Professional Documents
Culture Documents
10050
December 3, 2013
VICTORIA
C.
HEENAN,
Complainant,
vs.
ATTY. ERLINA ESPEJO, Respondent.
DECISION
VELASCO, JR., J.:
This resolves the administrative complaint filed by Victoria Heenan
(Victoria) against Atty. Erlina Espejo (Atty. Espejo) before the Commission
on Bar Discipline (CBD) of the Integrated Bar of the Philippines (IBP) for
violation of lawyers oath, docketed as CBD Case No. 10-2631.
The Facts
Sometime in January 2009, Victoria met Atty. Espejo through her
godmother, Corazon Eusebio (Corazon). Following the introduction, Corazon
told Victoria that Atty. Espejo was her lawyer in need of money and wanted
to borrow two hundred fifty thousand pesos (PhP 250,000) from her
(Victoria). Shortly thereafter, Victoria went to the house of Corazon for a
meeting with Atty. Espejo where they discussed the terms of the loan.
Since Atty. Espejo was introduced to her as her godmothers lawyer,
Victoria found no reason to distrust the former. Hence, during the same
meeting, Victoria agreed to accomodate Atty. Espejo and there and then
handed to the latter the amount of PhP 250,000. To secure the payment of
the loan, Atty. Espejo simultaneously issued and turned over to Victoria a
check1 dated February 2, 2009 for two hundred seventy-five thousand
pesos (PhP 275,000) covering the loan amount and agreed interest. On due
date, Atty. Espejo requested Victoria to delay the deposit of the check for
the reason that she was still waiting for the release of the proceeds of a
bank loan to fund the check. However, after a couple of months of waiting,
Victoria received no word from Atty. Espejo as to whether or not the check
was already funded enough. In July 2009, Victoria received an Espejoissued check dated July 10, 2009 in the amount of fifty thousand pesos
(PhP 50,000)2 representing the interest which accrued due to the late
payment of the principal obligation. Victoria deposited the said check but, to
her dismay, the check bounced due to insufficiency of funds. Atty. Espejo
failed to pay despite Victorias repeated demands. Worried that she would
not be able to recover the amount thus lent, Victoria decided to deposit to
her account the first check in the amount of PhP 275,000, but without
notifying Atty. Espejo of the fact. However, the said check was also
dishonored due to insufficiency of funds. Victoria thereafter became more
aggressive in her efforts to recover her money. She, for instance,
personally handed to Atty. Espejo a demand letter dated August 3, 2009.3
When Atty. Espejo still refused to pay, Victoria filed a criminal complaint
against Atty. Espejo on August 18, 2009 for violation of Batas Pambansa
Blg. 22 and Estafa under Article 315 of the Revised Penal Code, as
amended, before the Quezon City Prosecutors Office.4
Atty. Espejo disregarded the notices and subpoenas issued by the Quezon
City Prosecutors Office which she personally received and continued to
ignore Victorias demands. She attended only one (1) scheduled preliminary
investigation where she promised to pay her loan obligation.5
SUSPENDED from the practice of law for two (2) years and Ordered to
Return to complainant the amount of Two Hundred Fifty Thousand
(P250,000.00) Pesos within thirty (30) days from receipt of notice with legal
interest reckoned from the time the demand was made.
On August 8, 2013, the CBD transmitted to this Court the Notice of the
Resolution pertaining to Resolution No. XX-2012-419 along with the records
of this case.15
The Courts Ruling
We sustain the findings of the IBP and adopt its recommendation in part.
Atty. Espejo did not deny obtaining a loan from Victoria or traverse
allegations that she issued unfunded checks to pay her obligation. It has
already been settled that the deliberate failure to pay just debts and the
issuance of worthless checks constitute gross misconduct, for which a
lawyer may be sanctioned.16
Verily, lawyers must at all times faithfully perform their duties to society, to
the bar, to the courts and to their clients. In Tomlin II v. Moya II, We
explained that the prompt payment of financial obligations is one of the
duties of a lawyer, thus:
In the present case, respondent admitted his monetary obligations to the
complaint but offered no justifiable reason for his continued refusal to pay.
Complainant made several demands, both verbal and written, but
respondent just ignored them and even made himself scarce. Although he
acknowledged his financial obligations to complainant, respondent never
offered nor made arrangements to pay his debt. On the contrary, he
refused to recognize any wrong doing nor shown remorse for issuing
worthless checks, an act constituting gross misconduct. Respondent must
be reminded that it is his duty as a lawyer to faithfully perform at all times
his duties to society, to the bar, to the courts and to his clients. As part of
his duties, he must promptly pay his financial obligations.17
The fact that Atty. Espejo obtained the loan and issued the worthless
checks in her private capacity and not as an attorney of Victoria is of no
moment. As We have held in several cases, a lawyer may be disciplined not
only for malpractice and dishonesty in his profession but also for gross
misconduct outside of his professional capacity. While the Court may not
ordinarily discipline a lawyer for misconduct committed in his nonprofessional or private capacity, the Court may be justified in suspending or
removing him as an attorney where his misconduct outside of the lawyers
professional dealings is so gross in character as to show him morally unfit
and unworthy of the privilege which his licenses and the law confer.18
In Wilkie v. Limos, We reiterated that the issuance of a series of worthless
checks, which is exactly what Atty. Espejo committed in this case,
manifests a lawyers low regard for her commitment to her oath, for which
she may be disciplined. Thus:
We have held that the issuance of checks which were later dishonored for
having been drawn against a closed account indicates a lawyers unfitness
for the trust and confidence reposed on her. It shows a lack of personal
honesty and good moral character as to render her unworthy of public
confidence. The issuance of a series of worthless checks also shows the
remorseless attitude of respondent, unmindful to the deleterious effects of
such act to the public interest and public order. It also manifests a lawyers
low regard to her commitment to the oath she has taken when she joined
her peers, seriously and irreparably tarnishing the image of the profession
she should hold in high esteem.
xxxx
In Barrios v. Martinez, we disbarred the respondent who issued worthless
checks for which he was convicted in the criminal case filed against him. In
Lao v. Medel, we held that the deliberate failure to pay just debts and the
issuance of worthless checks constitute gross misconduct, for which a
lawyer may be sanctioned with one-year suspension from the practice of
law. The same sanction was imposed on the respondent-lawyer in Rangwani
v. Dino having been found guilty of gross misconduct for issuing bad checks
in payment of a piece of property the title of which was only entrusted to
him by the complainant.19
Further, the misconduct of Atty. Espejo is aggravated by her unjustified
refusal to obey the orders of the IBP directing her to file an answer to the
complaint of Victoria and to appear at the scheduled mandatory conference.
This constitutes blatant disrespect for the IBP which amounts to conduct
unbecoming a lawyer. In Almendarez, Jr. v. Langit, We held that a lawyer
must maintain respect not only for the courts, but also for judicial officers
and other duly constituted authorities, including the IBP:
The misconduct of respondent is aggravated by his unjustified refusal to
heed the orders of the IBP requiring him to file an answer to the complaintaffidavit and, afterwards, to appear at the mandatory conference. Although
respondent did not appear at the conference, the IBP gave him another
chance to defend himself through a position paper. Still, respondent ignored
this directive, exhibiting a blatant disrespect for authority. Indeed, he is
justly charged with conduct unbecoming a lawyer, for a lawyer is expected
to uphold the law and promote respect for legal processes. Further, a
lawyer must observe and maintain respect not only to the courts, but also
to judicial officers and other duly constituted authorities, including the IBP.
Under Rule 139-B of the Rules of Court, the Court has empowered the IBP
to conduct proceedings for the disbarment, suspension, or discipline of
attorneys.20
Undoubtedly, Atty. Espejos issuance of worthless checks and her blatant
refusal to heed the directives of the Quezon City Prosecutors Office and the
IBP contravene Canon 1, Rule 1.01; Canon 7, Rule 7.03; and Canon 11 of
the Code of Professional Responsibility, which provide:
CANON 1 A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE
LAWS OF THE LAND AND PROMOTE RESPECT FOR THE LAW AND LEGAL
PROCESSES. Rule 1.01. A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct. CANON 7 A LAWYER SHALL AT ALL TIMES
UPHOLD THE INTEGRITY AND DIGNITY OF THE LEGAL PROFESSION AND
SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR. Rule 7.03 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. CANON 11 A LAWYER
SHALL OBSERVE AND MAINTAIN THE RESPECT DUE TO THE COURTS AND
allowance (COLA) and a separation pay of one months salary per year of
service. Pheschem refused the demand.
On December 5, 2008, Pheschem represented by its Plant Manager, Engr.
Andales, and Engr. Esperidion C. Pascua, Assistant Plant Manager, filed
Special Civil Action (SCA) Case No. 0045-PN with the Regional Trial Court
(RTC) of Palompon, Leyte, Branch 17, for "Injunction, Prohibition,
Mandamus with Damages, with prayer for immediate issuance of 72-hour
and 20-day Temporary Restraining Order (TRO) and Writ of Preliminary
Injunction."9 Named as respondentswere Mayor Tupa, Vice-Mayor Atty.
Surigao, the Sangguniang Bayanof Palompon, Leyte, represented by Atty.
Surigao, Municipal Councilor Atty. Villardo, SPO1 Manolito R. Ilustre, SPO1
Joel M. Suca, Herville V. Pajaron (Pajaron) of the Municipal Environment
and Natural Resources Offices (MENRO) of Palompon, HESG German Cliton,
Diosdado Perales and BarangayChairman Longcanaya.
On December 8, 2008, the RTC issued a 72-hour TROas well as commanded
the respondenttown officialsto release Pheschems trucks and to stop
obstructing its quarrying operations.10 The next day, the respondents filed
a motion for reconsideration, but on December 22, 2008, the RTCwent on
to issue a writ of preliminary injunction against the municipal officialsof
Palompon, including herein respondents, to stop interfering in Pheschems
quarry operations,11 to wit:
WHEREFORE, after hearing the pros and cons of both parties in the aboveentitled case onthe application of petitioner for preliminary injunction, this
court hereby grants the same with the following specific orders.
1. Enjoining the respondent incumbent Municipal Mayor of Palompon and all
or any person under his direction, and all theother respondents herein from
stopping, interfering, preventing[,]and doing acts of harassmentsagainst
the herein petitioner or any of its officers, employees and laborers or its
vehicles and properties in the operation [of] its quarry sites and plant site in
the Municipality of Palompon[.]
2. Prohibiting the Vice-Mayor, Atty. Lloyd Surigao, and the Sangguniang
Bayan of Palompon from interfering, doing acts of harassmentsand other
acts which will hamper the legitimate operation of petitioners quarry sites
and plant.
3. Enjoining and prohibiting Barangay Chairman Eddie Longcanaya from
collecting the Php100.00 peso imposition and from further setting up road
blocks to prevent petitioner from using the subject road.
SO ORDERED.12
In apparent defianceof theabovewrit, on January6, 2009Atty. Surigao,
accompanied by Pajaron, head of Palompons MENRO, and several
policemen, entered Pheschems quarry site and seized three (3) of its dump
trucks.13 On January 9, 2009, Mayor Tupa, Atty. Surigao, and Pajaron
executed a Joint Complaint Affidavit14 seeking to cancel Pheschems
provincial quarry permit. But in a Resolution15 dated March 20, 2009, the
Office of the Provincial Governor of Leyte dismissed the complaint.
On January 13, 2009, the day Pheschem was to resume its operations at
the San Miguel quarry site, it obtained the release of its equipment,16 but
again on January 16, 2009, the trucks were impounded for the third time in
the act of hauling limestone from Tangogsproperty in Barangay San Miguel,
10
hereby REVERSED and SET ASIDE[. I]nstead[,] Atty. Lloyd P. Surigao and
Atty. Jesus A. Villardo III are hereby SUSPENDED from the practice of law
for one (1) month.28
On April 29, 2013, the respondents manifested29 to the IBP Board of
Governors that on February 19, 2013, the CA had lifted the writ of
preliminary injunction in SCA Case No. 0045-PN, having found grave abuse
of discretion in the issuance of the RTC orders subject of the consolidated
petitions in CA-G.R. SP Nos. 04547, 04592 and 04901:30
We find and so rule that the RTCs Order dated 22 December 2008,
granting respondent PHESCHEMS application for writ of preliminary
injunction, the Resolution dated 22 July 2009 denying the dissolution of the
injunctive writ so issued, and Order dated 15 January 2009,enforcing the
same injunctive writ, constituted manifestly grave abuse of discretion.31
It was only on July 3, 2013 that the respondents received a copy of the IBP
Resolution No. XX-2013-327 suspending them for one month from the
practice of law. They forthwith filed a Manifestation with Motion for
Reconsideration32 on July 11, 2013 wherein they reiterated, invoking the
CA decision, that they were only genuinely motivated in their actuations
against Pheschem to implement the environmental laws. They pointed out
in particular that Quarry Permit No. 8, which Engr. Andales had assigned to
Pheschem, was not for limestone but for rock asphalt. On August 6, 2013,
Pheschem filed its Comment, again insisting that the respondents employed
illegal "vigilante methods" instead of legal processes in discharging their
duties as town officials. Pheschem also mentioned its pending motion for
reconsideration from the CA decision.
Our Ruling
We resolve to dismiss the complaint for disbarment against the
respondents.
In her Report and Recommendation, Commissioner Villanueva-Maala found
based on the facts, evidence and the law that the respondents were merely
performing their duties as town officials; that their conduct was not of such
a character as to affect their qualification as lawyers or demonstrate their
moral delinquency; and that nothing in the record shows that they were
motivated by malice, ill-intent or bad faith.
In its Motion forReconsiderationto theabove reportfiledon October 15, 2012,
Pheschem insisted that the respondentsacts were manifestly in excess of
their legal authority; that the regulatory agencies which granted them
permits did not violate any law and the respondentsattack on its ECC was
without merit; that the respondentsinsistence that Pheschem operated
without a local permit was self-serving because it was themwho refused
Pheschem a permit; that the respondents acted in defiance of the injunction
granted by the RTC; and,that Atty. Surigao used his office to harass
Pheschem in a private case. As to the town officialsauthority to stop its
quarrying operations, Pheschem argued that under Section 17(b) of
Republic Act (R.A.) No.7160, or the "Local Government Code,"
municipalities are not entrusted with power over mined resources but only
the DENR and the provincial and city governments. These competent
agencies did not find any violations by Pheschem, thus, the respondents
had no right to demand that Pheschem obtain certain permits from the
11
12
13
14
to Pheschem from October 17, 2008 to April 17, 2009. But a certification
dated October 16, 2008 by Engr. Romeo N. Cartalla of the Munieipal
Planning and Development Council of Palompon disclosed that the site is
not a mining or quarry area but a residential zone. Also, San Miguel has
already been declared as within the Palompon Forest Reserve under
Presidential Proclamation No. 212, and identified as such under R.A. No.
