Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. L-11724 November 23, 1959

WACK WACK GOLF AND COUNTRY CLUB, INC., petitioner, vs. COURT OF APPEALS, PETRONILO ARCANGEL and ANTONIO D. BERNARDO, respondents.

Juan T. Chuidian Law Office for petitioner. Amado A. Yatco for respondent Petronilo Arcangel. Deogracias T. Reyes, Benjamin C. Yatco and Ernesto Pangalangan for respondent Antonino B. Bernardo.

BARRERA, J.:

Ads By softonicThese petitions were filed by the Golf and Country Club, Inc., to review the decisions of the Court of Appeals in two cases involving the same corporation. (CA-G. R. No. 15910-R and CA-G. R. No. 15902-R). As the issues raised in said cases relate to the same principle of law, we shall take them up jointly and resolve the questions assigned therein in a single decision. G. R. No. L-11724, (CA-G. R. No. 15910).

Petronilo Arcangel, a former employee of the Golf and Country Club, Inc., filed with the Court of First Instance of Manila a money claim for overtime services rendered to said employer, for unenjoyed vacation leave, moral damages and attorney's fees. The employer having filed its answer to the complaint, the case was accordingly set for trial. At the hearing of May 6, 1955, however,

neither the defendant (employer) nor its counsel, Balcoff, Poblador and Cruz appeared notwithstanding the fact that they were duly notified of the hearing since March 22, 1955; hence, the plaintiff was allowed to continue presenting his evidence without the presence of defendant.

On May 10, 1955, the lower court rendered judgment for the plaintiff employee, awarding him a total of P7,702.78.

On May 14, 1955, the law firm of Chuidian, on behalf of the defendant employer, filed a petition to set aside the judgment on the ground of misunderstanding, mistake and excusable neglect, which petition was denied by the lower court in its order of May 31.

The employer appealed from this order not from the decision on the merits to the Court of Appeals claiming that the court a quo committed a grave abuse of discretion in denying its petition

for relief. The Court of Appeals, finding no justification for the employer's failure to appear at the hearing, upheld the order appealed from.

There is no disagreement as to the facts allegedly constituting the mistake, accident, or excusable negligence upon which the employer's petition for relief was based. As put down in petitioner-

appellant's brief filed in theCourt of Appeals, and adopted by said court, they are:

The records of this case show that defendant-appellant (employer) was represented by the

law office ofBalcoff and Poblador and Cruz from the inception of this case up to May 14, 1955, when law Office Juan T. Chuidian filed its appearance upon being referred by law

office of Balcoff and Poblador on May 12, 1955 the copy of the decision dated May 10, 1955 of the trial Court.

"Sometime before May 5, 1955 the defendant-appellant Wack Wack Golf and Country Club

Inc., had manifested its desire to replace their counsel Messrs. Paredes, Balcoff and Poblador in this case with Law Office Juan Chuidian. On May 5, 1955 Atty. Jesus Sayoc of the undersigned law firm conferred with Atty. Angel Cruz of Messrs. Paredes, Balcoff and Poblador for the purpose of securing the court file in this case and effect the substitution of attorney. Unfortunately, Mr. Balcoff was not in the office at the moment and

attorney Cruz declared he had no authority to turn over to Law office of Juan T. Chuidian the court papers and file in this case; besides, there were unpaid bill due Messrs. Paredes, Balcoff and Poblador. Arriving at the office, Mr. Jesus Sayoc advised Mr. Juan Chuidian of the reluctance of Messrs. Paredes, Balcoff andPoblador to turn over the court file of the case to the former. In view of this development, Atty. Chuidian called up Atty. Balcoff by telephone and it was agreed between the two gentlemen that inasmuch as Attys. Paredes, Balcoff and Poblador were still the attorneys of record in the case, Atty. Balcoff would sent a representative of his law office to appear at the hearing of the case of the following day, May 6, 1955 in order to ask for postponement of the case. Consequently, nobody in Law Office Juan Chuidian appeared in behalf of defendant-appellant on May 6, 1955 before

the Court. As a matter of fact, the records of the case were turned over to Law Office Juan T. Chuidian only on May 13, 1955 after Law Office Juan T. Chuidian had received on May

12, 1955 through Messrs. Paredes, Balcoff and Poblador a copy of the decision dated May 10, 1955 of the Court. On the other hand, Atty. Angel Cruz or any associate lawyer of Messrs. Paredes, Balcoff and Poblador did not appear for defendant-appellant on May 6, 1955.

We are with the Court of Appeals in the observation that as of May 6, 1955, the law firm of Balcoff and Poblador and Angel Cruz were still the employer's counsel of record, the law office of Juan Chuidian having entered its appearance in the case only on May 14, 1955. As such counsel of record, said law firm must have known that, its impending relief as counsel for the defendant notwithstanding, it is under obligation to protect the client's interest (which includes appearance at the hearing) until its final release from the professional relationship with such client. For its part, the court could recognize no other representation on behalf of the client except such counsel of record until a formal substitution of attorney is effected. Thus, any agreement or arrangement such counsel of record and its client may reach regarding the presentation of the client' case in the court is purely their private concern. Proceedings in the court cannot be made to depend on them. The lack of coordination or understanding between the two law firms in the instant case cannot be considered as a legal excuse or falling within the ambit of excusable negligence to justify the granting of relief from the order declaring the client in default, or as in the case, from a decision entered after presentation of evidence in his absence.

Where the defendants were given every reasonable opportunity to try their case and no legal excuse was presented for a further adjournment, and order denying defendant's motion to

set aside their default and vacate the judgment against them entered upon such default, was proper. (Centerville Creamy Co. vs. Waxler, 30 N.T.S. 2d. 232, 262 App. Div. 1055.)

G.R. No. L-11724 (CA-G.R. No. 15902-R):.

Ads By softonicOn February 18, 1953, Antonino Bernardo, former official of appellant, filed with the Court of First Instance of Manila a claim against the Wack Wack Golf & Country Club, Inc. for overtime pay, unenjoyed vacation and sick leaves from 1946 to 1951 and attorney's fees. As the employer denied the claim, the case was set for trial.

At the hearing of May 12, 1955, after about 8 previous postponements, nobody appeared for the employer although said defendant was represented from the commencement of the proceeding by Atty. Angel Cruz and was duly notified of the hearing since March 26, 1955. Consequently, the plaintiff-employee was permitted to continue presenting his evidence before the Deputy Clerk of Court who was delegated for this purpose.

On May 14, 1955, the lower court adjudged the plaintiff entitled to the claim, and sentenced defendant-employer to pay the total sum of P26,422.78.

