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A.C. No. 7732               March 30, 2009

RODANTE D. MARCOLETA, Complainant

vs.
RESURRECCION Z. BORRA AND ROMEO A. BRAWNER, Respondents.

DECISION

CARPIO MORALES, J.:

A Complaint1 for disbarment was filed by Atty. Rodante D. Marcoleta (complainant) against
respondents Commissioners Resurreccion Z. Borra (Borra) and Romeo A. Brawner (Brawner) of
the Commission on Elections (Comelec) charging them with violating Canons 1 (1.01, 1.02 and
1.03) and 3 (3.01, 3.02, 3.05 and 3.06) of the Code of Judicial Conduct2 and Canons 4, 5, 6 and
17 of the Canons of Judicial Ethics.3 Additionally, complainant charges respondents of violating
Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and
Employees.4

During the 2007 National and Local Elections, the warring factions of complainant and Diogenes
S. Osabel (Osabel) each filed a separate list5 of nominees for the party-list group
Alagad.1avvphi1

With Alagad winning a seat in the House of Representatives, the two protagonists contested the
right to represent the party. By Omnibus Resolution6 of July 18, 2007, the dispute was resolved
by the Comelec’s First Division in favor of Osabel. Commissioner Borra wrote the ponencia
while Commissioner Brawner concurred.

The dispute was elevated to the Comelec En Banc which, by Resolution7 of November 6, 2007,
reversed the First Division Resolution and reinstated the certificate of nomination of
complainant’s group. For failing to muster the required majority voting,8 however, the Comelec
ordered the re-hearing of the controversy. Notwithstanding the conduct of a re-hearing, the
necessary majority vote could not still be obtained.9 The Comelec’s First Division’s Omnibus
Resolution was eventually affirmed.10 Hence, arose the present complaint for disbarment,
complainant alleging as follows:

8. x x x x respondents [Borra and Brawner] promulgated a highly questionable and irregular

Omnibus Resolution [Annexes "F" and "F-1"], that was characterized by manifest partiality,
evident bad faith, and gross inexcusable negligence as evidenced in the TIMING and MANNER
by which the case was eventually disposed by herein respondents in their Division.

9. Respondents deliberately delayed the resolution of the case (from 5 days as mandated under
Sec. 8, Rule 18 of the Comelec Rules of Procedure) to nearly 4 months after the same was
deemed submitted for decision on March 20, 2007. The delay was intentional because if the case
was resolved before May 14, 2007, [Osabel] will be left alone to campaign for the Party and
considering that he is relatively unknown and without resources, certainly he cannot make the
Party win. x x x x. Hence, in first making sure that ALAGAD wins a seat and, thereafter,
resolved the case in favor of one who neither campaigned nor spent for it, both respondents
subverted and/or frustrated the will of the 423,090 voters who supported ALAGAD and who
have always believed that it was complainant who will represent them in the 14th Congress. This
is an extortionate act to say the least!

10. Even the manner with which the case was disposed is fraught with gross deception and
evident manipulation. First of all, the respondents changed the sole and common issue stipulated
by the parties: from one that is central to the complete and final resolution of the controversy,
into one that was beyond the Comelec’s jurisdiction.

xxxx
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11. Respondents were evidently in bad faith in muddling the issue (which resulted in an
erroneous ruling) x x x.

xxxx

13. The assailed 20-page Omnibus Resolution never cited a single law (in violation of Sec. 14,
Art. VIII of the Philippine Constitution as well as Rule 18, Sec. 2, last par. of their own Rules) in
erroneously ruling that petitioner’s resignation cannot be considered because it was not in written
form x x x x.

14. Both respondents lied in actually delving into the root of the parties’ conflict despite their
avowal to the contrary and in giving "more credence to the Minutes submitted by [Osabel]"
(Annex "F-13.b") despite their declaration that said "minutes partisan from the start x x x in a
power struggle within the organization, cannot be upheld as faithful depiction of prevailing
facts." They also lied in not relying on the Party’s Constitution and By-Laws (CBL), contrary to
what they declared to do, when compared to the En Banc ponencia [Annex "J"] that reversed
their Omnibus Resolution x x x x.

xxxx

16. Respondent Borra’s "dissenting opinion" (if it can be qualified as such) was a mere marginal
note, written above his signature that reads: "In conscience and judiciousness, I vote to affirm the
1st Div. Omnibus Resolution." x x x.