7586, otherwise known as the National Integrated Protected Areas Systems
Act.
Lastly, in addition to the violations by Pheschem of the terms and
conditions of the ECC and quarry permit, the respondents alleged that its
Mining Lease Agreement and quarry permit have expired, and there is no
showing that they have been renewed.
In conclusion, rather than this Court penalizing the respondents for their
supposed abusive and arbitrary actuations not befitting the moral character
required of members of the bar, there is ample showing that their conduct
was pursuant to the diligent performance of their sworn duties and
responsibilities as duly elected officials of the Municipality of Palompon,
Leyte. They therefore deserve commendation, instead of condemnation,
and not just commendation but even encouragement, for their vigilance and
prompt and decisive actions in helping to protect and preserve the
environment and natural resources of their Municipality.
WHEREFORE, the disbarment complaint filed by Pheschem Industrial
Corporation against lawyers Lloyd P. Surigao and Jesus A. Villardo III is
DISMISSED.
SO ORDERED.
15
On October and November 1998, the DAR Secretary, without acting on the
application for exclusion, cancelled the Berenguers certificates of title on
the land and issued Certificates of Land Ownership Award3 (CLOAs) in favor
of the members of the Baribag Agrarian Reform Beneficiaries Development
Cooperative (BARIBAG).
Eventually, DAR Regional Director Percival Dalugdug (Dalugdug) denied
their application for exclusion from the CARPs coverage in the Order4 dated
February 15, 1999 based on the Investigation Report dated February 9,
1999 submitted by the DAR Region V Investigation that said area sought to
be excluded is principally devoted to coconuts and not the raising of
livestock.5
Aggrieved, the Berenguers filed a notice of appeal6 with the Secretary of
DAR.
While the case was pending appeal, BARIBAG filed a petition7 for the
implementation of the Order dated February 15, 1999 before the Regional
Agrarian Reform Adjudicator (RARAD). This was granted by Florin, as
RARAD, in an Order8 dated March 15, 1999. Accordingly, Florin directed the
issuance and implementation of the Writ of Possession.9
On March 19, 1999, the Berenguers filed a motion for reconsideration,10
claiming that they were denied due process as they were not furnished with
a copy of BARIBAGs petition for implementation. Florin denied the motion
for reconsideration for lack of merit in an Order11 dated March 22, 1999.
On March 25, 1999, the Berenguers appealed12 to the DAR Adjudication
Board (DARAB). BARIBAG, on other hand, filed a Motion for the Issuance of
a Writ of Possession.13 The Berenguers opposed14 the motion saying that
the execution would be premature in view of their pending appeal before
the DARAB. Nevertheless, BARIBAG still filed a Motion for the Appointment
of a Special Sheriff.15
In his Order16 dated April 6, 1999, DAR Acting Secretary Conrado S.
Navarro denied the Berenguers appeal.
On April 8, 1999, Florin issued a Resolution,17 which granted BARIBAGs
Motion for the Appointment of a Special Sheriff and ordered the issuance of
the writ of possession prayed for.
On April 13, 1999, the Berenguers filed a motion to set aside18 the
Resolution dated April 8, 1999, arguing that: the DARAB already acquired
jurisdiction over case when they seasonably filed an appeal before it; and
that Florin should have waited until the DARAB has decided the appeal. In
an Order19 dated April 21, 1999, Florin denied the said motion prompting
the Berenguers to move for her inhibition20 on ground of partiality.
The Berenguers elevated the matter via petition for certiorari to the Court
of Appeals (CA), docketed as CA-G.R. SP No. 51858, which was denied
outright on procedural grounds, to wit: (1) copy of the assailed order bears
the words "certified true copy" but the name and authority of the person
certifying is not indicated as required in SC Circular No. 3-96, and the
signature therein is illegible; (2) only one of the petitioners signed the
certification on non-forum shopping which is an insufficient compliance of
Section 1, Rule 65 of the 1997 Rules of Court; and (3) there is nonexhaustion of administrative remedies as the assailed order of the Regional
Director is not directly reviewable by the CA.21
16
Undaunted, the Berenguers filed a second petition for certiorari with the CA,
docketed as CA-G.R. SP No. 53174, which questioned the Orders dated
March 15, 1999 and March 22, 1999 issued by Florin. The petition was also
denied on grounds of lack of jurisdiction and wrong mode of appeal.22
Thus, Florin issued on April 21, 1999 a Writ of Possession23 in favor of
BARIBAG.
Florin subsequently directed the full implementation of the writ of
possession pursuant to Rule 71 of the Rules of Court in spite of the
Berenguers protestations.24
On June 3, 1999, the Berenguers moved to quash25 the Writ of Possession,
to no avail.
On August 4, 1999, the complainants filed the instant Complaint26 for the
disbarment of respondents Florin, Jornales, in his capacity as Assistant
Regional Director for DAR, and Vega, in his capacity as DAR Legal Officer V,
for allegedly conspiring and confederating in the commission of the
following acts:
A. ATTY. ISABEL E. FLORIN AS REGIONAL ADJUDICATOR KNOWINGLY
RENDERING AN UNJUST JUDGEMENT, ORDERS AND RESOLUTIONS
ADVERSE AND PREJUDICIAL TO THE INTEREST OF PETITIONERS;
B. ISSUING AN ORDER AND GRANTING A WRIT OF EXECUTION EX-PARTE
AND SUBSEQUENTLY ISSUING AND SIGNING THE WRIT OF POSSESSION
WITHOUT CERTIFICATION OF FINALITY ISSUED BY THE PROPER OFFICER
FULLY KNOWING THAT SHE HAS NO AUTHORITY AND TOTALLY
DISREGARDING THE APPLICABLE RULES AND IN CONTRAVENTION WITH
THE NEW RULES OF PROCEDURE OF THE DEPARTMENT OF AGRARIAN
REFORM ADJUDICATION BOARD; FURTHER, HIDING THE WRIT OF
POSSESSION FROM PETITIONERS INSPITE OF REQUEST FOR A COPY;
C. REFUSING TO TAKE ACTION ON PLEADINGS FILED BY PETITIONERS
THRU COUNSEL AND FAILING AND REFUSING TO CONDUCT A HEARING AS
PRAYED FOR BY COUNSEL; FAILING AND REFUSING TO FORWARD THE
APPEAL TO THE PROPER APPELLATE BOARD;
D. UNWARRANTED INTERFERENCE IN LAWYER-CLIENT RELATIONSHIPS TO
THE PREJUDICE OF PETITIONERS AND LAWYER; ABUSE OF AUTHORITY TO
CITE COUNSEL FOR PETITIONER IN CONTEMPT AND ISSUING AN ORDER
OF ARREST WITHOUT HEARING CONTRARY TO THE RULES OF COURT;
E. ATTY. MARCELINO JORNALES AND ATTY. PEDRO VEGA, INSPITE OF
THEIR KNOWLEDGE OF THE ILLEGALITY OF THE WRIT OF POSSESSION,
PERSISTED AND ASSISTED IN THE ILLEGAL IMPLEMENTATION OF THE
WRIT OF POSSESSION TO THE PREJUDICE OF LEGITIMATE FARMERS AND
PETITIONERS.27
Florin filed her Comment28 stating, among others, that: (1) the writ of
possession is anchored on the CLOAs issued by the Register of Deeds, and
not on a final and executory decision that would require a certification of
finality as prescribed by the DARAB rules; (2) Atty. Federico De Jesus (De
Jesus), as Berenguers counsel, was not furnished with a copy of the writ
because it was not yet issued at the time when it was requested; (3) there
was no intent to hide the writ; (4) when the writ of possession was finally
signed, it was delivered to the sheriff for service and enforcement; (4) it
was unfair to impute illegal acts against Vega and Jornales as DAR lawyers
17
in view of the DARs denial of the motion for a cease and desist order and
because of the legal presumption of regularity in the performance of their
duty; (5) the petitions for certiorari filed with the CA were both dismissed;
and (6) the findings of DAR and the issuance of the CLOAs remain
undisturbed. Florin also claimed that it is Atty. De Jesus who wants her
disbarred and not the Berenguers.
In a separate Comment,29 Vega denied the allegations against him arguing
that: (1) the writ of possession is not illegal in the absence of a court order
stating its invalidity; (2) he did not participate in the issuance of the writ of
possession because he did not appear as the farmers counsel; (3) the Legal
Division he heads has no control or influence over the DARAB; and (4) his
presence in the execution of the writ of possession was to ascertain that no
violations against any law are committed by the person/s executing the
writ.30
Jornales Comment,31 for his part, stated that: (1) the writ has no prima
facie infirmity; (2) he is not privy to the issuance thereof; (3) he has no
supervision and control over the DAR which issued the writ; and (4) he has
no authority to determine the writs validity or invalidity. Jornales admitted,
however, that he was in the meeting presided by the PNP Provincial Director
of Sorsogon prior to the writs implementation in his capacity as Regional
Assistant Director for Operations of DAR Region V and not as a lawyer. He
added that the disbarment complaint against him is not only malicious for
lack of legal basis but is also meant to harass and intimidate DAR
employees in implementing the CARP.32
After the complainants filed their Consolidated Reply,33 the case was
referred to the Integrated Bar of the Philippines (IBP) for investigation,
report and recommendation.
IBP Commissioner Milagros San Juan (Commissioner San Juan)
Recommended34 that Florin be "suspended from the practice of law for
three (3) years for knowingly rendering an unjust judgment, Orders and
Resolutions adverse and prejudicial to the interests of the Complainants."
Commissioner San Juan, meanwhile, recommended that the charges
against Jornales and Vega be dismissed for failure of the complainants to
substantiate the charges against them.35
Commissioner San Juans recommendation against Florin is based on the
findings36 of the CA in its Decision dated December 26, 2000 in CA-G.R. SP
No. 53174,37 which reads:
The Petition for Certiorari filed by the complainants before the Court of
Appeals was treated as a petition for review and the court found the
following errors:
"1) Respondent DAR Secretary has no jurisdiction over the subject
properties being devoted to pasture and livestock and already classified as
residential and industrial land, hence, outside the coverage of Republic Act
6657. (Comprehensive Agrarian Reform Law) The generation and issuance
of Certificate of Landownership Award (CLOA) was therefore void;"
2) Being outside the coverage of CARL (Republic Act 6657), respondent
Hon. Isabel E. Florin who is exercising delegated jurisdiction from the
DARAB has no jurisdiction over Petitioners Properties as held in Krus na
18
Ligas Farmers Coop vs. University of the Philippines; G.R. No. 107022, 8
December 1992, which is squarely in point with the case at bar."
Anent the issue regarding the qualified beneficiaries of the subject land, the
Court ruled thus "Assuming that the lands are indeed agricultural, we
cannot understand why the DAR awarded them to members of respondent
Baribag and not to the farmers in the area, in violation of Sec. 22 of the
CARL x x x."
The court further stated "We cannot xxx close this discussion without
mentioning our observation on the actuations of Regional Agrarian Reform
Adjudicator Isabel Florin. Just why she issued a writ of execution and
eventually a Writ of Possession in favor of respondent Baribag puzzles us no
end. She knew that Baribag is not a party in petitioners application for
exclusion filed with the Office of DAR Regional Director Percival Dalugdug.
Obviously, she never acquired jurisdiction over Baribag. She also knew that
petitioners appealed to the DAR Secretary from the Order of Regional
Director Dalugdug dismissing petitioners application for exclusion. Clearly,
such order was not yet final and executory when she issued the assailed
writs of execution and possession. Thus, the writ are [sic] void and would
be set aside."38
On May 26, 2006, the IBP Board of Governors adopted Resolution No. XVII2006-282 modifying the recommended penalty, viz:
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
for knowingly rendering an unjust Judgment, Orders and Resolutions,
adverse and prejudicial to the interest of the complainants, Atty. Isabel F.
Florin is hereby SUSPENDED from the practice of law for one (1) year. The
charges against Atty. Marcelino Jornales and Atty. Peter Vega are
DISMISSED for failure of the complainants to substantiate the charges
against Respondents.39
In her opposition,40 Florin averred that: (1) jurisdiction was acquired over
BARIBAG at the time it filed a petition for the implementation of the Order
dated February 15, 1999; (2) the DARAB has jurisdiction to issue the
CLOAs; (3) as RARAD, she has concurrent jurisdiction with DARAB; (4) the
Berenguers were not denied due process; and (5) the Berenguers never
questioned the regularity of the DARs acquisition of their landholding nor
did they file a petition for the cancellation of the CLOAs issued to BARIBAG.
This Court agrees with the findings of the IBP Board of Governors but
modifies the penalty to be imposed.
Rule 138, Section 27 of the Rules of Court provides:
SEC. 27. Disbarment or 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
19
20
21
22
vs.
EDGAR ESPONILLA, Legal Researcher and Officer-In-Charge, and
JENNIFER DELA CRUZ-BUENDIA, Clerk of Court and Ex-Officio
Sheriff, Office of the Clerk of Court, Regional Trial Court, Branch 54,
Manila, Respondents.
DECISION
VILLARAMA, JR., J.:
This case is one among many where the irregularities complained of are
evident and blatant yet its resolution has been protracted for years. While
this Court has already ruled on the liability of the respondents in its October
30, 2006 Decision,1 it directed another administrative investigation to
search for the "missing link" which -if found -would have established the
culpability of the perpetrator of these irregularities.
On March 30, 2004, complainant Elpidio Sy (Sy), President of Systems
Realty Development Corporation, filed a verified Complaint2 charging
respondent Edgar Esponilla, Legal Researcher and then Officer-In-Charge of
Branch 54 of the Regional Trial Court of Manila (Branch 54), and Atty.
Jennifer Dela Cruz-Buendia (Atty. Dela Cruz-Buendia), Clerk of Court and
Ex-officio Sheriff of the Regional Trial Court of Manila, with Gross
Misconduct, Negligence and Dishonesty. The complaint was filed in
connection with the withdrawal of deposits for monthly rentals deposited
with Branch 54 in Civil Case No. 90-55003 entitled Maria Gagarin, et al. v.
Bank of the Philippine Islands and Systems Realty Development
Corporation.
Complainant had previously filed an ejectment case with Branch 1 of the
Metropolitan Trial Court of Manila against Jaime Ang Tiao and Maria Gagarin
who were eventually ejected from the property. On appeal, the case was
assigned to Branch 32 of the Regional Trial Court of Manila (Branch 32)
where supersedeas bond and monthly rentals covering the period from
September 30, 1994 to January 3, 1997were deposited. Simultaneously,
Ang Tiao and Gagarin filed with Branch 54 a case, docketed as Civil Case
No. 90-55003, contesting the validity of a deed of sale executed between
Systems Realty Development Corporation and BPI.3 The plaintiffs deposited
with Branch 54 the sum of P264,000.00 to cover rental deposits from June
30, 1989 to August 5, 1994.