On the same day, May 14, 1955, the employer represented by the law office of Juan Chuidian, filed a petition for relief from the order authorizing the Deputy Clerk of Court to receive plaintiff's evidence and for the re-opening of the case. The petition was later supplemented by another similarly praying for the setting aside of the decision rendered therein, on the ground of accident or excusable negligence. Upon plaintiff's opposition, these petitions were denied by the court in its order of May 31, 1955. From this order of denial, defendant employer appealed to the Court of Appeals. On October 30, 1956, the Court of Appeals affirmed the disputed order, for the reason that under the circumstances, there was no justification for defendant's counsel to anticipate that the justification for defendant's counsel to anticipate that the Court would grant a motion for postponement of the hearing of May 12, 1955.

The accident or excusable negligence referred to by the new counsel for defendant employer is stated in the petition for relief filed in the lower court, thus:

1. That defendant heretofore had been represented by attorney Angel Cruz; that for certain reasons the defendant recently contracted the services of law office of Juan T. Chuidian to handle this case; in substitution of Atty. Angel Cruz, the appearance of the undersigned law office has been filed with this Honorable Court on May 12, 1955;

2. That it was only in the afternoon of May 11, 1955, that the records of this case were sent to the undersigned Law Office, and that Atty. Juan T. Chuidian was then out of town and, consequently, nobody knew what action to take in this case;

3. That in the morning of May 12, 1955, Atty. Juan T. Chuidian telephoned the undersigned law office and requested that one of the assistant attorneys appear at the sala in connection with the scheduled hearing of the above-entitled case, and to move for the postponement thereof on the obvious reason that the undersigned law firm was not prepared right then and there to proceed with the trial of the case inasmuch as the facts of the case were not then sufficiently known to any of the associate attorneys;

4. That when Attorney Suntay of the undersigned law office arrived at the sala of this Honorable Court, he was informed that the case had been called earlier in the calendar and

in view of the failure of any person to appear in behalf of defendant, the Deputy Clerk of Court was authorized to receive the evidence for the plaintiff;

5. The subsequent efforts of Attorney Suntay to suspend the reception of plaintiff's evidence and postpone the hearing and proved fruitless; ...

From the foregoing facts, it is evident that Atty. Suntay's appearance (late by some 35 minutes) at the hearing of the case was solely for the purpose of securing another postponement of the trial; that his delay was brought about by the absence of the principal counsel in town, and by want of instructions from the latter as to what action his assistants should take on the matter; that the records of the case were only turned over to the new counsel on May 11, and that there was no time to prepare for the trial. Under these circumstances, the employer's charge that the trial court abused its discretion in denying its petition for relief from the order authorizing the reception of plaintiff's evidence in the absence of the defendant and the judgment rendered in the case, is premised on the ground (1) that counsel's tardiness or delay as well as his unpreparedness to go to trial are accidental or may be considered as excusable negligence, and (2) that the trial court should have allowed the motion for postponement.

Both points find adequate answer in the Court of Appeals ruling which we quote with approval:

The hearing on May 12, 1955 had been fixed, with the conformity of both parties, as early as March 18, 1955. Not only that, but the verbal order issued in open court was supplemented by a written order, copy of which was received by defendant's counsel on March 26, 1955. On the date of the trial defendant was still represented by Atty. Angel Cruz as counsel of record. Up to then there had been no substitution of attorneys, nor had Attorney Cruz withdrawn his appearance in the case. Indeed the record does not show that he ever did withdraw his appearance or filed a motion for substitution. The responsibility for representing defendant at the trial on May 12, 1955 was therefore still his. On the other hand if it is true, as alleged by appellant, that the services of Attorney Juan Chuidian had been engaged sometime prior to May 11, 1955 then it was the latter's duty to file his appearance opportunely and prepare for the trial on May 12, 1955. It is to be presumed that in accepting the case Attorney Chuidian knew that the trial was to be held on that date; and he certainly was not justified in accepting the case unless he was prepared to go to trial as scheduled. He had no right to take for granted the liberality of the court or generosity of the plaintiff by appearing, through an assistant of his, after the case had been actually called on the calendar and while the evidence of the plaintiff was already being received, and then only to ask (verbally) for another postponement.

All motions for postponement should be presented at such time as is practicable to prevent the adverse party from incurring unnecessary expenses by coming to trial, otherwise postponement shall be denied. And a party moving for the postponement should be in court on the day for trial if the motion was not acted upon favorably before that day. He has no right to rely either on the liberality of the court, or on the generosity of the adverse party." (Moran on Rules of Court, 1952 edition, pp. 651-653, citing Linus vs. Robira, 61 Phil., 907; Macondray & Co. vs. Paredes, G. R. No. 38255, Sept. 5 1933; Sunico vs. Villapando, 14 Phil., 352.)

In addition, the records of these two cases reveal that even prior to May 5, 1955, defendant-appellant had manifested its desire to replace its former counsel Messrs. Paredes, Balcoff and Poblador with the law office of Atty. Juan Chuidian. If this were so, it was the bounden duty of both law firms to have made the necessary arrangement for the protection of the interest of their client. Their failure to do so cannot certainly be considered excusable neglect to the extent of making the

action of the trial court, as well as the Court of Appeals in denying relief based thereon, an abuse of discretion constituting reversible error.

Although no longer necessary in view of the conclusions already reached and expressed, attention may be drawn to the lack of the required affidavits of merit to support the petitions for relief. While there are sworn statements on the alleged mistake, accident, and/or excusable negligence, there is in G.R. No. L-11724, total absence of, and in G.R. No. L-11725, insufficient affidavit showing the facts constituting the valid defense which the movant may prove in case a new trial is granted. Even in the latter case, the only reference made in the affidavit of the assistant lawyer in the law firm of Atty. Chuidian, who as admitted in the pleadings submitted by them, did not know the facts of the case, was the statement "that the defendant has genuine and bona fide defenses to the claims interposed by plaintiff, more particularly set out in its Amended Answer dated August 4, 1954." This amended answer is not under oath. Consequently, the mere incorporation thereof by reference made by one who had no knowledge of the said defenses does not comply with the requirements of the rules and decisions on the matter. The affidavits of merit must state facts, and not mere conclusions or opinions, otherwise they are not valid.1

Anent the question raised by petitioner in both instances regarding the legality of the lower court's order authorizing the Deputy Clerk of Court to receive plaintiff's evidence, we again make our own the Court of Appeals ruling, thus:

Defendant next contends that the trial court acted contrary to law and gravely abused its discretion when it delegated the Deputy Clerk of Court to receive plaintiff's evidence. It should be borne in mind that the delegation was made in view of the absence of defendant and his counsel and that the function thus delegated was merely ministerial, namely, the taking down of the testimony of the witnesses and the marking down of whatever documentary evidence would be presented. There could be no occasion for the exercise of judicial discretion such as might have been called for if the other party had been present to object to questions that were propounded or to the admission of exhibits. It cannot therefore be seriously maintained that any prejudice was caused to defendant by the action taken by the Court.