17. Respondent Borra knows only too well that all cases are decided and affirmed on the basis of
evidence, not on conscience. For conscience is that instantaneous perception of right or wrong
that can only be summoned by the spirit being a part of the Divine Wisdom. x x x.

18. It was clearly evasive for respondent Borra to use the absurd excuse "in conscience and
judiciousness" to free himself from the mandatory submission of a separate dissenting opinion x
x x.

xxxx

20. Respondent Brawner’s Dissenting Opinion [Ref. Annex "I"], on the other hand, only
confirmed his leaning and partiality towards [Osabel] as clearly shown by his shallow
disquisition, if not twisted, dissent. x x x.

21. Respondent Brawner’s irresponsible claim (on page 4) that "all official records of
ALAGAD’s proceedings point out to Osabel’s continuing as ALAGAD’s President" and "the
recent decision in SPA No. 04-153 dated June 12, 2007 prove the continuing stature of Osabel as
ALAGAD President" is not supported by facts. x x x x. Thus, it was reckless, if not unthinkable,
for Brawner to have ascribed "continuing stature" upon petitioner based on a "position"
appearing in the title [Annex "O-1"] of a different and old case that was disposed only recently.
This ruse is gobbledygook, plain and simple! [Padua v. Robles, 66 SCRA 488].

x x x x (Emphasis, underscoring and italics in the original)

Complainant filed a Supplemental Complaint11 on February 12, 2008, this time charging
respondent Brawner of "tamper[ing] the record of the proceedings in [SPA No. 07-020]" by
falsely alleging in an Order dated February 5, 2008 that there had been a re-hearing; that both
parties had agreed to simultaneously file their memoranda during the re-hearing; and that the
parties filed their respective memoranda.

Respondent Brawner, in his Answer12 dated April 2, 2008, asserted in the main that "the remedy
of complainant is not to file a complaint for disbarment, but to file an appeal before [the Supreme
Court] via [p]etition for [c]ertiorari," and that being members of a constitutional body enjoying
presumption of regularity in the performance of their functions, he and co-respondent Borra "are
supposed to be insulated from a disbarment complaint for being impeachable officers."
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In his Comment,13 respondent Borra contends that the Code of Judicial Conduct and Canons of
Judicial Ethics cannot be made to apply to him and his co-respondent, they not being members of
the judiciary; and that since they perform quasi-judicial functions as well as administrative
duties, they are bound by the Comelec’s own set of internal rules and procedure over and above a
Code of Conduct that prescribes the norms and standards of behavior to be observed by the
officials and employees of the Comelec, a constitutional body.

Respondent Borra further contends that the present complaint is premature as "the validity and
legality of the resolutions are still subject to review;" and that the complaint is meant to "harass
[him] and punish him for exercising his judgment on the case filed before him."

To respondents’ Answer and Comment, complainant filed Replies,14 alleging that respondents
cannot take refuge in their being impeachable public officers to insulate them from any
disbarment complaint. To complainant, "the insulation from disbarment complaint of
impeachable public officers when referring particularly to the members of the [Comelec] applies
only to the ‘majority’ of its members who should all be members of the Philippine bar," citing
Section 1 (1) of Article IX-C of the Constitution.15

Complainant goes on to charge respondent Borra of violating Republic Act No. 3019 or the Anti-
Graft and Corrupt Practices Act for collecting his retirement benefits "hurriedly despite
knowledge of the existence of criminal and administrative charges against him." Additionally, he
charges respondents of culpable violation of the Constitution when they, together with the other
members of the Comelec, adjusted their compensation scheme under Resolution No. 7685.16

The Court takes notice that respondent Borra retired from the Comelec on February 2, 2008
while respondent Brawner passed away on May 29, 2008.

As regards respondent Brawner then, the present case is already moot.