Upon a purported Ex-Parte Motion to Withdraw Rental Deposits (Ex-Parte
Motion) in Civil Case No. 90-55003 filed by Atty. Walfredo Bayhon (Atty.
Bayhon), counsel for plaintiffs Ang Tiao and Gagarin, the late Judge
Hermogenes R. Liwag (Judge Liwag) issued the subject Order dated
November 11, 1994, allowing the withdrawal of the deposits amounting to
P260,000.00, viz.:
Finding the Ex-Parte Motion to Withdraw Rental Deposits filed by plaintiffs,
thru counsel, to be well-taken, the same is hereby GRANTED, and the Clerk
of Court, or her duly authorized representative, is hereby ordered to release
to plaintiffs, or their duly authorized representative, the deposits made by
such parties in the concept of rentals from May, 1989 to August, 1994 in
the estimated aggregate sum of P260,000.00.
It is well to emphasize here that such deposits were made in the concept of
monthly rentals for the plaintiffs occupancy of the premises in controversy,
23
here and in the ejectment suit now on appeal with Branch 32 of this same
Court. It would appear, however, from the attachments to the Motion to
Withdraw Rental Deposits that sufficient supersedeas bond was already
posted in that appealed ejectment bond case by the plaintiffs hereto,
defendants therein, in the total sum of P260,000.00. Surely, the rental
deposits made in this case become superfluous and serve no legal purpose.
It is actually duplicitous and its non-release would actually prejudice the
plaintiffs.4
Judge Liwag was then the Pairing Judge of Branch 54 where Civil Case No.
90-55003 was docketed and the questioned Order was issued. He was
likewise then the Presiding Judge of Branch 55 where, as the investigation
would later show, Atty. Bayhon filed the Ex-Parte Motion. The assailed
Order was also typed by an employee of Branch 55. Based on this Order,
Ang Tiao was able to withdraw P256,000.00 from the Office of the Clerk of
Court of the Regional Trial Court of Manilaasevidenced by a disbursement
voucher5 dated November 14, 1994 certified by respondent Atty. Dela
Cruz-Buendia and approved by then Acting Court Cashier Corazon L.
Guanlao.
Complainant alleged that the withdrawal of the rental deposits was irregular
because the claim in the Ex-Parte Motion to Withdraw Rental Deposits that
the amount withdrawn from Branch 54 was superfluous and duplicitous is
false. He asserted that Atty. Bayhon falsely alleged that there was already a
sufficient supersedeas bond posted with Branch 32 to justify the withdrawal
of the rental deposits made in Branch 54.6 Complainant pointed out that
there could have been no such duplication because the deposits made with
Branch 54 covered the period from June 30, 1989 to August 5, 1994, while
those made in Branch 32 were for the period covering September 30, 1994
to January 3, 1997.7 Complainantthus concluded that when Judge Liwag
granted the Ex-Parte Motion, he did not first ascertain the veracity of the
allegations therein.8Complainant explained that he could not have objected
to the false allegations made by Atty. Bayhon because he was not furnished
a copy of the Ex-Parte Motion and the same was never set for hearing.9
It is of material significance in the case at bar that the Ex-Parte Motion does
not appear anywhere in the records of Branch 54 on Civil Case No. 9055003, andthe fact that these documents were not attached to the case
folio were discovered only when the records of the case were elevated to
the Court of Appeals.10
Complainant faulted respondent Dela Cruz-Buendia, who was then the
Assistant Clerk of Courtforbeing negligent and connivingwith the plaintiffs in
the said civil case when she allowedand facilitatedthe release of the
deposits without first verifying the authenticity of the Ex-Parte Motion and
Order.11 Complainant also charged respondent Esponilla with gross
negligence for failing to safeguard vital case records and connivance with
the plaintiffs in the same civil case.12
Respondent Dela Cruz-Buendia denied the charges against her and asserted
that the functions of a clerk of court are purely ministerial in nature. As
such, a clerk of court does not possess the discretion to follow or not to
follow orders of the court.13 Respondent Esponilla, on the other hand,
prayed that the complaint against him be dismissed. He alleged that he was
24
not the Officer-In-Charge of Branch 54 when the Order granting the ExParte Motion was allegedly issued by Judge Liwag on November 11, 1994.
Esponilla was designated as Officer-In-Charge only in March 1995.14
On November 9, 2004, the Office of the Court Administrator (OCA) referred
the instant complaint to the Executive Judge of the Regional Trial Court of
Manila for investigation, report and recommendation.15 In a Report and
Recommendation16 dated February 1, 2006, then Executive Judge Antonio
M. Eugenio, Jr. submittedthe following findings:
Respondent Edgar Esponilla cannot be faulted for any of the acts
complained of as he was appointed officer-in-charge of Branch 54 only in
March 1995 and the questioned order was issued by Pairing Judge
Hermogenes Liwag on November11, 1994.Nor did he have a hand in the
preparation and release of the check to the plaintiffs on November 14, 1994
or sometime thereafter.
xxxx
As to respondent Clerk of Court, we likewise find her explanations
meritorious.In the instant case, the duty of the Clerk of Court and/or
respondent Buendia xxx is ministerial.
Upon receipt of an order from a court, the Clerk of Courts duty is to make
sure that the order is complied with. x xx For a Clerk of Court to question a
ruling or order of a judgeis an invitation for contempt.
xxxx
The pivotal issue that should be addressed is why Atty. Walfredo Bayhon
filed the motion in the first place and why then Pairing Judge Hermogenes
Liwag favorably acted on it without looking into the truth of the allegation of
"duplicity and superfluity."
xxxx
Accordingly, it is respectfully submitted that the administrative complaint
filed against respondents Edgar Esponilla and Jennifer de la Cruz[-]Buendia
be dismissed for lack of merit.
It is further recommended that Atty. Walfredo Bayhon be asked to explain
the circumstances behind his filing of the Ex-Parte Motion and to provide
the Supreme Court with a true copy of the motion.17
In a Memorandum18 dated June 5, 2006, the OCA submitted its evaluation
and recommendation adopting the findings and recommendation of
Executive Judge Eugenio, as follows:
RECOMMENDATION: In view of the foregoing discussions, it is respectfully
submitted that the administrative complaint filed against respondents Edgar
Esponilla and Atty. Jennifer dela Cruz-Buendia be DISMISSEDfor lack of
merit.
Consequently, it is further recommended that Atty. Walfredo Bayhon be
asked to EXPLAINthe circumstances behind his filing of the Ex-Parte Motion
and to provide the Court with a true copy of themotion.19
In a Decision20 dated October 30, 2006, this Court dismissed the
administrative case against respondent Esponilla for lack of merit.The Court
ruled that Esponilla not being the Officer-In-Charge when the subject
documents were allegedly processed with Branch 54 cannot be faulted for
the missing documents in the folio of Civil Case No. 90-55003.21 The Court
also did not find proof that Esponilla participated in the preparation and
25
release of the check to the plaintiffs.22 For lack of evidence,the Court was
not convinced that Esponilla connived with either the plaintiffs in the civil
case or with the other respondents to perpetuate fraud against the
complainant.23
Respondent Dela Cruz-Buendia was found guilty of simple negligence in the
performance of her duties and was fined in the amount of OneThousand
Pesos (P1,000.00), with a warning that a repetition of the same or similar
infraction will be dealt with more severely.24 Atty. Bayhon, for his part, was
ordered to explain within ten (10) days from receipt of the Decision the
circumstances behind the filing of the Ex-Parte Motion and to provide the
Court with a true copy of the Motion.25 The Court required Atty. Bayhons
explanation in order to shed light on the circumstances leading to the
issuance of the November 11, 1994 Order and the release of the rental
deposits.26
The Court, in the said Decision, stated that the duties27and functions of
clerks of court as officers of the law are generally administrative in nature
and do not involve the discretion on the use of judicial powers.28 It ruled
that while respondent Dela Cruz-Buendias duties as then clerk of court
were purely ministerial, "ordinary prudence [would have called] for her to
[have] at least [verified] the authenticity and origin of the alleged Order of
Judge Liwag because from the copies on record, we note that the same
does not bear the seal of the Court nor the standard certification by the
branch clerk of court. She should have been vigilant considering that the
Order dealt with withdrawal of deposits."29
The Court further noted the finding of the OCA that per the investigationof
Judge Enrico A. Lanzanas, "the purported Order of Judge Liwag was actually
prepared in Branch 55 by one Baby Manalastas."30 Since this finding does
not fully explain why the said Order and the Ex-Parte Motion were not filed
in the case folio of Civil Case No. 90-55003, the OCA was directed to
conduct an investigation against the then clerks of court of Branches 54 and
55 during the period material to this case in order to explain the
circumstances behind their improper management of court records and
documents.31
In a Motion for Reconsideration32 dated December 28, 2006, respondent
Dela-Cruz-Buendia averred that she should not be found guilty of simple
negligence. She argued that her delegated duty in relation to the
withdrawal of the rental deposits the physical preparation of the checks
issued by the Office of the Clerk of Court was ministerial and she had no
choice but to prepare the subject check based on the Order lest she be
cited for contempt. She stated that she did not have to verify the
authenticity of the Order because it is presumed to have been regularly
issued. Besides, she argued that the Order submitted to the Office of the
Clerk of Court "was a duplicate original copy, appeared to be authentic on
its face, showed no palpable nor patent, no definite nor certain defects, duly
signed by the Honorable Judge Hermogenes Liwag, counterchecked by the
subordinate personnel involved in the preparation of vouchers, namely:
Corazon L. Guanlao, Court Cashier and Rosa S. Rayo."33She allegedly
signed and issued the check after the voucher was prepared and signed by
the Acting Court Cashier and Clerk-in-Charge; the attachments, including
26
the duplicate original copy of the Order, were attached to the voucher. With
a "duplicate original copy" of the Order, respondent Dela Cruz-Buendia
argued that there was no need to further require a "certified true copy."
The Court, in a Resolution34 dated January 31, 2007, resolved to deny the
motion with finality as no substantial matters were raised to warrant a
reconsideration thereof. Respondent Dela Cruz-Buendia filed a subsequent
Supplemental Motion for Reconsideration35 which was Noted Without Action
by the Court in its March 19, 2007 Resolution.36
In a Compliance/Explanation37 dated September 28, 2007, Atty. Bayhon
explained that he was not in a position to comply with the Courts resolution
because he had long ceased to be the counsel of record of the plaintiffs in
Civil Case No. 90-55003. He further averred that he had already turned
over the records of the case to Ang Tiaos family when he withdrew as
counsel in 1997 to join a multinational corporation. Atty. Bayhon also
requested that he be allowed to adopt in totothe pleadings and arguments
raised in his Answer38 and Position Paper39 submitted to the Integrated
Bar of the Philippines (IBP) in view of a disbarment complaint filed against
him also by herein complainant Sy. Both of these pleadings submitted to
the IBP however failed to shed light into the circumstances surrounding the
issuance of the assailed Order which granted the Ex-Parte Motion which
allegedly could not now be located by Atty. Bayhon. He also sustained his
averment that there is nothing on record to establish that he made an
allegation that the deposits made with Branch 54 were superfluous and
duplicitous.
On January 3, 2008, the OCA submitted its Report and Recommendation40
to the Court, in compliance with the Resolution41 of the Third Division
directing the OCA to conduct an investigation on the mismanagement of
court records in Branches 54 and 55 of the Regional Trial Court of Manila. It
submitted the following findings:
It would appear that the incident in Civil Case No. 90-55003 was an isolated
anomaly. The case involved rental deposits amounting to almost
P260,000.00 that were released by virtue of a November 11, 1994 order
issued by Judge Liwag, which order granted the Ex-Parte Motion to
Withdraw Rental Deposits filed by Atty. Bayhon. According to the October
30, 2006 decision of the Court, the order granting the motion was drafted
by Ms. Baby Manalastas, a court stenographer in RTC Branch 55 who has
since migrated to the United States.
Based on the information gathered by the audit team, the Clerk of Court of
RTC Branch 54 for the period November 1994 was Atty. Emerenciana O.
Manook. Atty. Manook, who now serves as Clerk of Court VI of RTC, Branch
23, Allen, Northern Samar, was the Clerk of Court of RTC, Branch 54,
Manila from July 1,1989 to March 29, 1995.
On the other hand, the Officer-in-Charge (OIC) of RTC Branch 55 for the
period November 1994 was Ms. Isabelita D. Artuz. Ms. Artuz served as OIC
of the branch from September 1994 until November 1996 xxx.42
In light of these findings, the Court, in another Resolution43 dated February
11, 2008, adopted the following recommendations of the OCA:
1.That Atty. Emerenciana O. Manook, Clerk of Court, RTC, Branch 23, Allen,
Northern Samar, and Ms. Isabelita D. Artuz, Office of Court of Appeals
27
28
29
Motion could not be found in the case folio from the said branch; it was
later found that the Ex-Parte Motion was filed with Branch 55 where the
case was not docketed; the Order granting the Motion was typed by a court
stenographic reporter of Branch 55; nonetheless, the Motion could not be
located among the files of Branch 55.
The Court had sought the explanation of Atty. Bayhon to shed light on the
circumstances surrounding the filing of the Ex-Parte Motion, and to exert
his best efforts to furnish usa copy of the said motion. The compliance of
Atty. Bayhon was sought as early as October 30, 2006 the date when the
Court promulgated its Decision pertaining to the liability of herein
respondents. It was in light of the Courts recognition that some form of
irregularity was committed in this case that prompted it to look at all angles
and request an explanation from every relevant source of information.
However, Atty. Bayhon, instead of shedding light in the discussion, only
proffered unresponsive answers that were mostly reiterations of his
averments in the pleadings he had earlier submitted to the IBP. As aptly
observed and succinctly described by the OCA:
Atty. Bayhons explanations are unsatisfactory. His words are evasive and
carefully selected as to free him from any liability. They do not directly
confront the nagging questions, merely offering as excuses his resignation
as counsel of record and turn-over of documents to his clients, and blaming
his adversarys negligence. However, he himself isto be greatly blamed for
not promptly and fully complying with the directives of the Court,
particularly the 25 March 2009 Resolution and the subsequent resolutions
which dragged this case for so long a time. He refused to answer why he
filed the subject motion at Branch 55, not at Branch 54. He did not
comment on the allegation that the complainant in the civil case was not
furnished a copy of the said motion which was not even set for hearing. He
did not exert his best efforts in locating or producing the motion for
submission to the Court. And he complied with the resolutions rather
belatedly, or after he was threatened by the Court with arrest. It appears
that he took the Courts directives lightly.
Worse, Atty. Bayhon completely ignored the sanction ofthe Court in its 01
December 2010 Resolution imposing upon him a fine of P500.00. After
almost two (2) years and several resolutions reiterating the said resolution,
he has not paid the fine or even mentioned the penalty in his 01 October
2012 compliance.