Wherefore, finding no error in the decisions of the Court of Appeals sought to be nullified, the petitions filed in these two cases are hereby dismissed, with costs. It is so ordered.

Paras, C. J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Reyes, J.B.L., Endencia, and Gutierrez David, JJ., concur.

Footnotes

1 Estrella vs. Zamora, 5 Phil., 415; Philippine Engineering Co. vs. Argosino, 49 Phil., 983; Coombs vs. Santos, 24 Phil., 446.

Republic of the Philippines SUPREME COURT

Manila

THIRD DIVISION

A. C. No. 7421 October 10, 2007

ELISA V. VENTEREZ, GENARO DE VERA, INOCENCIA V. RAMIREZ, PACITA V. MILLS, ANTONINA V. PALMA and RAMON DE VERA, Complainants, vs. ATTY. RODRIGO R. COSME, Respondent.

R E S O L U T I O N

CHICO-NAZARIO, J.:

Ads By softonicBefore Us is a Complaint filed by complainants Eliza V. Venterez, Genaro de Vera, Inocencia V. Ramirez, Pacita V. Mills, Antonina V. Palma and Ramon de Vera against respondent Atty. Rodrigo R. Cosme, charging the latter with Abandonment, Gross Negligence and Dereliction of Duty.

Complainants contracted the legal services of respondent in Civil Case No. 981 entitled, "Sps.

Daniel and Oviedo, et al. v. Eliza de Vera, et al.," for Declaration of Ownership with Damagesfiled before the Municipal Trial Court (MTC) of Calasiao, Pangasinan. Respondent represented the complainants, who were defendants in said case, until a Decision thereon was rendered by the MTC on 25 February 2004. The MTC ruled against the complainants. Respondent

received a copy of the said Decision on 3 March 2004.

Complainants alleged that they directed the respondent to either file a Motion

for Reconsideration or a Notice of Appeal, but respondent failed or refused to do so. The 15-day period within which to file an appeal or a motion for reconsideration of the MTC Decision expired on 18 March 2004. Complainant Elisa V. Venterez was constrained to contract another lawyer to

prepare the Motion for Reconsideration which was filed on 19 March 2004. It must be stressed that the said motion was signed by complainant Elisa V. Venterez herself as the said lawyer did not enter his appearance.

On 23 March 2004, the said Motion for Reconsideration was denied1 by the MTC. Respondent was not furnished a copy of the denial of the motion per a Certification2 issued by Clerk of Court II Zenaida C. de Vera. On 31 March 2004, a Motion for Issuance of Writ of Execution3 was filed by the plaintiffs in Civil Case No. 981 but respondent never bothered to file an opposition to or any comment on the said motion despite receipt thereof. The motion was eventually granted4 by the MTC on 23 April 2004. On 28 April 2004, a Writ of Execution5 was issued and on 26 April 2004,

an Entry of Judgment6 was made in the said case.

Two months after respondent received a copy of the Decision, the respondent filed his Notice of Retirement ofCounsel with the MTC on 3 May 2004.

Feeling aggrieved by respondents actuations, complainants filed the instant administrative complaint against him.7

In his Answer,8 respondent denied the claim of complainants that soon after the Decision was rendered by the MTC, they (complainants) directed him to file an appeal or a motion for reconsideration thereof. For his defense, respondent averred that Salvador Ramirez (the son of one of the complainants, Inocencia V. Ramirez), informed him that "he [was] withdrawing the case from the respondent because he already engaged another lawyer to take over the case, so respondent gave the records of the case to him." Respondent explained that "after Salvador Ramirez withdrew the case from the respondent, and engaged another lawyer, the respondent turned over the records of the case to him and the respondent ceased as the counsel of the complainants." Respondent

further alleged that the said Motion for Reconsideration was already prepared by another lawyer. He denied being furnished a copy of the Motion for Reconsideration allegedly prepared and filed by another lawyer engaged by complainant Elisa V. Venterez and that he was served with a copy of

the denial of the said Motion by the MTC. Respondent also clarified that the "last day of the 15-day period for the perfection of the appeal is 19 March 2004 since a copy of the decision was served on the respondent on 4 March 2004." Finally, respondent argued that "when the respondent was served

a copy of the Motion for Writ of Execution, he immediately notified Ramirezabout said Motion but Ramirez came to see the respondent only on 3 May 2005, when the respondent asked him to sign a Notice of Retirement of Counsel signed by Ramirez which respondent immediately filed in court."

Pursuant to the complaint, a hearing was conducted by the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP) at the IBP Building, Ortigas Center, Pasig City, on 15 February 2006.

On 11 April 2006, Investigating Commissioner Dennis A. B. Funa submitted his Report and Recommendation,9finding respondent liable for gross negligence and recommending the imposition upon him of the penalty of three months suspension, to wit:

PREMISES CONSIDERED, it is submitted that Respondent is GUILTY of Gross Negligence and should be given the penalty of THREE (3) MONTHS SUSPENSION.

Thereafter, the IBP Board of Governors passed Resolution10 No. XVII-2006-457 dated 8 September 2006, approving and adopting the recommendation of the Investigating Commissioner, thus:

Ads By softonicRESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering that Respondent is guilty of gross negligence, Atty. Rodrigo Cosme is hereby SUSPENDED from the practice of law for three (3) months.11

We sustain the findings and recommendation of the IBP Board of Governors.

The core issue is whether the respondent committed culpable negligence in handling complainants case, as would warrant disciplinary action.

No lawyer is obliged to advocate for every person who may wish to become his client, but once he agrees to take up the cause of a client, the lawyer owes fidelity to such cause and must be mindful of the trust and confidence reposed in him.12Among the fundamental rules of ethics is the principle that an attorney who undertakes an action impliedly stipulates to carry it to its termination, that is, until the case becomes final and executory. A lawyer is not at liberty to abandon his client and withdraw his services without reasonable cause and only upon notice appropriate in the

circumstances.13 Any dereliction of duty by a counsel affects the client.14 This means that his client is entitled to the benefit of any and every remedy and defense that is authorized by the law and he may expect his lawyer to assert every such remedy or defense.15

The Decision in Civil Case No. 981 was rendered by the MTC of Calasaio, Pangasinan, on 25 February 2004. Respondent admitted16 that he was served a copy of the said Decision on 4 March 2004. After having received a copy of the MTC Decision, respondent did not bother to file a Motion for Reconsideration or a notice of appeal with the proper courts. Thus, complainants were compelled to engage the services of a new counsel to file a Motion for Reconsideration with the MTC who did not, however, enter his appearance as new counsel. It bears stressing that during this time, respondent had not yet filed any notice of withdrawal as counsel for the complainants in Civil Case No. 981. Respondent only formally withdrew as counsel for complainant in Civil Case No. 981 when he filed with the MTC his Notice17 of Retirement as Counsel on 5 May 2004, on the ground that "he was also retired as Counsel for the [complainants] two days after he received copy of the decision rendered in this case when SALVADOR RAMIREZ, a representative of the [complainants], withdrew all the records of the case from [respondent] to be given to his new counsel."