At the outset, the Court, guided by its pronouncements in Jarque v. Ombudsman,17 In Re: Raul
M. Gonzales18 and Cuenco v. Fernan,19 has laid down the rule that an impeachable officer20 who
is a member of the Bar cannot be disbarred without first being impeached. Complainant’s
availment of Section 1 (1) of Article IX-C of the Constitution to skirt this rule is specious.

It bears emphasis that the provision that majority of Comelec members should be lawyers
pertains to the desired composition of the Comelec. While the appointing authority may follow
such constitutional mandate, the appointment of a full complement of lawyers in the Comelec
membership is not precluded.

At the time the present complaint was filed, respondents and three other commissioners21 were
all lawyers. As an impeachable officer who is at the same time a member of the Bar, respondent
Borra must first be removed from office via the constitutional route of impeachment before he
may be held to answer administratively for his supposed errant resolutions and actions.

Respondent Borra having retired from the Comelec does not, of course, necessarily call for the
dismissal of the complaint. At the heart, however, of the disbarment complaint is the issuance of
Omnibus Resolution of July 18, 2007 penned by respondent Borra when he was still a member
of the Comelec’s First Division.

The supposed failure of respondent Borra to resolve the controversy between complainant’s
faction and the other faction of Alagad within the prescribed period does not render the Omnibus
Resolution null and void. Prescribed periods partake of a directory requirement, given the
Comelec’s numerous cases and logistical limitations.22

The Court thus finds respondent Borra’s contention that the grounds-bases of the disbarment
complaint, fastened on supposed errors of judgment or grave abuse of discretion in the
appreciation of facts, are proper for an appeal, hence, complainant’s remedy is judicial, not
administrative.lawphil.net
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As for complainant’s invocation of Section 58 of Article VII of the Omnibus Election Code23
reading:

The chairman and members of the Commission shall be subject to the canons of judicial ethics in
the discharge of their functions.

x x x x (Emphasis and underscoring supplied),

the same relates to the quasi-judicial function of the Comelec, which function rests on judgment
or discretion, so that while it is of judicial nature or character, it does not involve the exercise of
functions of a judge.24

The same provision thus directs that in the exercise of the Comelec’s quasi-judicial power, the
chairman and members should be guided by the canons of judicial ethics. It bears emphasis that
the New Code of Judicial Conduct for the Philippine Judiciary25 applies only to courts of law, of
which the Comelec is not, hence, sanctions pertaining to violations thereof are made exclusively
applicable to judges and justices in the judiciary, not to quasi-judicial officers like the Comelec
chairman and members, who have their own codes of conduct to steer them.

Even if the Court were to gauge the assailed actions of respondent Borra under the Code of
Professional Responsibility, no specific incidents and sufficient evidence can be gathered to
show that respondent did engage in dishonest, immoral or deceitful conduct in his capacity as a
lawyer. It bears reiteration that the acts particularized in the complaint pertain to respondent
Borra’s duties as a Comelec commissioner.

As for the release of retirement benefits to respondent Borra, there is nothing irregular therewith,
the same being in line with Memorandum Circular No. 10 (series of 1995) of the Office of the
Ombudsman reading:

x x x a person retiring from the government service, whether optional or compulsory, needs only
to present a certification from this Office whether or not he has a pending criminal or
administrative case with it. In the event the certification presented states that the prospective
retiree has a pending case, the responsibility of determining whether to release his retirement
benefits, as well as the imposition of necessary safeguards to ensure restitution thereof in the
event the retiree is found guilty, rests upon and shall be left to the sound discretion of the head of
the department, office or agency concerned. (Emphasis and underscoring in the original)

Interestingly, while complainant singled out the participation of respondents Borra and Brawner
in the promulgation of the questioned resolutions, he spared the other commissioners who were
also signatories to the resolutions.

WHEREFORE, the complaint for disbarment against now deceased Comelec Commissioner
Romeo Brawner is DISMISSED for being moot. That against Commissioner Resurreccion Borra
is likewise DISMISSED for lack of merit.

SO ORDERED.
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A.M. No. P-08-2458               March 22, 2010

(Formerly OCA IPI No. 08-2755-P)CRISOSTOMO M. PLOPINIO, Complainant,
vs.
ATTY. LIZA ZABALA-CARIÑO, Clerk of Court, Regional Trial Court, Branch 29,
Libmanan, Camarines Sur, Respondent.