A resolution of the Supreme Court should not be construed as a mere
request, and should be complied with promptly and completely. Such failure
to comply accordingly betrays not only a recalcitrant streak in character,
but also disrespect for the Courts lawful order and directive.61 This
contumacious conduct of refusing to abide by the lawful directives issued by
the Court has likewise been considered as an utter lack of interest to
remain with, if not contempt of, the system.62 As a lawyer and an officer
ofthe court, Atty. Bayhon should have been more than conscious and aware
of his duty to strictly follow the Courts orders and processes without
unreasonable delay.63
We agree with the accurate and incisive discussion of the OCA on all points,
except for thepenalty imposed. The OCA imposed upon Atty. Bayhon an
30
additional fine of P2,000.00 to the original fine of P500.00 for noncompliance with the directives of the Court. This additional fine was also
imposed for Atty. Bayhons continuously ignoring the several Court
resolutions reiterating the payment of the original fine.64
Atty. Bayhon should be imposed a stringer penalty. The disobedience and
the consequent delays he incurred had protracted the pace of the
administrative investigation in the case at bar. While Atty. Bayhon may
have apologized to this Court a number of times, his sincerity is not
reflected in the manner that he would deal with the Court after each
tendered apology: he would again not comply, and hence cause delay, to a
subsequent resolution in clear violation of the Lawyers Oath65 which
states, among others, that a lawyer "will conduct [himself] as a lawyer
according to the best of [his] knowledge and discretion, with all good
fidelity as well to the courts as to [his] clients."
Aside from not complying with the resolutions of the Court, the evidence on
record is clear that Atty. Bayhon also violated Canon 10, Rule 10.01 of the
Code of Professional Responsibilitywhich states that "[a] lawyer shall not do
any falsehood, nor consent to the doing of any in Court; nor shall he
mislead, or allow the Court to be misled by any artifice."It is significant that
Atty. Bayhon has consistently claimed that there is no proof to show that he
ever claimed that the amounts deposited with Branch 32 were superfluous
and duplicitous66 the reason used as a basis for the issuance of the
assailed Order.He also stated that from his recollection, if there was a
motion to withdraw cash deposits with Branch 54, there was also a
simultaneous request to the trial court to replace the money with a
supersedeas bond.67 He further stated that "no trial judge worth his salt,
Judge Liwag in this instance, would have allowed such a withdrawal without
a corresponding replacement."68
On its face, however, the following Order of Judge Liwag shows that the
deposits were allowed to be withdrawn due to their "superfluity and
duplicity" vis--vis the supersedeas bond already posted with Branch 32,
and not because the amount withdrawn with Branch 54 was replaced by a
supersedeas bond:
xxxx
It is well to emphasize here that such deposits were made in the concept of
monthly rentals for the plaintiffs occupancy of the premises in controversy,
here and in the ejectment suit now on appeal with Branch 32 of this same
Court. It would appear, however, from the attachments to the Motion to
Withdraw Rental Depositsthat sufficient supersedeas bond was already
posted in that appealed ejectment bond case by the plaintiffs hereto,
defendants therein, in the total sum of P260,000.00. Surely, the rental
deposits made in this case become superfluous and serve no legal purpose.
It is actually duplicitous and its non-release would actually prejudice the
plaintiffs.69
Atty. Bayhons unsubstantiated claim that the deposits withdrawn were
replaced by a supersedeas bond is a legal incredulity. It is a preposterous
excuse that does not only attempt to mislead the Court it was proffered in
an attempt to evade the directive of the Court to produce a copy of the ExParte Motion which may open another can of worms. The Order clearly
31
states that the attachments to the Ex-Parte Motion showed that there was
already a "supersedeas bond" posted with Branch 32 in the amount of
P260,000.00, that is why Judge Liwag ordered and authorized the
withdrawal of the same amount of P260,000.00 from Branch 54. It is
precisely the claim of herein complainant that it was fraudulent
misrepresentation on the part of Atty. Bayhon to make it appear that the
Branch 54 deposits were superfluous because the deposits made with
Branches 32 and 54 were separate, distinct and covered different periods
a false claim that Atty. Bayhon has continuously denied making in the ExParte Motion. But instead of producing and submitting to this Court a copy
of the Ex-Parte Motion to conclusively prove that he did not make such a
false averment, Atty. Bayhon hides behind the rules of evidence claiming
that without the subject Ex-Parte Motion, this allegation against him is but
hearsay.
The OCA appears to be right when it observed that Atty. Bayhon seems to
have a selective memory,70 since he remembers only the matter pertaining
to the supersedeas bond, but has claimed that he no longer remembers the
other circumstances surrounding the filing of the Ex-Parte Motion.71 To be
sure, Atty. Bayhon has never denied having filed the controversial Ex-Parte
Motion, but as pointed out by the OCA:
x x x His explanation about the circumstances surrounding its filing is
unsatisfactory as he did not exert his utmost efforts to locate the
Motionfrom his clients or from the courts. He did not even mention in his
"Explanation/Compliance" that he tried to contact his clients to verify if they
still have in their possession a copy of the Motion.72
For failing to explain, in good faith, the circumstances surrounding the filing
of the Ex-Parte Motion which he himself filed, for proffering misleading
claims in the course of the subject administrative investigation, and for not
having shown and proved that he exerted his best efforts to secure and
submit a copy of the subject Ex-Parte Motion -all in violation of the
resolutions issued by this Court -Atty. Bayhon violated the Lawyer's Oath
and Canon 10, Rule 10.01 of the Code of Professional Responsibility. Under
Section 27, Rule 138 of the Rules of Court, a member of the bar may be
disbarred or suspended from his office as attorney by the Supreme Court
for any violation of the Lawyer's Oath, viz.:
SEC. 27. Disbarment or suspension of attorneys by Supreme Court,
grounds therefor. -A member of the bar may be disbarred or suspended
from his office as attorney by the Supreme Court for any deceit,
malpractice, or other gross misconduct in such office, grossly immoral
conduct, or by reason of his conviction of a crime involving moral turpitude,
or for any violation of the oath which he is required to take before
admission to practice, or for a willful disobedience of any unlawful order of a
superior court, or for corruptly or willfully appearing as an attorney for a
party to a case without authority to do so.xx x
We believe that the proven acts and omissions of Atty. Bayhon in the case
at bar warrant the imposition of the penalty of suspension from the practice
of law for six ( 6) months. He has attempted to mislead the Court, and his
non-compliance with the resolutions of the Court dated March 25, 2009,
December 1, 2010 and August 24, 2011 shows nothing but an indifference
32
33
34
of law for a period of three to six months, with warning that a repetition of
the same or similar offense shall be dealt with more severely.14
On February 19, 2009, the Board of Governors of the IBP issued Resolution
No. XVIII-2009-1415 adopting the recommendation with modifications as
follows:
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 Respondents breach of Rule 12.03, Canon 12, Canon 17, Rule
18.03 and Canon 18 of the Code of Professional Responsibility, Atty.
Diosdado B. Jimenez is hereby SUSPENDED from the practice of law for six
(6) months. The Warning imposed against respondent is hereby deleted.
Respondent sought reconsideration of the resolution but his motion was
denied in IBP Resolution No. XIX-2011-480 dated June 26, 2011.16 The IBP
Board of Governors noted that respondents motion was a mere reiteration
of matters already discussed and there were no substantial grounds to
disturb the February 19, 2009 Resolution.
Respondent now comes to this Court essentially raising the issue whether
the IBP correctly found him administratively liable for violation of Rule
12.03, Canon 12, Canon 17, Rule 18.03, and Canon 18 of the Code of
Professional Responsibility.
After careful consideration of the records of the case, the Court finds that
the suspension of respondent from the practice of law is proper.
The Court finds no merit in respondents contention that complainants have
no personality to file a disbarment case against him as they were not his
clients and that the present suit was merely instituted to harass him.
The procedural requirement observed in ordinary civil proceedings that only
the real party-in-interest must initiate the suit does not apply in disbarment
cases. In fact, the person who called the attention of the court to a lawyers
misconduct "is in no sense a party, and generally has no interest in the
outcome."17
In Heck v. Judge Santos,18 the Court held that "[a]ny interested person or
the court motu proprio may initiate disciplinary proceedings." The right to
institute disbarment proceedings is not confined to clients nor is it
necessary that the person complaining suffered injury from the alleged
wrongdoing. Disbarment proceedings are matters of public interest and the
only basis for the judgment is the proof or failure of proof of the charges.
The Court agrees with the IBP that respondent had been remiss in the
performance of his duties as counsel for Congressional Village Homeowners
Association, Inc. Records show that respondent filed the first motion for
extension of time to file appellants brief 95 days after the expiration of the
reglementary period to file said brief, thus causing the dismissal of the
appeal of the homeowners association. To justify his inexcusable
negligence, respondent alleges that he was merely the supervising lawyer
and that the fault lies with the handling lawyer. His contention, however, is
belied by the records for we note that respondent had filed with the CA an
Urgent Motion for Extension, which he himself signed on behalf of the law
35
firm, stating that a previous motion had been filed but "due to the health
condition of the undersigned counselhe was not able to finish said
Appellants Brief within the fifteen (15) day period earlier requested by
him."19 Thus, it is clear that respondent was personally in charge of the
case.
A lawyer engaged to represent a client in a case bears the responsibility of
protecting the latters interest with utmost diligence. In failing to file the
appellants brief on behalf of his client, respondent had fallen far short of
his duties as counsel as set forth in Rule 12.04,20 Canon 12 of the Code of
Professional Responsibility which exhorts every member of the Bar not to
unduly delay a case and to exert every effort and consider it his duty to
assist in the speedy and efficient administration of justice. Rule 18.03,
Canon 18 of the same Code also states that:
Canon 18A lawyer shall serve his client with competence and diligence.
Rule 18.03.A lawyer shall not neglect a legal matter entrusted to him and
his negligence in connection therewith shall render him liable.
In In Re: Atty. Santiago F. Marcos21 the Court considered a lawyers failure
to file brief for his client as amounting to inexcusable negligence. The Court
held:
An attorney is bound to protect his clients interest to the best of his ability
and with utmost diligence.1wphi1 (Del Rosario vs. Court of Appeals, 114
SCRA 159) A failure to file brief for his client certainly constitutes
inexcusable negligence on his part. (People vs. Villar, 46 SCRA 107) The
respondent has indeed committed a serious lapse in the duty owed by him
to his client as well as to the Court not to delay litigation and to aid in the
speedy administration of justice. (Canons 21 and 22, Canons of Professional
Ethics; People vs. Daban, 43 SCRA 185; People vs. Estocada, 43 SCRA
515).
It has been stressed that the determination of whether an attorney should
be disbarred or merely suspended for a period involves the exercise of
sound judicial discretion.22 The penalties for a lawyers failure to file a brief
or other pleading range from reprimand,23 warning with fine,24
suspension25 and, in grave cases, disbarment.26 In the present case, we
find too harsh the recommendation of the IBP Board of Governors that
respondent be suspended from the practice of law for a period of six
months. Under the circumstances, we deem the penalty of suspension for
one month from the practice of law to be more commensurate with the
extent of respondents violation.
WHEREFORE, the petition is DENIED. Atty. Diosdado B. Jimenez is found
administratively liable for violation of Rule 12.04, Canon 12 and Rule 18.03,
Canon 18 of the Code of Professional Responsibility. He is suspended from
the practice of law for one (1) month effective from finality of this
Resolution, with warning that a repetition of the same or similar violation
shall be dealt with more severely.
Let a copy of this Resolution be furnished, upon its finality, to the
Integrated Bar of the Philippines and all the courts in the Philippines, and
spread on the personal record of respondent lawyer in the Office of the Bar
Confidant, Supreme Court of the Philippines.
SO ORDERED.
36
37
against his will. The habeas corpus case, however, was dismissed after
Kiyoshi appeared in court and testified that he was not detained by Danilo
and Kazuhiro. The complainant averred that the respondent disrespected
the court when, in the motion for reconsideration6 which he prepared, he
stated that he "would have taken the resolution with a grain of salt."7
The complainant further alleged that, after the habeas corpus case was
dismissed, the respondent had spread rumors against the complainant; that
the complainant supposedly detained Kiyoshi and provided him with
women.
In its Order8 dated February 15, 2008, the Commission directed the
respondent to file his answer to the Complaint. In his Answer with
Counterclaim,9 the respondent denied that he was guilty of representing
conflicting interests, asserting that it was Manuel who sought his legal
assistance and not Kiyoshi. He explained that the civil case against Amasula
was actively handled and personally pursued by Manuel, albeit in
representation of the spouses Kimura. He stressed that there has been no
personal and active intervention by Kiyoshi or of Estrelieta in any of the
stages of the case. The respondent claims that, for all intents and purposes,
his client is Manuel and the spouses Kimura were merely
"litigationbeneficiaries-in-waiting." Further, with respect to the falsification
case against Estrelieta and Manuel, the respondent claims that the same
was instituted by Danilo and Kazuhiro and not Kiyoshi.
As to the charge of disrespect to the court, the respondent claims that the
phrase "with a grain of salt" is but a common phraseology that is neither
offensive nor disrespectful. The respondent further denied having spread
rumors to malign the complainant.
On May 2, 2008, the Commission set the case for mandatory conference on
May 27, 2008.10 Only the respondent appeared during the scheduled
mandatory conference.11
On December 2, 2008, the complainant manifested to the Commission that
he is no longer interested in pursuing his complaint against the respondent,
praying that he be allowed to withdraw the same.12
Findings of the IBP Investigating Commissioner
On February 9, 2010, the Investigating Commissioner issued a Report and
Recommendation13 which found the respondent guilty of representing
conflicting interests. Thus:
Based on the complaint and the answer thereto, this Commission finds that
there is no question that the respondent is the counsel in the case filed by
Kiyoshi and Estrelieta against the building contractor, Carlos Amasula. Such
engagement remained until July 31, 2007 when Kiyoshi executed his
"Revocation of Special Power of Attorney and Termination of Attorney".
Thus, when respondent entered his appearance as counsel for Estrelieta
and her brother Manuel in the Falsification complaint (I.S. No. 2007-61),
the respondent was still the counsel of Kiyoshi in the Amasula case. The
defense of the respondent that his client was actually Manuel and not
Kiyoshi and Estrelieta goes contrary to basic principles of law. The
respondent admitted that Manuel was acting as mere agent of Kiyoshi and
Estrelieta by virtue of a Special Power of Attorney. The respondent,
38
therefore, can not deny that Manuels principals, Kiyoshi and Estrelieta,
were his real clients.
xxxx
Furthermore, when Estrelieta and Manuel were subjected to preliminary
investigation for the Falsification charges which was filed by Kiyoshi through
his representative Danilo Estocoming and Kazuhiro Sampie, respondent
consciously and deliberately ran in conflict with his duty to Kiyoshi by
appearing as counsel for Estrelieta and Manuel. The respondent continued
to represent Estrelieta and Manuel opposite Kiyoshi when probable cause
was found against his clients, on appeal with the Department of Justice and
even when the information was filed against them (Criminal Case C-170).