We cannot accept respondents defense that he had already withdrawn from the case two days after his receipt of the MTC Decision and that he had allegedly communicated this withdrawal to Salvador Ramirez, son of one of the herein complainants, Inocencia Ramirez. It is an apparent attempt on the part of respondent to wash his hands of any liability for failing to pursue any of the available remedies to complainants from the adverse MTC Decision.

The rule in this jurisdiction is that a client has the absolute right to terminate the attorney-client relation at any time with or without cause.18 The right of an attorney to withdraw or terminate the relation other than for sufficient cause is, however, considerably restricted.19 Among the fundamental rules of ethics is the principle that an attorney who undertakes to conduct an action impliedly stipulates to carry it to its conclusion.20 He is not at liberty to abandon it without reasonable cause.21 A lawyer's right to withdraw from a case before its final adjudication arises only from the client's written consent or from a good cause.22

Section 26, Rule 138 of the Revised Rules of Court provides:

Sec. 26. Change of attorneys -- An attorney may retire at any time from any action or special proceeding, by the written consent of his client filed in court. He may also retire at any time from an action or special proceeding, without the consent of his client, should the court, on notice to the client and attorney, and on hearing, determine that he ought to be allowed to retire. In case of substitution, the name of the attorney newly employed shall be entered on the docket of the court in place of the former one, and written notice of the change shall be given to the adverse party.

A lawyer may retire at any time from any action or special proceeding with the written consent of his client filed in court and with a copy thereof served upon the adverse party. Should the client refuse to give his consent, the lawyer must file an application with the court. The court, on notice to the client and adverse party, shall determine whether the lawyer ought to be allowed to retire. The application for withdrawal must be based on a good cause.23

What constitute good cause for the withdrawal of services by the counsel are identified under Rule 22.01, Canon 22 of the Code of Professional Responsibility, which provides:

CANON 22 -- A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE CIRCUMSTANCES.

Rule 22.01-- A lawyer may WITHDRAW his services in any of the following cases:

a) When the client pursues an illegal or immoral course of conduct in connection with the matter he is handling;

b) When the client insists that the lawyer pursue conduct violative of these canons and rules;

c) When his inability to work with co-counsel will not promote the best interest of the client;

d) When the mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively;

e) When the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement;

f) When the lawyer is elected or appointed to public office; and

g) Other similar cases.

The instant case does not fall under any of the grounds aforementioned. Neither can the circumstances of this case be considered analogous to the grounds thus explicitly enumerated. Contrary to respondents contention, his professional relations as a lawyer with his clients are not terminated by the simple turnover of the records of the case to his clients. Respondents defense completely crumbles in face of the fact that Salvador Ramirez is not even a party in Civil Case No. 981 and, hence, had no authority to withdraw the records of the said case from respondent or to terminate the latters services.

Assuming, nevertheless, that respondent was justified in withdrawing his services, he, however, cannot just do so and leave complainants in the cold, unprotected. The lawyer has no right to presume that his petition for withdrawal will be granted by the court.24 Until his withdrawal shall have been approved, the lawyer remains counsel of record who is expected by his clients, as well as by the court, to do what the interests of his clients require.25 He must still appear before the court to protect the interest of his clients by availing himself of the proper remedy, for the attorney-client relations are not terminated formally until there is a withdrawal of record.

Without a proper revocation of his authority and withdrawal as counsel, respondent remains counsel of record for the complainants in Civil Case No. 981; and whether he has a valid cause to withdraw from the case, he cannot immediately do so and leave his clients without representation. An attorney may only retire from the case either by a written consent of his client or by permission of the court after due notice and hearing, in which event, the attorney should see to it that the name of the new attorney is recorded in the case.26 Respondent did not comply with these obligations. Therefore, he remains the counsel of record for the complainants in Civil Case No. 981 with the duty to protect complainants interest. Had he made the necessary inquiries as to the status of the case, he would have known that he was still the counsel of record as no entry of appearance was ever made by another counsel. It would have been easily discernible on his part that there was no change in his status as complainants lawyer. As of that time, their client-lawyer relationship was still subsisting. Therefore, he would have known that the Motion for Reconsideration was denied; and a writ of execution had been issued under the circumstances.

All told, we rule and so hold that on account of respondents failure to protect the interest of complainants, respondent indeed violated Rule 18.03, Canon 18 of the Code of Professional

Responsibility, which states that "a lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable." Respondent is reminded that the practice of law is a special privilege bestowed only upon those who are competent intellectually, academically and morally. This Court has been exacting in its expectations for the members of the Bar to always uphold the integrity and dignity of the legal profession and refrain from any act or omission which might lessen the trust and confidence of the public. 1wphi1

The determination of the appropriate penalty to be imposed on an errant lawyer involves the exercise of sound judicial discretion based on the facts of the case.27 In cases of similar nature, the penalty imposed by the Court consisted of reprimand,28 fine of five hundred pesos with warning,29 suspension of three months,30 six months31and even disbarment32 in an aggravated case.

The facts of the case show that respondent failed to live up to his duties as a lawyer pursuant to the Code of Professional Responsibility. We conclude that a 3-month suspension from the practice of law is a just penalty under the circumstances.

WHEREFORE, the resolution of the IBP Board of Governors approving and adopting the report and recommendation of the Investigating Commissioner is hereby AFFIRMED. Accordingly, ATTY. RODRIGO R. COSME 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 decision be attached to respondents personal record with the Office of the Bar Confidant and copies be furnished to all chapters of the Integrated Bar of the Philippines and to all courts of the land.

SO ORDERED.