The instant administrative case stemmed from a Letter1 dated 20 January 2007 of Crisostomo M.
Plopinio (complainant), informing the Court that he had charged Atty. Liza D. Zabala-Cariño
(respondent Atty. Cariño), Clerk of Court, Regional Trial Court (RTC), Branch 29, Libmanan,
Camarines Sur, criminally and administratively before the Office of the Ombudsman, for
violation of Section 4(c), Republic Act No. 6713 and Section 3(e), Republic Act No. 3019 on 10
February 2006 and 22 March 2006. These were docketed as OMB-L-A-06-0072-A and OMB-L-
C-06-0110-A, and OMB-L-C-02-98-C and OMB-L-A-06-0212-C, respectively.

Complainant stated that respondent Atty. Cariño may not have disclosed to the Supreme Court,
in the course of her application as Clerk of Court, her pending administrative and criminal cases
before the Ombudsman.

In an Indorsement2 dated 8 May 2007, the Office of the Court Administrator (OCA) directed
respondent Atty. Cariño to give her comment on the letter.

In her Comment3 dated 24 May 2007, respondent Atty. Cariño vehemently denied the allegations
against her. She claimed that she was just being truthful when she answered "No" to item number
37(a) of her Personal Data Sheet (PDS) which states: "Have you ever been formally charged?"
She admitted that she was aware of the two (2) complaints filed against her and her former
Regional Election Director before the Ombudsman. She, however, pointed out that these cases
are still in the preliminary investigation and pre-charge stages, since probable cause has yet to be
determined by the investigating officers and as such, should not be considered as formal charges
yet.

Acting on the recommendation of the OCA, the Court issued a resolution4 re-docketing the
complaint as a regular administrative matter against respondent Atty. Cariño and referred the
matter to the Executive Judge of RTC, Libmanan, Camarines Sur, for investigation, report and
recommendation within sixty (60) days from receipt of the record.

On 4 February 2009, the Court issued a Resolution5 noting the undated letter of complainant
stating that Judge-Designate Lore V. Bagalacsa is respondent Atty. Cariño’s godmother at her
wedding and in one of complainant’s cases, SP Civil Action No. L-03-06, Judge Bagalacsa
"exhibited ill-feelings" against him when he questioned why she was still hearing his cases. The
Court referred the matter to Executive Judge Jaime E. Contreras, RTC, Naga City, for
investigation, report and recommendation.

In his Report and Recommendation6 dated 29 June 2009, Investigating Judge Contreras stated
that the complaint warrants disciplinary action against respondent Atty. Cariño. The
Investigating Judge found respondent liable for her failure to properly understand the import of
the question "Have you ever been formally charged?" He contends that as a lawyer, respondent
Atty. Cariño should have known that such kind of query was intended to dig into her personal
background; whether administrative or criminal cases were filed against her regardless of
whatever stages these may be.

Finding no deliberate intent on the part of respondent Atty. Cariño to withhold information about
her pending Ombudsman cases, the Investigating Judge recommended that she be admonished to
be more circumspect and prudent in answering her PDS, with a stern warning that a repetition of
the same or similar act shall be dealt with more severely. The Investigating Judge further
recommended that the question in the PDS, which reads: "Have you ever been formally
charged?" be modified, in order to avoid any erroneous interpretation, to read as follows: "Have
you ever been charged criminally or administrative (sic) in any forum? What is the stage now?"
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The OCA adopted the findings and conclusions of the Investigating Judge but recommended that
respondent Atty. Cariño be suspended for a period of one (1) month without pay, with a stern
warning that a repetition of the same offense or commission of a similar offense in the future,
shall be dealt with more severely.7 It concluded that it was not a simple case of misconstruction
of the term "formally charged" that could justify the non-disclosure of the Ombudsman cases
filed against her. As a lawyer, she is expected to understand the essence of the question.
Moreover, the OCA noted that respondent Atty. Cariño has been in the government service for a
period of eighteen (18) years, hence, she is presumed to have gained familiarity with the
questions in the PDS.

We disagree with the findings and recommendation of the OCA.