The same situation existed with Civil Case No. 2007-14067 as the
respondent appeared opposite Kiyoshi despite the fact that he was still
Kiyoshis counsel in the Amasula case.14 (Citation omitted)
The Investigating Commissioner absolved the respondent from the charge
of disrespect to the court, asserting that the use of the phrase "with a grain
of salt" is not offensive. The Investigating Commissioner likewise pointed
out that no evidence was presented to show that the respondent had
spread rumor to malign the complainant.
The Investigating Commissioner recommended that the respondent be
suspended from the practice of law for a period of six (6) months.
Findings of the IBP Board of Governors
In a Notice of Resolution15 dated June 27, 2011, the IBP Board of Governors
resolved to adopt and approve the Report and Recommendation of the
Investigating Commissioner, finding the same to be fully supported by the
evidence on record and the applicable laws and rules.
The respondent sought to reconsider the Resolution dated June 27, 2011,16
but the IBP Board of Governors denied his motion in its Resolution17 dated
January 3, 2013.
Issue
The issue in this case is whether the respondent should be administratively
sanctioned based on the allegations in the Complaint.
Ruling of the Court
After a careful perusal of the records, the Court agrees with the findings
and the recommendations of the Investigating Commissioner and the IBP
Board of Governors.
Section 27, Rule 138 of the Rules of Court provides that a lawyer may be
disbarred or suspended from the practice of law, inter alia, for gross
misconduct. Thus:
Sec. 27. Disbarment or 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 an attorney for a party to
a case without authority so to do. The practice of soliciting cases at law for
the purpose of gain, either personally or through paid agents or brokers,
constitutes malpractice. (Emphasis ours)
39
40
Business Concepts, Inc., the assignee of Kiyoshi, despite being the counsel
of Kiyoshi in the case against Amasula. Clearly, the respondent violated the
prohibition against representing conflicting interests.
The respondents representation of Estrelieta and Manuel against Kiyoshi,
notwithstanding that he was still the counsel of Kiyoshi and Estrelieta in the
case against Amasula, creates a suspicion of unfaithfulness or doubledealing in the performance of his duty towards his clients. Under the
circumstances, the decent and ethical thing which the respondent should
have done was to advise Estrelieta and Manuel to engage the services of
another lawyer.
The respondent should be reminded that lawyers are expected not only to
keep inviolate their clients confidence, but also to avoid the appearance of
treachery and double-dealing for only then can litigants be encouraged to
entrust their secrets to their lawyers, which is paramount in the
administration of justice.25
Further, contrary to the respondents claim, the fact that the civil case
instituted by Kiyoshi and Estrelieta against Amasula is totally unrelated to
the subsequent cases in which he represented Estrelieta and Manuel against
Kiyoshi is immaterial. The representation of opposing clients in said cases,
even if unrelated, is tantamount to representing conflicting interests or, at
the very least, invites suspicion of double-dealing which this Court cannot
allow.26
Moreover, in Anion v. Sabitsana, Jr.,27 the Court stated:
The proscription against representation of conflicting interests applies to a
situation where the opposing parties are present clients in the same action
or in an unrelated action. The prohibition also applies even if the lawyer
would not be called upon to contend for one client that which the lawyer
has to oppose for the other client, or that there would be no occasion to use
the confidential information acquired from one to the disadvantage of the
other as the two actions are wholly unrelated. To be held accountable under
this rule, it is enough that the opposing parties in one case, one of whom
would lose the suit, are present clients and the nature or conditions of the
lawyers respective retainers with each of them would affect the
performance of the duty of undivided fidelity to both clients.28 (Citation
omitted)
Likewise, the respondents claim that it was Manuel who was his client in
the case against Amasula and not Kiyoshi, since it was Manuel who sought
his services and was the one who actively and personally pursued the said
case, is untenable. It is but a futile attempt on the part of the respondent to
extricate himself from his predicament. Manuel was merely the agent of
Kiyoshi and Estrelieta in the case against Amasula. That Manuel was the
one who actively prosecuted the said case is of no consequence; the real
parties in interest in the case against Amasula were the principals of
Manuel, i.e., Kiyoshi and Estrelieta.1wphi1
The Court notes that the complainant had already manifested before the
Commission that he is no longer interested in pursuing his complaint
against the respondent. Nevertheless, the Court is not bound by such
desistance as the instant case involves public interest.29 The exercise of the
power is not for the purpose of enforcing civil remedies between parties,
41
but to protect the court and the public against an attorney guilty of
unworthy practices in his profession.30
Accordingly, as aptly found by the IBP Investigating Commissioner and the
IBP Board of Governors, an administrative sanction against the respondent
is warranted. In similar cases involving representation of conflicting
interests, the Court has sanctioned erring lawyers either by reprimand, or
by suspension from the practice of law from six (6) months to two (2)
years.31
In the case under consideration, both the Investigating Commissioner and
the IBP Board of Governors recommended that the respondent be
suspended from the practice of law for six (6) months. Considering that this
is the respondents first offense, the Court adopts the recommendation of
the Investigating Commissioner and the IBP Board of Governors and hereby
suspends the respondent from the practice of law for a period of six (6)
months effective upon receipt of this Resolution.
WHEREFORE, in view of the foregoing, the Court finds Atty. Eduardo Sedillo
GUILTY of misconduct for representing conflicting interests in violation of
Rule 15.03, Canon 15 of the Code of Professional Responsibility and is
SUSPENDED from the practice of law for a period of six (6) months,
effective upon receipt of this Resolution, with a STERN WARNING that a
commission of the same or similar offense in the future will result in the
imposition of a more severe penalty.
Let a copy of this Resolution be entered into the records of Atty. Eduardo
Sedillo and furnished to the Office of the Clerk of Court, the Office of the
Bar Confidant, the Integrated Bar of the Philippines, and all courts in the
Philippines, for their information and guidance.
Atty. Eduardo Sedillo is DIRECTED to inform the Court of the date of his
receipt of this Resolution so that the Court can determine the reckoning
point when his suspension shall take effect.
SO ORDERED.
42
43
44
45
46
A.C.
No.
9537
June
10,
2013
(Formerly CBD Case No. 09-2489)
DR.
TERESITA
LEE,
Complainant,
vs.
ATTY. AMADOR L. SIMANDO, Respondent.
DECISION
PERALTA, J.:
Before us is a Petition for Disbarment1 dated July 21, 2009 filed by Dr.
Teresita Lee (Dr. Lee) against respondent Atty. Amador L. Simando (Atty.
Simando) before the Integrated Bar of the Philippines-Commission on Bar
Discipline (IBP-CBD), docketed as CBD Case No. 09-2489, now A.C. No.
9537, for violation of the Code of Judicial Ethics of Lawyers.
The facts of the case, as culled from the records, are as follows:
Atty. Simando was the retained counsel of complainant Dr. Lee from
November 2004 until January 8, 2008, with a monthly retainer fee of Three
Thousand Pesos (Php3,000.00).2
Sometime during the above-mentioned period, Atty. Simando went to see
Dr. Lee and asked if the latter could help a certain Felicito M. Mejorado
(Mejorado) for his needed funds. He claimed that Mejorado was then
awaiting the release of his claim for informer's reward from the Bureau of
Customs. Because Dr. Lee did not know Mejorado personally and she
claimed to be not in the business of lending money, the former initially
refused to lend money. But Atty. Simando allegedly persisted and assured
her that Mejorado will pay his obligation and will issue postdated checks
and sign promissory notes. He allegedly even offered to be the co-maker of
Mejorado and assured her that Mejorado's obligation will be paid when due.
Atty. Simando was quoted saying: "Ipapahamak ba kita, kliyente kita";
"Sigurado ito, kung gusto mo, gagarantiyahan ko pa ito, at pipirma din
ako"; "Isang buwan lang, at hindi hihigit sa dalawang buwan ito, bayad ka
na."3
Due to Atty. Simando's persistence, his daily calls and frequent visits to
convince Dr. Lee, the latter gave in to her lawyer's demands, and finally
agreed to give Mejorado sizeable amounts of money. Respondent acted as
co-maker with Mejorado in various cash loans, to wit:4
Date:
Amount
47
200,000.00
Php1,400,000.00
When the said obligation became due, despite Dr. Lee's repeated demands,
Mejorado failed and refused to comply with his obligation. Since Atty.
Simando was still her lawyer then, Dr. Lee instructed him to initiate legal
action against Mejorado. Atty. Simando said he would get in touch with
Mejorado and ask him to pay his obligation without having to resort to legal
action. However, even after several months, Mejorado still failed to pay Dr.
Lee, so she again asked Atty. Simando why no payment has been made
yet. Dr. Lee then reminded Atty. Simando that he was supposed to be the
co-maker of the obligation of Mejorado, to which he replied: "Di kasuhan
din ninyo ako!"5
Despite complainant's repeated requests, respondent ignored her and failed
to bring legal actions against Mejorado. Thus, in January 2008, complainant
was forced to terminate her contract with Atty. Simando.
Subsequently, complainant's new lawyer, Atty. Gilbert Morandarte, sent a
demand letter dated June 13, 2008 to Atty. Simando in his capacity as the
co-maker of some of the loans of Mejorado.
In his Letter dated June 30, 2008, respondent denied his liability as a comaker and claimed that novation had occurred because complainant had
allegedly given additional loans to Mejorado without his knowledge.6
Dr. Lee then accused Atty. Simando of violating the trust and confidence
which she gave upon him as her lawyer, and even took advantage of their
professional relationship in order to get a loan for his client. Worse, when
the said obligation became due, respondent was unwilling to help her to
favor Mejorado. Thus, the instant petition for disbarment against Atty.
Simando.
On August 12, 2009, the IBP-CBD ordered respondent to submit his Answer
on the complaint against him.7
In his Answer8 dated September 17, 2009, Atty. Simando claimed that
complainant, who is engaged in lending money at a high interest rate, was
the one who initiated the financial transaction between her and Mejorado.
He narrated that complainant asked him if it is true that Mejorado is his
client as she found out that Mejorado has a pending claim for informer's
reward with the Bureau of Customs. When he affirmed that Mejorado is his
client, complainant signified that she is willing to give money for Mejorado's
financial needs while awaiting for the release of the informer's reward.
Eventually, parties agreed that Mejorado will pay double the amount and
that payment shall be made upon receipt by Mejorado of the payment of his
claim for informer's reward.9
Meanwhile, Atty. Simando stressed that Dr. Lee gave Mejorado a total of
Php700,000.00 as an investment but he signed as co-maker in all the
receipts showing double the amount or Php1,400,000.00.10
48
49
50
Third, Atty. Simando admitted that he was the one who introduced
complainant and Mejorado to each other for the purpose of entering into a
financial transaction while having knowledge that complainant's interests
could possibly run in conflict with Mejorado's interests which ironically such
client's interests, he is duty-bound to protect;
Fourth, despite the knowledge of the conflicting interests between his two
clients, respondent consented in the parties' agreement and even signed as
co-maker to the loan agreement;
Fifth, respondent's knowledge of the conflicting interests between his two
clients was demonstrated further by his own actions, when he:
(a) failed to act on Mejorado's failure to pay his obligation to complainant
despite the latter's instruction to do so;
(b) denied liability despite signing as co-maker in the receipts/promissory
notes arising from the loan agreement between his two clients;
(c) rebutted complainant's allegations against Mejorado and him, and even
divulged informations he acquired while he was still complainant's lawyer.
Clearly, it is improper for respondent to appear as counsel for one party
(complainant as creditor) against the adverse party (Mejorado as debtor)
who is also his client, since a lawyer is prohibited from representing
conflicting interests. He may not, without being guilty of professional
misconduct, act as counsel for a person whose interest conflict with that of
his present or former client.
Respondent's assertion that there is no conflict of interest because
complainant and respondent are his clients in unrelated cases fails to
convince. His representation of opposing clients in both cases, though
unrelated, obviously constitutes conflict of interest or, at the least, invites
suspicion of double-dealing.20 Moreover, with the subject loan agreement
entered into by the complainant and Mejorado, who are both his clients,
readily shows an apparent conflict of interest, moreso when he signed as
co-maker.
Likewise, respondent's argument that the money received was an
investment and not a loan is difficult to accept, considering that he signed
as co-maker. Respondent is a lawyer and it is objectionable that he would
sign as co-maker if he knew all along that the intention of the parties was
to engage in a mere investment. Also, as a lawyer, signing as a co-maker,
it can be presupposed that he is aware of the nature of suretyship and the
consequences of signing as co-maker. Therefore, he cannot escape liability
without exposing himself from administrative liability, if not civil liability.
Moreover, we noted that while complainant was able to show proof of
receipts of various amounts of money loaned and received by Mejorado,
and signed by the respondent as co-maker, the latter, however, other than
his bare denials, failed to show proof that the money given was an
investment and not a loan.
It must be stressed that the proscription against representation of
conflicting interests finds application where the conflicting interests arise
with respect to the same general matter however slight the adverse interest
may be. It applies even if the conflict pertains to the lawyers private
activity or in the performance of a function in a non-professional capacity.
51
52
53
54
55
56
highlight the RTCs observations and argue that the issues involved in Civil
Case No. 1721, pursuant to which the alleged contingent fee of one-half of
the subject lot was agreed by the parties, were not novel and did not
involve difficult questions of law; neither did the case require much of Atty.
Lacayas time, skill and effort in research. They point out that the two
subsequent civil cases should not be considered in determining the
reasonable contingent fee to which Atty. Lacaya should be entitled for his
services in Civil Case No. 1721,as those cases had not yet been instituted at
that time. Thus, these cases should not be considered in fixing the
attorneys fees. The petitioners also claim that the spouses Cadavedo
concluded separate agreements on the expenses and costs for each of
these subsequent cases, and that Atty. Lacaya did not even record any
attorneys lien in the spouses Cadavedos TCT covering the subject lot.
The petitioners further direct the Courts attention to the fact that Atty.
Lacaya,in taking over the case from Atty. Bandal, agreed to defray all of the
litigation expenses in exchange for one-half of the subject lot should they
win the case. They insist that this agreement is a champertous contract that
is contrary to public policy, prohibited by law for violation of the fiduciary
relationship between a lawyer and a client.
Finally, the petitioners maintain that the compromise agreement in Civil
Case No. 215 (ejectment case) did not novate their original stipulated
agreement on the attorneys fees. They reason that Civil Case No. 215 did
not decide the issue of attorneys fees between the spouses Cadavedo and
Atty. Lacaya for the latters services in Civil Case No. 1721.
The Case for the Respondents
In their defense,14 the respondents counter that the attorneys fee
stipulated in the amended complaint was not the agreed fee of Atty. Lacaya
for his legal services. They argue that the questioned stipulation for
attorneys fees was in the nature of a penalty that, if granted, would inure
to the spouses Cadavedo and not to Atty. Lacaya.