MINITA V. CHICO-NAZARIO Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO

Associate Justice Chairperson

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

RUBEN T. REYES

Associate Justice

Footnotes

1 Rollo, p. 19.

2 Id. at 43.

3 Id. at 20.

4 Id. at 21.

5 Id. at 23-24.

6 Id. at 22.

7 Id. at 1-6.

8 Id. at 86.

9 Id. at 149-155.

10 Id. at 86.

11 Id. at .

12 Tan v. Lupak, G.R. No. 93707, 23 January 2001, 350 SCRA 74, 84.

13 Montano v. Integrated Bar of the Philippines, A.C. No. 4215, 21 May 2001, 358 SCRA 1, 9.

14 Philhouse Developmwnt Corporation v. Consolidated Orix Leasing and Finance Corporation, G.R. No. 135287, 4 April

2001, 356 SCRA 281, 285. 15

Santiago v. Fojas, A.C. No. 4103, 7 September 1995, 248 SCRA 68, 73-74. 16

Rollo, p. 28. 17

Id. at 31. 18

Franciso v. Portugal, A.C. No. 6155, 14 March 2006, 484 SCRA 571, 580. 19

Lim, Jr. v. Villarosa, A.C. No. 5303, 15 June 2006, 490 SCRA 494, 514. 20

Orcino v. Gaspar, 344 Phil. 792, 798 (1997). 21

De Juan v. Baria III, A.C. No. 5817, 27 May 2004, 429 SCRA 187, 191. 22

Orcino v. Gaspar, supra note 20. 23

Id. 24

Orcino v. Gaspar, supra note 20 at 800. 25

Id. at 800-801. 26

De Juan v. Baria III, supra note 21 at 193. 27

Endaya v. Atty. Oca, 457 Phil. 314, 329 (2003). 28

Santiago v. Fojas, A.M. No. 4103, 7 September 1995, 248 SCRA 68, 75-76. 29

Basas v. Icawat, 393 Phil. 304, 310 (2000). 30

Ford v. Daitol, 320 Phil. 53, 59 (1995). 31

Perla Compania de Seguros, Inc. v. Atty. Saquilabon, 337 Phil. 555, 559 (1997). 32

Mariveles v. Mallari, A.C. No. 3294, 17 February 1993, 219 SCRA 44, 46.

Republic of the Philippines SUPREME COURT

Manila

EN BANC

A.C. No. 5834 February 22, 2011 (formerly CBD-01-861)

TERESITA D. SANTECO, Complainant, vs. ATTY. LUNA B. AVANCE, Respondent.

D E C I S I O N

PER CURIAM:

Ads By softonicThe case originated from an administrative complaint1 filed by Teresita D. Santeco against respondent Atty. Luna B. Avance for mishandling Civil Case No. 97-275, an action to declare a deed of absolute sale null and void and for reconveyance and damages, which complainant had filed before the Regional Trial Court (RTC) of Makati City.

In an En Banc Decision2 dated December 11, 2003, the Courtfound respondent guilty of gross misconduct for, among others, abandoning her clients cause in bad faith and persistent refusal to comply with lawful orders directed at her without any explanation for doing so. She was ordered suspended from the practice of law for a period of five years, and was likewise directed to return to complainant, within ten (10) days from notice, the amount of P3,900.00 which complainant paid her

for the filing of a petition for certiorari with the Court of Appeals (CA), which she never filed.

Respondent moved to reconsider3 the decision but her motion was denied in a Resolution4 dated February 24, 2004.

Subsequently, while respondents five-year suspension from the practice of law was still in effect, Judge Consuelo Amog-Bocar, Presiding Judge of the RTC of Iba, Zambales, Branch 71, sent a letter-report5 dated November 12, 2007 to then Court Administrator Christopher O. Lock informing the latter that respondent had appeared and actively participated in three cases wherein she misrepresented herself as "Atty. Liezl Tanglao." When her opposing counsels confronted her and showed to the court a certification regarding her suspension, respondent admitted and conceded

that she is Atty. Luna B. Avance, but qualified that she was only suspended for three years and that her suspension has already been lifted. Judge Amog-Bocar further stated that respondent nonetheless withdrew her appearance from all the cases. Attached to the letter-report were copies of several pertinent orders from her court confirming the report.

Acting on Judge Amog-Bocars letter-report, the Court, in a Resolution6 dated April 9, 2008, required respondent to comment within ten (10) days from notice. Respondent, however, failed to file

the required comment. On June 10, 2009, the Court reiterated the directive to comment; otherwise the case would be deemed submitted for resolution based on available records on file with

the Court. Still, respondent failed to comply despite notice. Accordingly, this Court issued a Resolution7 on September 29, 2009 finding respondent guilty of indirect contempt. The dispositive portion of the Resolution reads:

ACCORDINGLY, respondent is hereby found guilty of indirect contempt and is hereby FINED in the amount of Thirty Thousand Pesos (P30,000.00) and STERNLY WARNED that a repetition of the same or similar infractions will be dealt with more severely.

Let all courts, through the Office of the Court Administrator, as well as the Bar of the Philippines and the Office of the Bar Confidant, be notified of this Resolution, and be it duly recorded in the personal file of respondent Atty. Luna B. Avance.8

A copy of the September 29, 2009 Resolution was sent to respondents address of record at "26-B Korea Ave., Ph. 4, Greenheights Subd., Nangka, Marikina City" by registered mail. The same was

delivered by Postman Hermoso Mesa, Jr. and duly received by one Cadete on October 29, 2009, per certification9 dated February 3, 2011 by Postmaster Rufino C. Robles of the Marikina Central Post Office.

Despite due notice, however, respondent failed to pay the fine imposed in the September 29, 2009 Resolution based on a certification issued by Araceli C. Bayuga, Chief Judicial Staff Officer of

the Collection and Disbursement Division, Fiscal Management and Office. The said certification reads:

This is to certify that as per records of the Division, there is no record of payment made by one ATTY. LUNA B. AVANCE in the amount of Thirty Thousand Pesos (P30,000.00) as payment for COURT FINE imposed in the resolution dated 29 Sept. 2009 Re: Adm. Case No. 5834.10

In view of the foregoing, the Court finds respondent unfit to continue as a member of the bar.

Ads By softonicAs an officer of the court, it is a lawyers duty to uphold the dignity and authority of the court. The highest form of respect for judicial authority is shown by a lawyers obedience to court orders and processes.11

Here, respondents conduct evidently fell short of what is expected of her as an officer of the court as

she obviously possesses a habit of defying this Courts orders. She willfully disobeyed this Court when she continued her law practice despite the five-year suspension order against her and even misrepresented herself to be another person in order to evade said penalty. Thereafter, when she was twice ordered to comment on her continued law practice while still suspended,

nothing was heard from her despite receipt of two Resolutionsfrom this Court. Neither did she pay the P30,000.00 fine imposed in the September 29, 2009 Resolution.

We have held that failure to comply with Court directives constitutes gross misconduct, insubordination or disrespect which merits a lawyers suspension or even disbarment.12 Sebastian v. Bajar13 teaches

Respondents cavalier attitude in repeatedly ignoring the orders of the Supreme Court constitutes utter disrespect to the judicial institution. Respondents conduct indicates a high degree of irresponsibility. A Courts Resolution is "not to be construed as a mere request, nor should it be complied with partially, inadequately, or selectively. Respondents obstinate refusal to comply with the Courts orders not "only betrays a recalcitrant flaw in her character; it also underscores her disrespect of the Courts lawful orders which is only too deserving of reproof."141avvphi1

Under Section 27, Rule 138 of the Rules of Court a member of the bar may be disbarred or suspended from office as an attorney for gross misconduct and/or for a willful disobedience of any lawful order of a superior court, to wit:

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 lawful order of a superior court, or for corruptly or willfully 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 supplied.)