Respondent Atty. Cariño is charged with dishonesty for allegedly falsifying her PDS. Dishonesty
is defined as "intentionally making a false statement in any material fact, or practicing or
attempting to practice any deception or fraud in securing his examination, registration,
appointment or promotion." It is also understood to imply a "disposition to lie, cheat, deceive, or
defraud; untrustworthiness; lack of integrity; lack of honesty, probity or integrity in principle;
lack of fairness and straightforwardness; disposition to defraud, deceive or betray."8

Thus, dishonesty, like bad faith, is not simply bad judgment or negligence. Dishonesty is a
question of intention. In ascertaining the intention of a person accused of dishonesty,
consideration must be taken not only of the facts and circumstances which gave rise to the act
committed by the petitioner, but also of his state of mind at the time the offense was committed,
the time he might have had at his disposal for the purpose of meditating on the consequences of
his act, and the degree of reasoning he could have had at that moment.9

The intention to falsify or misrepresent, as found by the Investigating Judge, is absent on the part
of respondent Atty. Cariño when she answered the question "Have you ever been formally
charged?" When she filled-up her PDS, she had in mind the Uniform Rules on Administrative
Cases in the Civil Service, which states, among others:

Section 8. Complaint. – A complaint against a civil service official or employee shall not be
given due course unless it is in writing and subscribed and sworn to by the complainant.
However, in cases initiated by the proper disciplining authority, the complaint need not be under
oath.

The complaint should be written in a clear, simple and concise language and in a systematic
manner as to apprise the civil servant concerned of the nature and cause of the accusation against
him and to enable him to intelligently prepare his defense or answer.

The complaint shall contain the following:

a. full name and address of the complainant;

b. full name and address of the person complained of as well as his position and office of
employment;

c. a narration of the relevant and material facts which shows the acts or omissions
allegedly committed by the civil servant;

d. certified true copies of documentary evidence and affidavits of his witnesses, if any;
and

e. certification or statement of non-forum shopping.

In the absence of any one of the aforementioned requirements, the complaint shall be dismissed.

Section 16. Formal Charge. – After a finding of a prima facie case, the disciplining authority
shall formally charge the person complained of. The formal charge shall contain a specification
of charge(s), a brief statement of material or relevant facts, accompanied by certified true copies
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of the documentary evidence, if any, sworn statements covering the testimony of witnesses, a
directive to answer the charge(s) in writing under oath in not less than seventy-two (72) hours
from receipt thereof, an advice for the respondent to indicate in his answer whether or not he
elects a formal investigation of the charge(s), and a notice that he is entitled to be assisted by a
counsel of his choice.

If the respondent has submitted his comment and counter-affidavits during the preliminary
investigation, he shall be given the opportunity to submit additional evidence.

The disciplining authority shall not entertain requests for clarification, bills of particulars or
motions to dismiss which are obviously designed to delay the administrative proceedings. If any
of these pleadings are interposed by the respondent, the same shall be considered as an answer
and shall be evaluated as such.

Section 34. Effect of the Pendency of an Administrative Case. – Pendency of an administrative

case shall not disqualify respondent from promotion or from claiming maternity/paternity
benefits.

For this purpose, a pending administrative case shall be construed as follows:

a. When the disciplining authority has issued a formal charge; or

b. In case of a complaint filed by a private person, a prima facie case is found to exist by the
disciplining authority.

Respondent Atty. Cariño’s non-disclosure of her pending Ombudsman cases was by reason of
her interpretation of what a formal charge meant as distinguished from a complaint. She banked
on the distinction of these terms as defined under the Uniform Rules on Administrative Cases in
the Civil Service. She correctly argued that the term "formal charge" in the PDS must find its
meaning in the Uniform Rules on Administrative Cases in the Civil Service. For after all, both
the Uniform Rules on Administrative Cases in the Civil Service and the CS Form 212 (Revised
2005), otherwise known as the "Personal Data Sheet," had been promulgated and revised by the
Civil Service Commission itself.

It is not correct to say that this is a simple case of misconstruction of the term "formally charge"
and that as a lawyer, respondent Atty. Cariño is expected to understand the essence of such
question. For in reality, the question is subject to varied interpretations.

