PROFESSION
CASES BATCH # 5
While we agree that indeed respondent is liable, we find
the recommended penalty not commensurate to the
degree of her malfeasance.
There can be no question that respondent was grossly
remiss in the performance of her duties as counsel for
complainant. The records show that in engaging the
services of respondent, complainant agreed to and did
pay respondent P12,000.00 as acceptance fee.[17] It also
appears that on April 20, 1998, a witness for
complainant in Civil Case No. 97-275 testified before the
court on direct examination. For lack of material time,
the cross-examination was reset to June 1,
1998. However, the witness failed to attend the hearing
on the said date. Respondent, on the other hand, arrived
late. Over the vehement objections of defense counsel,
the trial court reset the hearing to July 6, 1998, with the
warning that in the event the witness fails to appear on
said date, her direct examination shall be expunged. The
witness again failed to appear at the next hearing
because she went to Baguio. Respondent was likewise
not around when the case was called. Thus, on motion
of adverse counsel, the trial court ordered that the
testimony of the witness be stricken off the record.[18]
These incidents show respondents lackadaisical manner
in handling her clients cause. Again, for respondents
failure to appear during the hearings scheduled on
August 23 and 27, 1999, Civil Case No. 97-275 was
dismissed for failure to prosecute.[19] Her failure to
appear during those hearings constitutes inexcusable
negligence as it proved fatal to the cause of
complainant.[20] She thereafter filed a Motion to
Reconsider and/or Set Aside Order of August 27, 1999
on February 8, 2000[21] way beyond
the reglementary period for the filing thereof. She
proffered the lame excuse that notices sent to her were
returned to the trial court with the notation:
Moved.[22] However, it was her duty to notify the court
of the change in her address, if she had indeed moved.
Even as the aforesaid motion for reconsideration was
pending, she made representations with complainant
that she would file a petition for certiorari with the Court
of Appeals assailing the trial courts dismissal of Civil
Case No. 97-275. For the filing and preparation thereof,
she charged and was paid the sum of P3,900.00 by
complainant.[23] Respondent, however, did notfile the
petition without notifying the complainant.
Rule 18.03 of the Code of Professional Responsibility
mandates that a lawyer shall not neglect a legal matter
entrusted to him. Her negligence in connection therewith
shall render her liable. Verily
Once he agrees to take up the cause of a client, a 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.[24]
Aggravating her gross negligence in the performance of
her duties, respondent abruptly stopped appearing as
complainants counsel even as proceedings were still
pending with neither a withdrawal nor an explanation for
doing so. This was in gross violation of the following:
CANON 22. A LAWYER SHALL WITHDRAW HIS
SERVICES ONLY FOR GOOD CAUSE AND UPON
NOTICE APPROPRIATE IN THE CIRCUMSTANCES. (Italics
supplied)
It must be remembered that while the right of the client
to terminate the relation is absolute, i.e., with or without
cause,[25] the right of the attorney to withdraw or
terminate the relation other than for sufficient cause is
considerably restricted.[26] Among the fundamental rules
of ethics is the principle that an attorney who undertakes
to conduct an action impliedly stipulates to carry it to its
termination.[27] He is not at liberty to abandon it without
reasonable cause.[28]
The grounds wherein a lawyer may withdraw his services
are well-defined,[29] and the abruptness of respondents
withdrawal hardly fits into any of them. Be that as it
may, whether or not a lawyer has a valid cause for
withdrawing from a case, he can not just do so and leave
the client out in the cold unprotected.[30] 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 lawyer should see to it
that the name of the new counsel is recorded in the
case.[31]
Respondents consistent refusal to comply with lawful
orders in the proceedings before the Commission on Bar
Discipline, with no explanation offered to justify them,
not only underscores her utter lack of respect for
authority, but also a defiance for law and order which is
at the very core of her profession. Such defiance is
anathema to those who seek a career in the
administration of justice because obedience to the
dictates of the law and justice is demanded of every
lawyer. How else would respondent even endeavor to
serve justice and uphold the law when she disdains to
follow even simple directives? The first and foremost
command of the Code of Professional Responsibility
could not be any clearer:
CANON 1. A LAWYER SHALL UPHOLD THE
CONSTITUTION, OBEY THE LAWS OF THE LAND AND
PROMOTE RESPECT FOR LEGAL PROCESSES.
The inevitable conclusion is that respondent gravely
abused the confidence that complainant reposed in her
and with palpable bad faith. Her persistent refusal to
comply with lawful orders directed at her without any
explanation for doing so, is contumacious conduct which
merits no compassion.
A lawyer has the duty to uphold the integrity and dignity
of the legal profession at all times and
to faithfully perform her duties to society, to the bar, to
the courts and to her clients.[32] We can not tolerate any
misconduct that tends to besmirch the fair name of an
honorable profession.
All told, respondent has dismally failed to do her duty to
her client and has clearly violated the Code of
Professional Responsibility. Respondents actions erode
the public perception of the legal profession. They
constitute gross misconduct, and the sanctions for such
malfeasance is provided by Section 27, Rule 138 of the
Rules of Court which states:
SEC. 27. Disbarment and suspension of attorneys by
Supreme Court, grounds therefore. A member of the bar
may be disbarred or suspended from his office as
attorney by the Supreme Court for any deceit,
malpractice or other gross misconduct in such office,
grossly immoral conduct or by reason of his conviction
of a crime involving moral turpitude, or for any violation
of the oath which he is required to take before the
admission to practice, or for a willful disobedience
appearing as attorney for a party without authority to do
so.
The penalty of suspension for a period of two (2) years
recommended by the Board of Governors of the IBP is
too light and inadequate given the prevailing facts of this
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 LEGAL PROFESSION
CASES BATCH # 5
case. For the deliberate violation and defiance of not
merely one but several Canons of the Code of
Professional Responsibility, coupled with palpable bad
faith and dishonesty in her dealings with complainant,
respondent deserves a graver penalty that of suspension
for a period of five (5) years from the practice of law.[33]
WHEREFORE, in view of all the foregoing, respondent
ATTY. LUNA B. AVANCE is hereby SUSPENDED from the
practice of law for a period of five (5) years. She is
directed to return to complainant the amount of
P3,900.00 within ten (10) days from notice.
This decision shall take effect immediately. Copies
thereof shall be furnished the Office of the Bar Confidant,
to be appended to respondents personal record. The
Court Administrator shall also furnish all lower courts
with copies of this Decision.
SO ORDERED.

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