In repeatedly disobeying this Courts orders, respondent proved herself unworthy of membership in the Philippine Bar. Worse, she remains indifferent to the need to reform herself. Clearly, she is unfit to discharge the duties of an officer of the court and deserves the ultimate penalty of disbarment.

WHEREFORE, respondent ATTY. LUNA B. AVANCE is hereby DISBARRED for gross misconduct and willful disobedience of lawful orders of a superior court. Her name is ORDERED STRICKEN OFF from the Roll of Attorneys.

Let a copy of this decision be attached to respondents personal record with the Office of the Bar Confidant and copies be furnished to all chapters of the Integrated Bar of the Philippines and to all courts of the land.

SO ORDERED.

RENATO C. CORONA Chief Justice

ANTONIO T. CARPIO (On official leave)

Associate Justice CONCHITA CARPIO MORALES* Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

(On official leave) TERESITA J. LEONARDO-DE CASTRO*

Associate Justice

ARTURO D. BRION

Associate Justice

DIOSDADO M. PERALTA Associate Justice

LUCAS P. BERSAMIN Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

ROBERTO A. ABAD

Associate Justice

MARTIN S. VILLARAMA, JR. Associate Justice

JOSE PORTUGAL PEREZ Associate Justice

JOSE CATRAL MENDOZA Associate Justice

MARIA LOURDES P.A. SERENO Associate Justice

Footnotes

* On official leave.

1 Rollo, pp. 2-3.

2 Id. at 179-189.

3 Id. at 193-213.

4 Id. at 269.

5 Id. at 277.

6 Id. at 283.

7 Id. at 285-288.

8 Id. at 287.

9 Id. at 291.

10 Id. at 289. Dated December 28, 2010.

11 Cuizon v. Macalino, A.C. No. 4334, July 7, 2004, 433 SCRA 479, 484, citing Villaflor v. Sarita, A.C.-CBD No. 471, June

10, 1999, 308 SCRA 129, 136. 12

Sebastian v. Bajar, A.C. No. 3731, September 7, 2007, 532 SCRA 435 and Cuizon v. Macalino, supra. 13

Id. 14

Id. at 449. Citations omitted.

Republic of the Philippines SUPREME COURT

Manila

THIRD DIVISION

A.C. No. 6155 March 14, 2006

MA. GINA L. FRANCISCO, JOSEPHINE S. TAN and CARLOS M. JOAQUIN, Complainants, vs. ATTY. JAIME JUANITO P. PORTUGAL, Respondent.

D E C I S I O N

TINGA, J.:

Ads By softonicComplainants filed before this Court an affidavit-complaint1 on 15 August 2003 against Atty. Jaime Juanito P. Portugal (respondent) for violation of the Lawyers Oath, gross misconduct, and gross negligence. Complainants are related to petitioners in G.R. No. 152621-23 entitled SPO1 Ernest C. Francisco, SPO1 Donato F. Tan and PO3 Rolando M. Joaquin v. People of

the Philippines, in whose behalf respondent filed thePetition for Review on Certiorari (Ad Cautelam) in the case.

The complaint against respondent originated from his alleged mishandling of the above-mentioned

petition which eventually led to its denial with finality by this Court to the prejudice of petitioners therein.

The facts are as follows:

On 21 March 1994, SPO1 Ernesto C. Francisco, SPO1 Donato F. Tan and PO3 Rolando M. Joaquin (eventually petitioners in G.R. No. 152621-23, collectively referred to herein as the accused) were involved in a shooting incident which resulted in the death of two individuals and the serious injury of

another. As a result, Informations were filed against them before the Sandiganbayan for murder and frustrated murder. The accused pleaded not guilty and trial ensued. After due trial, the Sandiganbayan2 found the accused guilty of two counts of homicide and one count of attempted homicide.

At that juncture, complainants engaged the services of herein respondent for the accused.

Respondent then filed a Motion for Reconsideration with the Sandiganbayan but it was denied in a Resolution dated 21 August 2001. Unfazed by the denial, respondent filed an Motion for Leave to Motion for Reconsideration, with the attachedMotion for Reconsideration.3 Pending resolution by the Sandiganbayan, respondent also filed with this Court a Petition for Review on Certiorari (Ad Cautelam) on 3 May 2002.

Thereafter, complainants never heard from respondent again despite the frequent telephone calls they made to his office. When respondent did not return their phone inquiries, complainants went to respondents last known address only to find out that he had moved out without any forwarding address.

More than a year after the petition was filed, complainants were constrained to personally verify the status of thead cautelam petition as they had neither news from respondent about the case nor

knowledge of his whereabouts. They were shocked to discover that the Court had already issued a Resolution4 dated 3 July 2002, denying the petition for late filing and non-payment of docket fees.

Complainants also learned that the said Resolution had attained finality and warrants of arrest5 had already been issued against the accused because respondent, whose whereabouts remained unknown, did nothing to prevent the reglementary period for seeking reconsideration from lapsing.

In his Comment,6 respondent states that it is of vital significance that the Court notes that he was not the original counsel of the accused. He only met the accused during the promulgation of

the Sandiganbayan decision convicting the accused of two counts of homicide and one count of attempted homicide. He was merely requested by the original counsel to be on hand, assist the

accused, and be present at the promulgation of theSandiganbayan decision.

Ads By softonicRespondent claims that there was no formal engagement undertaken by the parties. But only because of his sincere effort and in true spirit of the Lawyers Oath did he file the Motion for Reconsideration. Though admitting its highly irregular character, respondent also made informal but

urgent and personal representation with the members of the Division of the Sandiganbayan who promulgated the decision of conviction. He asserts that because of all the efforts he put into the case of the accused, his other professional obligations were neglected and that all these were done without proper and adequate remuneration.

As to the ad cautelam petition, respondent maintains that it was filed on time. He stresses that the last day of filing of the petition was on 3 April 2002 and on that very day, he filed with this Court a Motion for Extension of Time to File Petition for Review,7seeking an additional thirty (30) days to file the petition. Subsequently, on 3 May 2002, he filed the petition by registered mail and paid the corresponding docket fees. Hence, so he concludes, it was filed within the reglementary period.

Soon thereafter, respondent recounted all the "herculean" efforts he made in assisting the accused for almost a year after the promulgation of the Sandiganbayan decision. He considered the fact that it was a case he had just inherited from the original counsel; the effect of his handling the case on his other equally important professional obligations; the lack of adequate financial consideration for handling the case; and his plans to travel to the United States to explore further professional opportunities. He then decided to formally withdraw as counsel for the accused. He wrote a letter to PO3 Rolando Joaquin (PO3 Joaquin), who served as the contact person between respondent and complainants, explaining his decision to withdraw as their counsel, and attaching the Notice to Withdraw which respondent instructed the accused to sign and file with the Court. He sent the letter through registered mail but unfortunately, he could not locate the registry receipt issued for the letter.