In criminal cases, the determination of whether a person is considered formally charged is found
in Rule 112 of the Revised Rules of Criminal Procedure, to wit:

Section 4. Resolution of investigating prosecutor and its review. – If the investigating prosecutor
finds cause to hold the respondent for trial, he shall prepare the resolution and information. He
shall certify under oath in the information that he, or as shown by the record, an authorized
officer, has personally examined the complainant and his witnesses; that there is reasonable
ground to believe that a crime has been committed and that the accused is probably guilty
thereof; that the accused was informed of the complaint and of the evidence submitted against
him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall
recommend the dismissal of the complaint.Within five (5) days from his resolution, he shall
forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to
the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the
exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from
their receipt thereof and shall immediately inform the parties of such action.

No complaint or information may be filed or dismissed by an investigating prosecutor without

the prior written authority or approval of the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy.
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Where the investigating prosecutor recommends the dismissal of the complaint but
hisrecommendation is disapproved by the provincial or city prosecutor or chief state prosecutor
or the Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by
himself, file the information against the respondent, or direct another assistant prosecutor or state
prosecutor to do so without conducting another preliminary investigation.

If we but look at the attachments to the complaint itself, it is evident that at the time respondent
Atty. Cariño was applying for the position of Clerk of Court, she had not yet been "formally
charged" administratively or criminally.

In the Orders10 dated 10 February 2006 in OMB-L-A-06-0072-A and OMB-L-C-06-0110-A, the

Deputy Ombudsman for Luzon directed respondent Atty. Cariño and her Regional Election
Director, Atty. Zacarias C. Zaragosa, Jr., to submit their counter-affidavit/s, affidavit/s of their
witnesses, if any, and such other controverting evidence, with proof of service of copies upon the
complainant within ten (10) days from receipt of the orders. The orders further state that
"[T]hereafter, the case will be considered submitted for final disposition or taking of further
action as may warranted x x x."

Clearly, there were no final dispositions of the cases yet. In fact, the complainant even stated in
his Complaint11 that those cases were not yet resolved by the Ombudsman.

Thus, it is only after the issuance of the resolution finding probable cause and filing of the
information in court that she can be considered formally charged. In fact, the reckoning point is
the filing of the information with the written authority or approval of the Ombudsman.1avvphi1

To rule otherwise would subject herein respondent, or any civil servant for that matter, to
extreme hardships considering that a government official or employee formally charged is
deprived of some rights/privileges, i.e., obtaining loans from the Government Service Insurance
System or other government-lending institutions, delay in the release of retirement benefits,
disqualification from being nominated or appointed to any judicial post12 and, in some instances,
prohibition to travel.

To summarize, a person shall be considered formally charged:

(1) In administrative proceedings – (a) upon the filing of a complaint at the instance of the
disciplining authority; or (b) upon the finding of the existence of a prima facie case by the
disciplining authority, in case of a complaint filed by a private person.

(2) In criminal proceedings – (a) upon the finding of the existence of probable cause by the
investigating prosecutor and the consequent filing of an information in court with the required
prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or
the Ombudsman or his deputy; (b) upon the finding of the existence of probable cause by the
public prosecutor or by the judge in cases not requiring a preliminary investigation nor covered
by the Rule on Summary Procedure;13 or (c) upon the finding of cause or ground to hold the
accused for trial pursuant to Section 13 of the Revised Rule on Summary Procedure.14

WHEREFORE, in the light of foregoing, the instant administrative complaint against Atty. Liza
D. Zabala-Cariño, Clerk of Court, RTC, Branch 29, Libmanan, Camarines Sur is hereby
DISMISSED for lack of merit.
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1. VIRGOvs.AMORIN

 FACTS:complainantfiledadisbarmentcaseagainstrespondentforthelatter'sfraudulentuseofhislegalknowledgeinconvincingcomplainanttopartwithher property,
thevirgomansion.complainantallegedtheexistenceofanattorney-clientrelationship,hence,respondentshouldbeheldliableforissuingpostdatedchecksinpaymentfor
thepurchasepriceofsaidmansion.respondentdeniedthesame,raisingindefensethatitwascomplainantwhodefraudedhim.thecommissioneroftheibpcommittee
onbardisciplinefoundrespondentguiltyofmisconductandrecommendedhissuspensionfromthepracticeoflawforsixmonths.theibpboardofgovernorsapproved
therecommendation,withmodification,suspendingrespondentfor1year instead.