The respondents point out that: (1) both Vicente and Atty. Lacaya caused
the survey and subdivision of the subject lot immediately after the spouses
Cadavedo reacquired its possession with the RTCs approval of their motion
for execution of judgment in Civil Case No. 1721; (2) Vicente expressly
ratified and confirmed the agreement on the contingent attorneys fee
consisting of one-half of the subject lot; (3) the MTC in Civil Case No. 215
(ejectment case) approved the compromise agreement; (4) Vicente is the
legally designated administrator of the conjugal partnership, hence the
compromise agreement ratifying the transfer bound the partnership and
could not have been invalidated by the absence of Benitas acquiescence;
and (5) the compromise agreement merely inscribed and ratified the earlier
oral agreement between the spouses Cadavedo and Atty. Lacaya which is
not contrary to law, morals, good customs, public order and public policy.
While the case is pending before this Court, Atty. Lacaya died.15 He was
substituted by his wife -Rosa -and their children Victoriano D.L. Lacaya,
Jr., Rosevic Lacaya-Ocampo, Reymar L. Lacaya, Marcelito L. Lacaya,
Raymundito L. Lacaya, Laila Lacaya-Matabalan, Marivic Lacaya-Barba,
Rosalie L. Lacaya and Ma. Vic-Vic Lacaya-Camaongay.16
The Courts Ruling
57
58
59
care of his interest in the verdict to the sacrifice of that of his client in
violation of his duty of undivided fidelity to his clients cause."27
In Bautista v. Atty. Gonzales,28 the Court struck down the contingent fee
agreement between therein respondent Atty. Ramon A. Gonzales and his
client for being contrary to public policy. There, the Court held that an
reimbursement of litigation expenses paid by the former is against public
policy, especially if the lawyer has agreed to carry on the action at his
expense in consideration of some bargain to have a part of the thing in
dispute. It violates the fiduciary relationship between the lawyer and his
client.29
In addition to its champertous character, the contingent fee arrangement in
this case expressly transgresses the Canons of Professional Ethics and,
impliedly, the Code of Professional Responsibility.30 Under Rule 42 of the
Canons of Professional Ethics, a lawyer may not properly agree with a client
that the lawyer shall pay or beat the expense of litigation.31 The same
reasons discussed above underlie this rule.
C.
The
attorneys
fee
consisting
of
one-half
of
the
subject
lot
is
excessive
and unconscionable
We likewise strike down the questioned attorneys fee and declare it void
for being excessive and unconscionable.1wphi1 The contingent fee of onehalf of the subject lot was allegedly agreed to secure the services of Atty.
Lacaya in Civil Case No. 1721.Plainly, it was intended for only one action as
the two other civil cases had not yet been instituted at that time. While Civil
Case No. 1721 took twelve years to be finally resolved, that period of time,
as matters then stood, was not a sufficient reason to justify a large fee in
the absence of any showing that special skills and additional work had been
involved. The issue involved in that case, as observed by the RTC(and with
which we agree), was simple and did not require of Atty. Lacaya extensive
skill, effort and research. The issue simply dealt with the prohibition against
the sale of a homestead lot within five years from its acquisition.
That Atty. Lacaya also served as the spouses Cadavedos counsel in the two
subsequent cases did not and could not otherwise justify an attorneys fee
of one-half of the subject lot. As assertedby the petitioners, the spouses
Cadavedo and Atty. Lacaya made separate arrangements for the costs and
expenses foreach of these two cases. Thus, the expenses for the two
subsequent cases had been considered and taken cared of Based on these
considerations, we therefore find one-half of the subject lot as attorneys
fee excessive and unreasonable.
D.
Atty.
Lacayas
acquisition
of
the
one-half
portion
contravenes
Article 1491 (5) of the Civil Code
Article 1491 (5) of the Civil Code forbids lawyers from acquiring, by
purchase or assignment, the property that has been the subject of litigation
in which they have taken part by virtue of their profession.32 The same
proscription is provided under Rule 10 of the Canons of Professional
Ethics.33
A thing is in litigation if there is a contest or litigation over it in court or
when it is subject of the judicial action.34 Following this definition, we find
60
that the subject lot was still in litigation when Atty. Lacaya acquired the
disputed one-half portion. We note in this regard the following established
facts:(1)on September 21, 1981, Atty. Lacaya filed a motion for the
issuance of a writ of execution in Civil Case No. 1721; (2) on September
23, 1981, the spouses Ames filed Civil Case No. 3352 against the spouses
Cadavedo; (3)on October 16, 1981, the RTC granted the motion filed for
the issuance of a writ of execution in Civil Case No. 1721 and the spouses
Cadavedo took possession of the subject lot on October 24, 1981; (4) soon
after, the subject lot was surveyed and subdivided into two equal portions,
and Atty. Lacaya took possession of one of the subdivided portions; and (5)
on May 13, 1982, Vicente and Atty. Lacaya executed the compromise
agreement.
From these timelines, whether by virtue of the alleged oral contingent fee
agreement or an agreement subsequently entered into, Atty. Lacaya
acquired the disputed one-half portion (which was after October 24, 1981)
while Civil Case No. 3352 and the motion for the issuance of a writ of
execution in Civil Case No. 1721were already pending before the lower
courts. Similarly, the compromise agreement, including the subsequent
judicial approval, was effected during the pendency of Civil Case No. 3352.
In all of these, the relationship of a lawyer and a client still existed between
Atty. Lacaya and the spouses Cadavedo.
Thus, whether we consider these transactions the transfer of the disputed
one-half portion and the compromise agreement independently of each
other or resulting from one another, we find them to be prohibited and
void35 by reason of public policy.36 Under Article 1409 of the Civil Code,
contracts which are contrary to public policy and those expressly prohibited
or declared void by law are considered in existent and void from the
beginning.37
What did not escape this Courts attention is the CAs failure to note that
the transfer violated the provisions of Article 1491(5) of the Civil Code,
although it recognized the concurrence of the transfer and the execution of
the compromise agreement with the pendency of the two civil cases
subsequent to Civil Case No. 1721.38 In reversing the RTC ruling, the CA
gave weight to the compromise agreement and in so doing, found
justification in the unproved oral contingent fee agreement.
While contingent fee agreements are indeed recognized in this jurisdiction
as a valid exception to the prohibitions under Article 1491(5) of the Civil
Code,39 contrary to the CAs position, however, this recognition does not
apply to the present case. A contingent fee contract is an agreement in
writing where the fee, often a fixed percentage of what may be recovered in
the action, is made to depend upon the success of the litigation.40 The
payment of the contingent fee is not made during the pendency of the
litigation involving the clients property but only after the judgment has
been rendered in the case handled by the lawyer.41
In the present case, we reiterate that the transfer or assignment of the
disputed one-half portion to Atty. Lacaya took place while the subject lot
was still under litigation and the lawyer-client relationship still existed
between him and the spouses Cadavedo. Thus, the general prohibition
provided under Article 1491 of the Civil Code, rather than the exception
61
62
63
64
65
66
67
x x x support the Constitution and obey the laws as well as the legal orders
of the duly constituted authorities therein; xxx do no falsehood, nor consent
to the doing of any in court; x x x not wittingly or willingly promote or sue
on groundless, false or unlawful suit, nor give aid nor consent to the same;
x x x delay no man for money or malice, and x x x conduct themselves as
lawyers according to the best of their knowledge and discretion with all
good fidelity as well to the courts as to their clients x x x.
No lawyer should ever lose sight of the verity that the practice of the legal
profession is always a privilege that the Court extends only to the
deserving, and that the Court may withdraw or deny the privilege to him
who fails to observe and respect the Lawyers Oath and the canons of
ethical conduct in his professional and private capacities. He may be
disbarred or suspended from the practice of law not only for acts and
omissions of malpractice and for dishonesty in his professional dealings, but
also for gross misconduct not directly connected with his professional duties
that reveal his unfitness for the office and his unworthiness of the principles
that the privilege to practice law confers upon him.27 Verily, no lawyer is
immune from the disciplinary authority of the Court whose duty and
obligation are to investigate and punish lawyer misconduct committed
either in a professional or private capacity.28 The test is whether the
conduct shows the lawyer to be wanting in moral character, honesty,
probity, and good demeanor, and whether the conduct renders the lawyer
unworthy to continue as an officer of the Court.29 WHEREFORE, the Court
FINDS AND PRONOUNCES ASST. PROVINCIAL PROSECUTOR SALVADOR N.
PE, JR. guilty of violating Rule 1.01 of Canon 1, and Rule 7.03 of Canon 7 of
the Code of Professional Responsibility, and DISBARS him effective upon
receipt of this decision.
The Court DIRECTS the Bar Confidant to remove the name of ASST.
PROVINCIAL PROSECUTOR SALVADOR N. PE, JR. from the Roll of Attorneys.
This decision is without prejudice to any pending or contemplated
proceedings to be initiated against ASST. PROVINCIAL PROSECUTOR
SALVADOR N. PE, JR.
Let copies of this decision be furnished to the Office of the Bar Confidant
the Office of the Court Administrator for dissemination to all courts of the
country and to the Integrated Bar of the Philippines.
SO ORDERED.
68
In their Complaint filed directly before the Office of the Bar Confidant of this
Court, complainants alleged that they secured the services of respondent in
the filing of a Complaint for damages captioned as Aurora M Del RioWarriner and her spouse-husband George Arthur Warriner, plaintiffs, versus
E.B. Villarosa & Partner Co. Ltd. and docketed as Civil Case No. 23,396-95
before the Regional Trial Court (RTC) of Davao City, Branch 16; that during
the proceedings in Civil Case No. 23,396-95, respondent requested the RTC
for a period of 10 days within which to submit his Formal Offer of
Documentary Evidence; that despite the lapse of the requested period,
respondent did not submit his Formal Offer of Documentary Evidence; that
respondent did not file any comment to E.B. Villarosa & Partner Co., Ltd. s
motion to declare complainants to have waived their right to file Formal
Offer of Documentary Evidence; that respondent belatedly filed a Formal
Offer of Documentary Evidence which the RTC denied; that respondent did
not oppose or file any comment to E.B. Villarosa & Partner Co., Ltd.s move
to dismiss the Complaint; and that the RTC eventually dismissed Civil Case
No. 23,396-95 to the prejudice of herein complainants. In a Resolution2
dated June 26, 2000, we directed respondent to file his Comment to this
administrative Complaint. Upon receipt of the Resolution on August 24,
2000,3 respondent requested for an extension of 30 days which was
granted.4
However, as of August 5, 2002, or after a lapse of almost two years,
respondent had not yet filed his Comment. Thus, we resolved to require
respondent to "show cause why he should not be disciplinarily dealt with or
held in contempt for such failure and to comply with the resolution requiring
said comment, both within ten (10) days from notice."5 Respondent
received our directive but chose to ignore the same.6 In another
Resolution7 dated August 4, 2003, we imposed a fine of P1,000.00 on
respondent and reiterated our directives requiring him to file his Comment
and to submit an explanation on his failure to file the same. However,
respondent again ignored this Courts directive. Thus, on February 15,
2006, we increased the fine to P2,000.00 but respondent continued to
ignore our Resolutions.8 Consequently, on March 10, 2008, we resolved to
order respondents arrest and detention until he complies with our
Resolutions.9
This time, respondent heeded our directives by submitting his
Compliance10 and Comment.11 Respondent claimed that he failed to file
his Comment to the instant administrative case because he lost the records
of Civil Case No. 23,396-95 and that he tried to get a copy from the RTC to
no avail.
In his Comment belatedly filed eight years after the prescribed period,
respondent averred that complainant Warriner is an Australian national who
married his Filipino spouse as a convenient scheme to stay in the country;
that he rendered his services in Civil Case No. 23,396-95 free of charge;
that he accepted the case because he was challenged by Warriners
criticism of the Philippine judicial system; that he doubted the veracity of
Warriners claim that the construction being undertaken by E.B. Villarosa &
Partner Co., Ltd. indeed caused the erosion of the soil towards his property;
that Warriner was his only witness during the trial; that the reluctance of
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before this Court that it was Warriner who caused the soil erosion by
destroying the ditches constructed by the developer. Moreover, he alleged
that the estimate of damages provided by Benings Garden which he offered
as an exhibit in Civil Case No. 23,396-95 was a fabrication as there is no
such entity in Laurel St., Davao City.
In their Supplemental Position Paper,15 complainants argued, among
others, that since more than eight years have lapsed, it is possible that
Benings Garden relocated to another address but it does not mean that it
never existed.
In his Report and Recommendation,16 the Investigating Commissioner17
found respondent guilty of mishandling Civil Case No. 23,396-95 in violation
of the Code of Professional Responsibility and thus recommended
respondents suspension from the practice of law for a period of six months.
The IBP Board of Governors, in Resolution No. XIX-2010-44218 dated
August 28, 2010, approved with modification the findings and
recommendation of the Investigating Commissioner. The IBP Board of
Governors noted that aside from mishandling the case of complainants,
respondent also showed his propensity to defy the orders of the court, thus
it recommended respondent's suspension from the practice of law for one
year.
Respondent moved for reconsideration insisting that the IBPs Resolution is
not supported by facts. He maintained that his actuations did not amount to
a violation of the Code of Professional Responsibility; and that the filing of
the Formal Offer of Documentary Evidence, although belated, exculpated
him from any liability. He asserted that the exhibits were fabricated thus he
deliberately belatedly filed the Formal Offer of Documentary Evidence in the
hope that the same would be refused admission by the RTC. He denied
defying lawful orders of the RTC or this Court. He insisted that defiance of
lawful orders connotes total, complete or absolute refusal and not mere
belated filing. He argued that he did not oppose or file comment to the
Motion to Dismiss as he deemed the same proper considering the fabricated
allegations of his clients. Respondent argued that the penalty recommended
by the IBP is not commensurate to his infractions. He alleged that the
records of this case would show that he did not utterly disregard the orders
or processes of the Court or the IBP. He claimed that this Court should have
deemed his failure to timely file a Comment as a waiver on his part to file
the same, and not as defiance of this Courts orders. Besides, he insisted
that the only issue to be resolved by the IBP was the alleged mishandling of
Civil Case No. 23,396-95; the IBP should not have delved on whether he
disregarded or was disrespectful of the Courts orders because he was not
given any opportunity to rebut the same.
Finally, respondent posited that his penalty is oppressive, excessive and
disproportionate. He argued that with his suspension, the other cases he is
handling would be affected.