Respondent states that he has asked the accused that he be discharged from the case and endorsed the Notice of Withdrawal to PO3 Joaquin for the latter to file with the Court. Unfortunately, PO3 Joaquin did not do so, as he was keenly aware that it would be difficult to find a new counsel who would be as equally accommodating as respondent. Respondent suggests this might have been the reason for the several calls complainants made to his office.

On 9 February 2004, the Court resolved to refer the matter to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. 1 awph!l .net

The case was assigned to Investigating Commissioner Leland R. Villadolid, Jr. (Commissioner Villadolid) who sent notices of hearing to the parties but of the three complainants, only complainant Carlos Joaquin appeared. Thus, in the mandatory conference held, the other two complainants were declared as having waived their rights to further participate in the IBP proceedings.8

The parties were directed to file their respective position papers and on 27 May 2005, Commissioner Villadolid submitted his Report and Recommendation finding respondent guilty of violation of the Code of Professional Responsibility9 and recommended the imposition of penalty ranging from reprimand to suspension of six (6) months. 1aw ph!l.n et10 On 12 November 2005, the Board of Directors of the IBP resolved to adopt and approve Commissioner Villadolids recommendation to find respondent guilty and specifically to recommend his suspension for six (6) months as penalty.

The only issue to be resolved in the case at bar is, considering all the facts presented, whether respondent committed gross negligence or misconduct in handling G.R. No. 152621-23, which eventually led to the ad cautelam petitions dismissal with finality.

After careful consideration of the records of the case, the Court finds the suspension recommended by the IBP proper.

In a criminal case like that handled by respondent in behalf of the accused, respondent has a higher duty to be circumspect in defending the accused for it is not only the property of the accused which stands to be lost but more importantly, their right to their life and liberty. As held in Regala v. Sandiganbayan:11

Thus, in the creation of lawyer-client relationship, there are rules, ethical conduct and duties that breathe life into it, among those, the fiduciary duty to his client which is of very delicate, exacting and confidential character, requiring a very high degree of fidelity and good faith, that is required by reason of necessity and public interest x x x .

It is also the strict sense of fidelity of a lawyer to his client that distinguishes him from any other profession in society. x x x12

At the onset, the Court takes notice that the ad cautelam petition was actually filed out of time. Though respondent filed with the Sandiganbayan an Urgent Motion for Leave to File Second Motion for Reconsideration with the attached Second Motion for Reconsideration, he should have known that a second motion for reconsideration is a prohibited pleading13 and it rests on the sound discretion of the Sandiganbayan to admit it or not. Thus, in effect, the motion did not toll the reglementary period to appeal. Having failed to do so, the accused had already lost their right to appeal long before respondent filed his motion for extension. Therefore, respondent cannot now say he filed the ad cautelam petition on time. Also important to note is the allegation of complainants that the Sandiganbayan denied the second motion for reconsideration in its Resolution dated 7 February 2002. This respondent does not dispute.

As to respondents conduct in dealing with the accused and complainants, he definitely fell short of the high standard of assiduousness that a counsel must perform to safeguard the rights of his clients. As aptly observed by Commissioner Villadolid, respondent had not been quite candid in his dealings with the accused or complainants. The Court notes that though respondent represented to the accused that he had changed his office address, still, from the examination of the pleadings14 he filed, it can be gleaned that all of the pleadings have the same mailing address as that known to complainants. Presumably, at some point, respondents office would have received the Courts Resolution dismissing the petition. Of course, the prudent step to take in that situation was to at least inform the client of the adverse resolution since they had constantly called respondents office to check the status of the case. Even when he knew that complainants had been calling his office, he opted not to return their calls.

Respondent professed an inkling that the several phone calls of complainants may have been about the letter he sent PO3 Joaquin regarding his desire to be discharged as counsel of the case.

However, though aware of such likelihood, respondent still did not return their calls. Had he done so, he and complainants could have threshed out all unresolved matters between them.

Had respondent truly intended to withdraw his appearance for the accused, he as a lawyer who is presumably steeped in court procedures and practices, should have filed the notice of withdrawal himself instead of the accused. At the very least, he should have informed this Court through the appropriate manifestation that he had already given instructions to his clients on the proper way to go about the filing of the Notice of Withdrawal, as suggested by Commissioner Villadolid. In not so doing, he was negligent in handling the case of the accused.

Certainly, respondent ought to know that he was the one who should have filed the Notice to Withdraw and not the accused. His tale that he sent a registered letter to the accused and gave them instructions on how to go about respondents withdrawal from the case defies credulity. It should have been respondent who undertook the appropriate measures for the proper withdrawal of his representation. He should not have relied on his client to do it for him if such was truly the case. Without the presentation of the alleged registry receipt (or the return card, which confirms the receipt of the mail by the recipient) of the letter he allegedly sent to PO3 Joaquin, the Court cannot lend credence to respondents naked claim, especially so that complainants have been resolute in their stand that they did not hear from respondent after the latter had filed the ad cautelam petition. He could relieve himself of his responsibility as counsel only first by securing the written conformity of the accused and filing it with the court pursuant to Rule 138, Section 26 of the Rules of Court.15

The rule in this jurisdiction is that a client has the absolute right to terminate the attorney-client relation at anytime with or without cause. The right of an attorney to withdraw or terminate the relation other than for sufficient cause is, however, considerably restricted. Among the fundamental rules of ethics is the principle that an attorney who undertakes to conduct an action impliedly stipulates to carry it to its conclusion. He is not at liberty to abandon it without reasonable cause. A lawyers right to withdraw from a case before its final adjudication arises only from the clients written consent or from a good cause.16

We agree with Commissioner Villadolid that the dismissal of the ad cautelam petition was primarily due to the gross negligence of respondent. The Court has stressed in Aromin v. Boncavil17 that:

Once he agrees to take up the cause of the client, the lawyer owes fidelity to such cause and must always be mindful of the trust and confidence reposed in him. He must serve the client with competence and diligence, and champion the latters cause with wholehearted fidelity, care, and devotion. Elsewise stated, he owes entire devotion to the interest of the client, warm zeal in the maintenance and defense of his clients rights, and the exertion of the his utmost learning and ability to the end that nothing be taken or withheld from his client, save by the rules of law, legally applied. This simply means that his client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land and he may expect his lawyer to assert every such remedy or defense. If much is demanded from an attorney, it is because the entrusted privilege to practice law carries with it the correlative duties not only to the client but also to the court, to the bar, and to the public. A lawyer who performs his duty with diligence and candor not only protects the interest of his client; he also serves the ends of justice, does honor to the bar, and helps maintain the respect of the community to the legal profession.18

Respondent has time and again stated that he did all the endeavors he enumerated without adequate or proper remuneration. However, complainants have sufficiently disputed such claim when they attached in their position paper filed before the IBP a machine validated deposit slip in the amount of P15,500.00 for the Metro Bank savings account of one Jaime Portugal with account

number 7186509273.19 Respondent has neither admitted nor denied having claimed the deposited amount.