ISSUES:*whetherornotanattorney-clientrelationshipexistsbetweencomplainantandrespondent*whetherornotrespondentisguiltyofmisconduct

HELD:*no.anattorney-clientrelationshipissaidtoexistwhenalawyeracquiescesor voluntarilypermitstheconsultationofaperson,who,inrespecttoabusinessof
troubleofanykind,consultsalawyerwithaviewofobtainingprofessionaladviseorassistance.complainant'savermentoftheexistenceoflawyer-clientrelationship,
presentinginevidencefourlettersandamemorandumofagreementdraftedandsenttoherbyrespondent,onlystrengthenedtheideathattherelationshipbetween
herandtherespondentwasmainlypersonalorbusinessinnature,andthatwhateverlegalsevicesthatmayhavebeenrenderedbyrespondentforfreewereonly
incidentaltosaidrelationship.*thecourtcannotascertainwhetherrespondentindeedcommittedactsinviolationofhisoathasalawyerconcerningthesaleand
conveyanceofthevirgomansiononaccountoffactualmattersthataresubjectofpendingcivilcasesinvolvingthesameproperty.asamatterofprudenceandsoasnotto
preempttheconclusionthatwillbedrawnbythecourtswherethesamecasesarepending,thecourtdeemsitwisetodismissthepresentcasewithoutprejudicetothe
filingofanotherone,dependingonthefinaloutcomeofsaidcivilcases.

8. EVANGELINA MASMUD
vs.
NATIONAL LABOR RELATIONS COMMISSION
Facts:
Evangelina Masmud¶s husband, the late Alexander J. Masmud engaged the services of Atty. Rolando B. Go, Jr. in a
case for non-payment of benefits and damages.In consideration of Atty. Go¶s legal services, Alexander agreed to
pay attorney¶s fees ona contingent basis, as follows: twenty percent (20%) of total monetary claims as settledor
paid and an additional ten percent (10%) in case of appeal. It was likewise agreedthat any award of attorney¶s fees
shall pertain to respondent¶s law firm ascompensation.
 
The monetary claims of Alexander were granted except his claim for medical expenses.Several appeals were made
by Alexander¶s employer to NLRC and CA, however bothwere dismissed and the former decision was affirmed.
Eventually, the decision of theNLRC became final and executory, and consequently Evangelina received an
amountof P3,454,079.20. Out of said amount, Evangelina paid Atty. Go the sum of P680,000.00.Dissatisfied, Atty.
Go filed a motion to record and enforce the attorney¶s lien allegingthat Evangelina reneged on their contingent
fee agreement. Evangelina paid only theamount of P680,000.00, equivalent to 20% of the award as attorney¶s
fees, thus, leavinga balance of 10%, plus the award pertaining to the counsel as attorney¶s fees.Evangelina
contended that Atty. Go¶s claim for attorney¶s fees of 40% of the totalmonetary award was null and void based
on Article 111 of the Labor Code.

Issue:Whether or not CA erred in UPHOLDing RESPONDENT LAWYER¶S CLAIM OFFORTY PERCENT (40%) OF THE
MONETARY AWARD IN A LABOR CASE ASATTORNEY¶S FEES.

Ruling:Contrary to Evangelina¶s proposition, Article 111 of the Labor Code deals with theextraordinary concept
pg. 9awarded to the prevailingparty. It may not be used as the standard in fixing the amount payable to the
lawyer byhis client for the legal services he rendered.

In this regard, Section 24, Rule 138 of theRules of Court should be observed in determining Atty. Go¶s
compensation.The retainer contract between Atty. Go and Evangelina provides for a contingent fee.The contract
shall control in the determination of the amount to be paid, unless found bythe court to be unconscionable or
unreasonable.

The Court finds nothing illegal in thecontingent fee contract between Atty. Go and Evangelina¶s husband. The CA
committedno error of law when it awarded the attorney¶s fees of Atty. Go and allowed him toreceive an
equivalent of 39% of the monetary award