Complainants also filed their Motion for Reconsideration insisting that
respondent should be disbarred or suspended for five years from the
practice of law. To this, respondent filed his Comment asserting that the
Investigating Commissioner erred and was inaccurate when he stated in his
Report and Recommendation that respondent had a heated argument with
71
the complainants. He averred that after the filing of the Formal Offer of
Documentary Evidence and until the dismissal of Civil Case No. 23,396-95,
he had no occasion to meet the complainants. He maintained that he had
nothing to be remorseful about and that there is absolutely no evidence
that would justify his suspension. He maintained that "being basic and
elementary in any legal procedure, a failure or refusal to submit comment is
but a waiver to so comment and puts the controversy submitted for
resolution based on the evidence available at hand x x x. It is unfortunate
that the Supreme Court did not consider respondents failure or omission as
having such effects, but such failure cannot be considered as a
contemptuous act x x x."
The IBP Board of Governors, however, was not persuaded hence it denied
respondents Motion for Reconsideration.
On May 6, 2013, respondent filed before this Court An Ex Parte
Manifestation (Not a Motion for Reconsideration)19 insisting that his failure
to timely file comment on the administrative case does not constitute
defiance of the Courts directives but is only "a natural human expression of
frustration, distraught and disappointment" when this Court and the IBP
entertained a clearly unmeritorious Complaint. In any case, he averred that
on April 12, 2013, the IBP Davao City Chapter presented him with a
Certificate of Appreciation for his invaluable support to the local chapter. He
claims that
x x x Even a feeble minded average person will find it ridiculously hilarious
and comical that the [IBP] National Office condemns undersigned for his
acts allegedly inimical to the profession but will be praised to the heavens,
so to speak, by the local chapter of the same organization for his invaluable
support to that same organization whose object, among others, is to
discipline its members to be respectful and [subservient] to the rule of law
by serving justice in an orderly and dignified manner. Weight and credence
must be accorded the recognition and appreciation by this local chapter
being logically considered as having the first hand observation and, thus,
the personal knowledge of undersigneds personal character, integrity,
uprightness, reputation and sacrifices in the practice of his legal profession.
As a gesture of meek obedience, respondent will not pray for the
reconsideration and setting aside of that resolution adopted by the
Honorable Board of Governors suspending him from the practice of law for
one (1) year, erroneous, disproportionate and harsh as it may be.
Undersigned only prays that, by way of protecting the prestigious image of
the [IBP], measures be adopted to prevent it from becoming a laughing
stock of professional organizations in the Philippines worthy for the books of
wonders by its inconsistent, ridiculous and contradictory stance of
disciplining its members exemplified by the predicament of respondent in
this instant proceeding on the one hand but on the other hand is extolled by
its local chapter to high heavens for his "invaluable support" of the tenets
and foundation of that very same organization that condemns him. THIS IS
HILARIOUSLY COMICAL AND ABSURDLY ODD.
Our Ruling
Respondent is indeed guilty of mishandling Civil Case No. 23,396-95.
Records show that the 10-day period given to respondent to submit his
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only witness in Civil Case No. 23,396-95. However, in his Position Paper
filed before the IBP, he admitted that aside from Warriner, he also
presented as witnesses a former barangay official and a representative from
DENR. Next, he claimed in his Comment filed before this Court that he had
a heated argument with Warriner during which the latter threatened him
with a disbarment suit. The Investigating Commissioner took this into
account when he submitted his Report and Recommendation. Surprisingly,
respondent claimed in his Comment to complainant's Motion for
Reconsideration before the IBP that the Investigating Commissioner erred
and was inaccurate when he stated in his Report and Recommendation that
respondent had a heated argument with the complainants. Moreover,
respondent claimed in his Comment before this Court that Warriner
authored the damage to his property by draining the soil erosion prevention
ditches provided by E.B. Villarosa & Partner Co., Ltd. However, he again
contradicted himself when he claimed in his Position Paper that the natural
topography of the place was the cause of the erosion. At this juncture,
respondent must be reminded that as a lawyer and an officer of the Court,
he "owes candor, fairness and good faith to the court."23 He "shall not do
any falsehood, nor consent to the doing of any in court; nor shall he
mislead, or allow the Court to be misled by any artifice."24
Under the circumstances, and considering that we had already admonished
respondent and had him arrested for his adamant refusal to obey our
directives, we find the penalty of suspension from the practice of law for six
months, as recommended by the Investigating Commissioner, and as we
similarly imposed in Hernandez v. Padilla25 and Pesto v. Millo,26
commensurate to respondents infractions. Besides, we wish to emphasize
that "suspension is not primarily intended as a punishment but a means to
protect the public and the legal profession."27
IN VIEW WHEREOF, Atty. Reni M. Dublin is SUSPENDED from the practice of
law for six months effective upon receipt of this Resolution with a WARNING
that a similar violation will be dealt with more severely. He is DIRECTED to
report to this Court the date of his receipt of this Resolution to enable this
Court to determine when his suspension shall take effect.
Let a copy of this Resolution be entered in the personal records of
respondent as a member of the Bar and copies furnished the Office of the
Bar Confidant the Integrated Bar of the Philippines and the Office of the
Court Administrator for circulation to all courts in the country.
SO ORDERED.
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Complainant claims not hearing from respondent again despite his several
letters conveying his disappointment and requesting for the return of the
money and the documents in respondents possession. Complainant then
sought the assistance of the radio program "Ito ang Batas with Atty. Aga"
to solve his predicament. Following the advice he gathered, complainant
went to the Office of the Clerk of Court of the Caloocan City Metropolitan
Trial Court and Regional Trial Court (RTC). Complainant learned that a civil
case for Specific Performance and Damages was filed on June 6, 20023 but
was dismissed on June 13, 2002. He also found out that the filing fee was
only P2,440 and not P10,000 as earlier stated by respondent. Atty. Aga of
the same radio program also sent respondent a letter calling his attention
to complainants problem. The letter, like all of complainants previous
letters, was unheeded.
On January 9, 2006, complainant filed before the Integrated Bar of the
Philippines-Commission on Bar Discipline (IBP-CBD) the instant
administrative case praying that respondent be found guilty of gross
misconduct for violating the Lawyers Oath and the Code of Professional
Responsibility, and for appropriate administrative sanctions to be imposed.
Respondent harps a different tale.
In an Answer4 filed on January 30, 2006, respondent prayed that the case
be dismissed for lack of merit. He denied charging complainant P10,000 as
filing fees for the estafa case and claimed that he charged and received only
P2,000. He also countered that the payment of P30,000 made by the
complainant was his acceptance fee for both the estafa case and civil case.
Respondent likewise denied the following other allegations of complainant:
that he assured the success of the case before the prosecutor; that he
asked complainant to give a bottle of Carlos Primero I to the prosecutor;
that he promised to fix the case; and that he charged P10,000, as he only
charged P5,000, as filing fee for the civil case.
Respondent explained that it was not a matter of indifference on his part
when he failed to inform petitioner of the status of the case. In fact, he was
willing to return the money and the documents of complainant. What
allegedly prevented him from communicating with complainant was the fact
that complainant would go to his office during days and times that he would
be attending his daily court hearings.
The IBP-CBD called for a mandatory conference on April 28, 2006. Only
complainant and his counsel attended.5 The conference was reset and
terminated on June 9, 2006. The parties were directed to file their verified
position papers within 15 days,6 to which complainant and respondent
complied.7
On July 18, 2006, respondent filed a Reply8 praying for the dismissal of the
case for lack of factual and legal bases. He stated that he had performed his
duties as complainants counsel when he filed the criminal case before the
Office of the City Prosecutor of Quezon City and the civil case before the
RTC of Caloocan City. He averred that he should not be blamed for the
dismissal of both cases as his job was to ensure that justice is served and
not to win the case. It was unethical for him to guarantee the success of
the case and resort to unethical means to win such case for the client. He
continued to deny that he asked complainant to give the prosecutor a bottle
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of Carlos Primero I and that the filing fees he collected totalled P20,000.
Respondent argued that it is incredulous that the total sum of all the fees
that he had allegedly collected exceeded P30,000 the amount being
claimed by complainant from the spouses.
In its Report and Recommendation9 dated September 12, 2008, the IBPCBD recommended the suspension of respondent from the practice of law
for six months "for negligence within the meaning of Canon 18 and
transgression of Rule 18.04 of the Code of Professional Responsibility," viz:
In the case under consideration, there are certain matters which keep
sticking out like a sore thumb rendering them difficult to escape notice.
One is the filing of a criminal complaint for estafa arising out of a violation
of the contract for repair of the Volks Wagon (sic) car. It is basic that when
an act or omission emanates from a contract, oral or written, the
consequent result is a breach of the contract, hence, properly actionable in
a civil suit for damages. As correctly pointed out by the Investigating
Prosecutor, the liability of the respondent is purely civil in nature because
the complaint arose from a contract of services and the respondent
(spouses Garin) failed to perform their contractual obligation under the
contract.
xxxx
Another one is the filing of a civil complaint for specific performance and
damages (after the dismissal of the criminal complaint for estafa) in the
Regional Trial Court of Caloocan City where the actual damages claimed is
P36,000.00.
It is also basic that the civil complaint for P36,000.00 should have been
filed with the MTC [which] has jurisdiction over the same. One of the "firsts"
that a lawyer ascertains in filing an action is the proper forum or court with
whom the suit or action shall be filed. In June 2002 when the civil complaint
was filed in court, the jurisdiction of the MTC has already expanded such
that the jurisdictional amount of the RTC is already P400,000.00.
xxxx
Another thing is the various follow-ups made by respondents client as
evidenced by the letters marked as Exhibits "D", "E", "F", "G" and "H" which
were all received by complainants secretary, except for Exhibit "H" which
was received by Atty. Asong, not to mention Exhibit "M" which was sent by
"Atty. Aga". These efforts of the complainant were not reciprocated by the
respondent with good faith. Respondent chose to ignore them and reasoned
out that he is willing to meet with the complainant and return the money
and documents received by reason of the legal engagement, but omitted to
communicate with him for the purpose of fixing the time and place for the
meeting. This failure suggests a clear disregard of the clients demand
which was done in bad faith on the part of respondent.10
On December 11, 2008, the IBP Board of Governors issued Resolution No.
XVIII-2008-646, adopting and approving the recommendation of the IBPCBD. The Resolution11 reads:
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
77
by the evidence on record and the applicable laws and rules, and
considering Respondents violation of Canon 18 and Rule 18.04 of the Code
of Professional Responsibility for his negligence, Atty. Quintin P. Alcid, Jr. is
hereby SUSPENDED from the practice of law for six (6) months.
On April 24, 2009, respondent sought reconsideration12 and asked that the
penalty of suspension be reduced to warning or reprimand. After three
days, or on April 27, 2009, respondent filed a "Motion to Admit Amended
Motion for Reconsideration Upon Leave of Office."13 Respondent asserted
that the failure to inform complainant of the status of the cases should not
be attributed to him alone. He stressed that complainant had always been
informed that he only had time to meet with his clients in the afternoon at
his office in Quezon City. Despite such notice, complainant kept going to his
office in Tandang Sora. He admitted that though he committed lapses which
would amount to negligence in violation of Canon 18 and Rule 18.04, they
were done unknowingly and without malice or bad faith. He also stressed
that this was his first infraction.
In its Resolution No. XIX-2011-473 dated June 26, 2011, the IBP Board of
Governors denied respondents Motion for Reconsideration for lack of
merit.14 On August 15, 2011, respondent filed a second Motion for
Reconsideration15 which was no longer acted upon due to the transmittal of
the records of the case to this Court by the IBP on August 16, 2011.16
On September 14, 2011, the Court issued a Resolution17 and noted the
aforementioned Notices of Resolution dated December 11, 2008 and June
26, 2011. On December 14, 2011, it issued another Resolution18 noting the
Indorsement dated August 16, 2011 of Director Alicia A. Risos-Vidal and
respondents second Motion for Reconsideration dated August 15, 2011.
We sustain the findings of the IBP that respondent committed professional
negligence under Canon 18 and Rule 18.04 of the Code of Professional
Responsibility, with a modification that we also find respondent guilty of
violating Canon 17 and Rule 18.03 of the Code and the Lawyers Oath.
A lawyer may be disbarred or suspended for any violation of his oath, a
patent disregard of his duties, or an odious deportment unbecoming an
attorney. A lawyer must at no time be wanting in probity and moral fiber
which are not only conditions precedent to his entrance to the Bar but are
likewise essential demands for his continued membership therein.19
The Complaint before the IBP-CBD charged respondent with violation of his
oath and the following provisions under the Code of Professional
Responsibility:
a)
Canon 15 A lawyer shall observe candor, fairness and loyalty in all his
dealings and transactions with his client;
b)
Rule 15.[06, Canon 15 A lawyer shall not state or imply that he is able to
influence any public official, tribunal or legislative body;
c)
Rule 16.01[, Canon 16 A lawyer shall account for all money or property
collected or received for or from his client;
d)
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Canon 17 A lawyer owes fidelity to the cause of his client and he shall be
mindful of the trust and confidence reposed in him;
e)
Canon 18 A lawyer shall serve his client with competence and diligence;
f)
Rule 18.03[, Canon 18 A lawyer shall not neglect a legal matter entrusted
to him and his negligence in connection therewith shall render him liable;
and
g)
Rule 18.04[, Canon 18 A lawyer shall keep his client informed of the
status of his case and shall respond within a reasonable time to the clients
request for information.20
A review of the proceedings and the evidence in the case at bar shows that
respondent violated Canon 18 and Rules 18.03 and 18.04 of the Code of
Professional Responsibility. Complainant correctly alleged that respondent
violated his oath under Canon 18 to "serve his client with competence and
diligence" when respondent filed a criminal case for estafa when the facts of
the case would have warranted the filing of a civil case for breach of
contract. To be sure, after the complaint for estafa was dismissed,
respondent committed another similar blunder by filing a civil case for
specific performance and damages before the RTC. The complaint, having
an alternative prayer for the payment of damages, should have been filed
with the Municipal Trial Court which has jurisdiction over complainants
claim which amounts to only P36,000. As correctly stated in the Report and
Recommendation of the IBP-CBD:
Batas Pambansa Blg. 129[,] as amended by R.A. No. 7691 which took effect
on April 15, 1994[,] vests in the MTCs of Metro Manila exclusive original
jurisdiction of civil cases where the amount of demand does not exceed
P200,000.00 exclusive of interest, damages of whatever kind, attorneys
fees, litigation expenses and costs (Sec. 33), and after five (5) years from
the effectivity of the Act, the same shall be adjusted to P400,000.00 (Sec.
34).21
The errors committed by respondent with respect to the nature of the
remedy adopted in the criminal complaint and the forum selected in the civil
complaint were so basic and could have been easily averted had he been
more diligent and circumspect in his role as counsel for complainant. What
aggravates respondents offense is the fact that his previous mistake in
filing the estafa case did not motivate him to be more conscientious,
diligent and vigilant in handling the case of complainant. The civil case he
subsequently filed for complainant was dismissed due to what later turned
out to be a basic jurisdictional error.
That is not all. After the criminal and civil cases were dismissed, respondent
was plainly negligent and did not apprise complainant of the status and
progress of both cases he filed for the latter. He paid no attention and
showed no importance to complainants cause despite repeated follow-ups.
Clearly, respondent is not only guilty of incompetence in handling the cases.
His lack of professionalism in dealing with complainant is also gross and
inexcusable. In what may seem to be a helpless attempt to solve his
predicament, complainant even had to resort to consulting a program in a
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radio station to recover his money from respondent, or at the very least,
get his attention.
Respondents negligence under Rules 18.03 and 18.04 is also beyond
contention. A client pays his lawyer hard-earned money as professional
fees. In return, "[e]very case a lawyer accepts deserves his full attention,
skill and competence, regardless of its importance and whether he accepts
it for a fee or for free. Rule 18.03 of the Code of Professional Responsibility
enjoins a lawyer not to neglect a legal matter entrusted to him, and his
negligence in connection therewith shall render him liable. He must
constantly keep in mind that his actions or omissions or nonfeasance would
be binding upon his client. He is expected to be acquainted with the
rudiments of law and legal procedure, and a client who deals with him has
the right to expect not just a good amount of professional learning and
competence but also a whole-hearted fealty to the clients cause."22
Similarly, under Rule 18.04, a lawyer has the duty to apprise his client of
the status and developments of the case and all other information relevant
thereto. He must be consistently mindful of his obligation to respond
promptly should there be queries or requests for information from the
client.
In the case at bar, respondent explained that he failed to update
complainant of the status of the cases he filed because their time did not
always coincide. The excuse proffered by respondent is too lame and flimsy
to be given credit. Respondent himself admitted that he had notice that
complainant had visited his office many times. Yet, despite the efforts
exerted and the vigilance exhibited by complainant, respondent neglected
and failed to fulfill his obligation under Rules 18.03 and 18.04 to keep his
client informed of the status of his case and to respond within a reasonable
time to the clients request for information.
Finally, respondent also violated Canon 17 of the Code which states that
"[a] lawyer owes fidelity to the cause of his client and he shall be mindful of
the trust and confidence reposed in him." The legal profession dictates that
it is not a mere duty, but an obligation, of a lawyer to accord the highest
degree of fidelity, zeal and fervor in the protection of the clients interest.
The most thorough groundwork and study must be undertaken in order to
safeguard the interest of the client. The honor bestowed on his person to
carry the title of a lawyer does not end upon taking the Lawyers Oath and
signing the Roll of Attorneys. Rather, such honor attaches to him for the
entire duration of his practice of law and carries with it the consequent
responsibility of not only satisfying the basic requirements but also going
the extra mile in the protection of the interests of the client and the pursuit
of justice. Respondent has defied and failed to perform such duty and his
omission is tantamount to a desecration of the Lawyers Oath.
All said, in administrative cases for disbarment or suspension against
lawyers, it is the complainant who has the burden to prove by
preponderance of evidence23 the allegations in the complaint. In the instant
case, complainant was only able to prove respondents violation of Canons
17 and 18, and Rules 18.03 and 18.04 of the Code of Professional
Responsibility, and the Lawyers Oath. Complainant failed to substantiate
his claim that respondent violated Canon 15 and Rule 15.06 of the Code of
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had not remitted the full payment of the filing fee, he should have found a
way to speak to his client and inform him about the insufficiency of the
filing fee so he could file the complaint. Atty. Agleron obviously lacked
professionalism in dealing with complainant and showed incompetence
when he failed to file the appropriate charges.1wphi1
In a number of cases,8 the Court held that a lawyer should never neglect a
legal matter entrusted to him, otherwise his negligence renders him liable
for disciplinary action such as suspension ranging from three months to two
years. In this case, the Court finds the suspension of Atty. Agleron from the
practice of law for a period of three (3) months sufficient.
WHEREFORE, the resolution of the IBP Board of Governors is hereby
AFFIRMED with MODIFICATION. Accordingly, respondent ATTY. ARNULFO
M. AGLERON, SR. is hereby SUSPENDED from the practice of law for a
period of THREE (3) MONTHS, with a stern warning that a repetition of the
same or similar wrongdoing will be dealt with more severely.
Let a copy of this resolution be furnished the Bar Confidant to be included in
the records of the respondent; the Integrated Bar of the Philippines for
distribution to all its chapters; and the Office of the Court Administrator for
dissemination to all courts throughout the country.
SO ORDERED.
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with the inscription "LEVI STRAUSS & CO;" (3) the arcuate design that
refers to "the two parallel stitching curving downward that are being sewn
on both back pockets of a Levis Jeans;" and (4) the tab or piece of cloth
located on the structural seam of the right back pocket, upper left side. All
these trademarks were registered in the Philippine Patent Office in the
1970s, 1980s and early part of 1990s.7
Levi Strauss Philippines, Inc. (Levis Philippines) is a licensee of Levis. After
receiving information that Diaz was selling counterfeit LEVIS 501 jeans in
his tailoring shops in Almanza and Talon, Las Pias City, Levis Philippines
hired a private investigation group to verify the information. Surveillance
and the purchase of jeans from the tailoring shops of Diaz established that
the jeans bought from the tailoring shops of Diaz were counterfeit or
imitations of LEVIS 501. Levis Philippines then sought the assistance of the
National Bureau of Investigation (NBI) for purposes of applying for a search
warrant against Diaz to be served at his tailoring shops. The search
warrants were issued in due course. Armed with the search warrants, NBI
agents searched the tailoring shops of Diaz and seized several fake LEVIS
501 jeans from them. Levis Philippines claimed that it did not authorize the
making and selling of the seized jeans; that each of the jeans were mere
imitations of genuine LEVIS 501 jeans by each of them bearing the
registered trademarks, like the arcuate design, the tab, and the leather
patch; and that the seized jeans could be mistaken for original LEVIS 501
jeans due to the placement of the arcuate, tab, and two-horse leather
patch.8
2.
Evidence of the Defense
On his part, Diaz admitted being the owner of the shops searched, but he
denied any criminal liability.
Diaz stated that he did not manufacture Levis jeans, and that he used the
label "LS Jeans Tailoring" in the jeans that he made and sold; that the label
"LS Jeans Tailoring" was registered with the Intellectual Property Office;
that his shops received clothes for sewing or repair; that his shops offered
made-to-order jeans, whose styles or designs were done in accordance with
instructions of the customers; that since the time his shops began operating
in 1992, he had received no notice or warning regarding his operations;
that the jeans he produced were easily recognizable because the label "LS
Jeans Tailoring," and the names of the customers were placed inside the
pockets, and each of the jeans had an "LSJT" red tab; that "LS" stood for
"Latest Style;" and that the leather patch on his jeans had two buffaloes,
not two horses.9
Ruling of the RTC
On February 13, 2006, the RTC rendered its decision finding Diaz guilty as
charged, disposing thus:
WHEREFORE, premises considered, the Court finds accused Victorio P. Diaz,
a.k.a. Vic Diaz, GUILTY beyond reasonable doubt of twice violating Sec.
155, in relation to Sec. 170, of RA No. 8293, as alleged in the Informations
in Criminal Case Nos. 00-0318 & 00-0319, respectively, and hereby
sentences him to suffer in each of the cases the penalty of imprisonment of
TWO (2) YEARS of prision correcional, as minimum, up to FIVE (5) YEARS
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April 10, 2007, the last day of the 30-day extension, the counsel filed
another motion, seeking an additional 15 days. The CA allowed the counsel
until April 25, 2007 to serve and file the appellants brief. On April 25,
2007, the counsel went a third time to the CA with another request for 15
days. The CA still granted such third motion for extension, giving the
counsel until May 10, 2007. Notwithstanding the liberality of the CA, the
counsel did not literally comply, filing the appellants brief only on May 28,
2007, which was the 18th day beyond the third extension period granted.
Under the circumstances, the failure to file the appellants brief on time
rightly deserved the outright rejection of the appeal. The acts of his counsel
bound Diaz like any other client. It was, of course, only the counsel who
was well aware that the Rules of Court fixed the periods to file pleadings
and equally significant papers like the appellants brief with the lofty
objective of avoiding delays in the administration of justice.
Yet, we have before us an appeal in two criminal cases in which the
appellant lost his chance to be heard by the CA on appeal because of the
failure of his counsel to serve and file the appellants brief on time despite
the grant of several extensions the counsel requested. Diaz was convicted
and sentenced to suffer two indeterminate sentences that would require
him to spend time in detention for each conviction lasting two years, as
minimum, to five years, as maximum, and to pay fines totaling
P100,000.00 (with subsidiary imprisonment in case of his insolvency). His
personal liberty is now no less at stake. This reality impels us to look
beyond the technicality and delve into the merits of the case to see for
ourselves if the appeal, had it not been dismissed, would have been worth
the time of the CA to pass upon. After all, his appellants brief had been
meanwhile submitted to the CA. While delving into the merits of the case,
we have uncovered a weakness in the evidence of guilt that cannot be
simply ignored and glossed over if we were to be true to our oaths to do
justice to everyone.
We feel that despite the CA being probably right in dismissing the excuses
of oversight and excusable negligence tendered by Diazs counsel to justify
the belated filing of the appellants brief as unworthy of serious
consideration, Diaz should not be made to suffer the dire consequence. Any
accused in his shoes, with his personal liberty as well as his personal
fortune at stake, expectedly but innocently put his fullest trust in his
counsels abilities and professionalism in the handling of his appeal. He
thereby delivered his fate to the hands of his counsel. Whether or not those
hands were efficient or trained enough for the job of handling the appeal
was a learning that he would get only in the end. Likelier than not, he was
probably even unaware of the three times that his counsel had requested
the CA for extensions. If he were now to be left to his unwanted fate, he
would surely suffer despite his innocence. How costly a learning it would be
for him! That is where the Court comes in. It is most important for us as
dispensers of justice not to allow the inadvertence or incompetence of any
counsel to result in the outright deprivation of an appellants right to life,
liberty or property.13
We do not mind if this softening of judicial attitudes be mislabeled as
excessive leniency. With so much on the line, the people whose futures
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5. The use or application of the infringing mark is without the consent of the
trademark owner or the assignee thereof.14
As can be seen, the likelihood of confusion is the gravamen of the offense
of trademark infringement.15 There are two tests to determine likelihood of
confusion, namely: the dominancy test, and the holistic test. The
contrasting concept of these tests was explained in Societes Des Produits
Nestle, S.A. v. Dy, Jr., thus:
x x x. The dominancy test focuses on the similarity of the main, prevalent
or essential features of the competing trademarks that might cause
confusion. Infringement takes place when the competing trademark
contains the essential features of another. Imitation or an effort to imitate
is unnecessary. The question is whether the use of the marks is likely to
cause confusion or deceive purchasers.
The holistic test considers the entirety of the marks, including labels and
packaging, in determining confusing similarity. The focus is not only on the
predominant words but also on the other features appearing on the labels.16
As to what test should be applied in a trademark infringement case, we said
in McDonalds Corporation v. Macjoy Fastfood Corporation17 that:
In trademark cases, particularly in ascertaining whether one trademark is
confusingly similar to another, no set rules can be deduced because each
case must be decided on its merits. In such cases, even more than in any
other litigation, precedent must be studied in the light of the facts of the
particular case. That is the reason why in trademark cases, jurisprudential
precedents should be applied only to a case if they are specifically in point.
The case of Emerald Garment Manufacturing Corporation v. Court of
Appeals,18 which involved an alleged trademark infringement of jeans
products, is worth referring to. There, H.D. Lee Co., Inc. (H.D. Lee), a
corporation based in the United States of America, claimed that Emerald
Garments trademark of "STYLISTIC MR. LEE" that it used on its jeans
products was confusingly similar to the "LEE" trademark that H.D. Lee used
on its own jeans products. Applying the holistic test, the Court ruled that
there was no infringement.
The holistic test is applicable here considering that the herein criminal cases
also involved trademark infringement in relation to jeans products.
Accordingly, the jeans trademarks of Levis Philippines and Diaz must be
considered as a whole in determining the likelihood of confusion between
them. The maong pants or jeans made and sold by Levis Philippines, which
included LEVIS 501, were very popular in the Philippines. The consuming
public knew that the original LEVIS 501 jeans were under a foreign brand
and quite expensive. Such jeans could be purchased only in malls or
boutiques as ready-to-wear items, and were not available in tailoring shops
like those of Diazs as well as not acquired on a "made-to-order" basis.
Under the circumstances, the consuming public could easily discern if the
jeans were original or fake LEVIS 501, or were manufactured by other
brands of jeans. Confusion and deception were remote, for, as the Court
has observed in Emerald Garments:
First, the products involved in the case at bar are, in the main, various
kinds of jeans. These are not your ordinary household items like catsup, soy
sauce or soap which are of minimal cost. Maong pants or jeans are not
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The prosecution also alleged that the accused copied the "two horse
design" of the petitioner-private complainant but the evidence will show
that there was no such design in the seized jeans. Instead, what is shown is
"buffalo design." Again, a horse and a buffalo are two different animals
which an ordinary customer can easily distinguish. x x x.
The prosecution further alleged that the red tab was copied by the accused.
However, evidence will show that the red tab used by the private
complainant indicates the word "LEVIS" while that of the accused indicates
the letters "LSJT" which means LS JEANS TAILORING. Again, even an
ordinary customer can distinguish the word LEVIS from the letters LSJT.
xxxx
In terms of classes of customers and channels of trade, the jeans products
of the private complainant and the accused cater to different classes of
customers and flow through the different channels of trade. The customers
of the private complainant are mall goers belonging to class A and B market
group while that of the accused are those who belong to class D and E
market who can only afford Php 300 for a pair of made-toorder pants.20 x x
x.
Moreover, based on the certificate issued by the Intellectual Property Office,
"LS JEANS TAILORING" was a registered trademark of Diaz. He had
registered his trademark prior to the filing of the present cases.21 The
Intellectual Property Office would certainly not have allowed the registration
had Diazs trademark been confusingly similar with the registered
trademark for LEVIS 501 jeans.
Given the foregoing, it should be plain that there was no likelihood of
confusion between the trademarks involved. Thereby, the evidence of guilt
did not satisfy the quantum of proof required for a criminal conviction,
which is proof beyond reasonable doubt. According to Section 2, Rule 133
of the Rules of Court, proof beyond a reasonable doubt does not mean such
a degree of proof as, excluding possibility of error, produces absolute
certainty. Moral certainty only is required, or that degree of proof which
produces conviction in an unprejudiced mind. Consequently, Diaz should be
acquitted of the charges.
WHEREFORE, the Court ACQUITS petitioner VICTORIO P. DIAZ of the
crimes of infringement of trademark charged in Criminal Case No. 00-0318
and Criminal Case No. 00-0319 for failure of the State to establish his guilt
by proof beyond reasonable doubt.
No pronouncement on costs of suit.
SO ORDERED.
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