The Court also rejects respondents claim that there was no formal engagement between the parties and that he made all his efforts for the case without adequate and proper consideration. In the words of then Justice Panganiban (presently Chief Justice) in Burbe v. Atty. Magulta:20

After agreeing to take up the cause of a client, a lawyer owes fidelity to both cause and client, even if the client never paid any fee for the attorney-client relationship. Lawyering is not a business; it is a profession in which duty of public service, not money, is the primary consideration.21

Also to the point is another case where this Court ruled, thus:

A written contract is not an essential element in the employment of an attorney; the contract may be express or implied. To establish the relation, it is sufficient that the advice and assistance of an attorney is sought and received in any matter pertinent to his profession. x x x 22

Hence, even if respondent felt under-compensated in the case he undertook to defend, his obligation embodied in the Lawyers Oath and the Code of Professional Responsibility still remains unwavering. The zeal and the degree of fervor in handling the case should neither diminish nor cease just because of his perceived insufficiency of remuneration.

Lastly, the Court does not appreciate the offensive appellation respondent called the shooting incident that the accused was engaged in. He described the incident, thus: "the accused police officers who had been convicted of [h]omicide for the salvage of Froilan G. Cabiling and Jose M. Chua and [a]ttempted [h]omicide of Mario C. Macato."23 Rule 14.0124 of the Code of Professional Responsibility clearly directs lawyers not to discriminate clients as to their belief of the guilt of the latter. It is ironic that it is the defense counsel that actually branded his own clients as being the culprits that "salvaged" the victims. Though he might think of his clients as that, still it is unprofessional to be labeling an event as such when even the Sandiganbayan had not done so.

The IBP Board of Governors recommended the suspension of respondent for six (6) months, the most severe penalty recommended by Commissioner Villadolid, but did not explain why such penalty was justified. In a fairly recent case where the lawyer failed to file an appeal brief which resulted to the dismissal of the appeal of his client in the Court of Appeals, the Court imposed upon the erring lawyer the penalty of three (3) months suspension.25The Court finds it fit to impose the same in the case at bar.

WHEREFORE, premises considered, respondent is hereby SUSPENDED from the practice of law for three (3) months. Let a copy of the Resolution be furnished the Bar Confidant for appropriate annotation in the record of respondent.

SO ORDERED.

DANTE O. TINGA

Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING Associate Justice

Chairman

ANTONIO T. CARPIO Associate Justice

CONCHITA CARPIO MORALES Asscociate Justice

Footnotes

1 Rollo, pp. 1-13.

2 In a decision dated 30 April 2001, penned by Associate Justice Nicodemo T. Ferrer and concurred in by Associate

Justices Narciso S. Nario and Rodolfo G. Palattao. Id. at 26-54. 3 Dated 11 September 2001, id. at 80-87.

4 Id. at 123.

5 Id. at 124-126

6 Id. at 132-137.

7 Id. at 138-141.

8 Rollo, Vol. 2, pp. 12-14.

9 Particularly:

Canon 17A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him.

Canon 18A lawyer shall serve his client with competence and diligence. Rule 18.03A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable.

Rule 18.04A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the clients request for information.

10 Report and Recommendation, p. 11.

11 330 Phil. 678 (1996).

12 Id. at 699.

13 The Rules of Court, which suppletorily applies to the rules of procedure of the Sandiganbayan, prohibits the filing of a

second motion for reconsideration as embodied in Section 2 of Rule 52 which states: "Sec. 2. Second Motion for Reconsideration. No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained."

14 Motion for Reconsideration, rollo, pp. 56-74, Urgent Motion for Leave to File Second Motion for Reconsideration and the

Second Motion for Reconsideration, id. at 80-87, Motion for Extension of Time to File Petition for Review, supra note 7, Petition for Review on Certiorari Ad Cautelam, rollo, pp. 103-122. 15

Sec. 26. Change of attorneys.An attorney may retire at any time from any action or special proceeding, by the written consent of his client filed in court. x x x 16

Orcino v. Gaspar, 344 Phil. 792, 798 (1997). 17

373 Phil. 612 (1999). 18

Id. at 618, citing Santiago v. Fojas, 248 SCRA 68, 73-74. 19

Annex "J" of complainants Position Paper, rollo, vol. 2, p. 110. 20

432 Phil. 840 (2002). 21

432 Phil. 840, 843 (2002). 22

Spouses Rabanal v. Atty. Tugade, 432 Phil. 1064, 1068 (2002), citing Dee v. Court of Appeals, 176 SCRA 651 (1989). 23

Rollo, p. 136 and Vol. 2, id. at 120. 24

Rule 14.01A lawyer shall not decline to represent a person solely on account of the latters race, sex, creed or status of life, or because of his own opinion regarding the guilt of said person. 25

Edquibal v. Ferrer, A.C. No. 5687, 3 February 2005, 450 SCRA 406.

Republic of the Philippines SUPREME COURT

Manila

SECOND DIVISION

G.R. No. 86100-03 January 23, 1990

METROPOLITAN BANK AND TRUST COMPANY, petitioner, vs. THE HONORABLE COURT OF APPEALS and ARTURO ALAFRIZ and ASSOCIATES, respondents.

Bautista, Picazo, Buyco, Tan & Fider for petitioner.

Arturo A. Alafriz & Associates for and in their own behalf.

REGALADO, J.:

This petition for review on certiorari impugns the decision of the Court of Appeals in CA-G.R. Nos. 08265-08268 1affirming the order of Branch 168, Regional Trial Court, National Capital Judicial Region, in Civil Cases Nos. 19123-28, 19136 and 19144, fixing attorney's fees and directing herein petitioner Metropolitan Bank and Trust Company (Metrobank, for brevity), as defendant in said civil cases, to pay its attorneys, herein private respondent Arturo Alafriz and Associates, movant therein, the amount of P936,000.00 as attorney's fees on a quantum meruit basis.

The records show that from March, 1974 to September, 1983, private respondent handled the

above-mentioned civil cases before the then Court of First Instance of Pasig (Branches I, II, VI, X, XIII, XIX, XX AND XXIV) in behalf of petitioner. 2 The civil cases were all for the declaration of nullity of certain deeds of sale, with damages.

The antecedental facts 3 which spawned the filing of said actions are undisputed and are hereinunder set forth as found by the trial court and adopted substantially in the decision of respondent court. A certain Celedonio Javier bought seven (7) parcels of land owned by Eustaquio Alejandro, et al., with a total area of about ten (10) hectares. These properties were thereafter mortgaged by Javier with the petitioner to secure a loan obligation of one Felix Angelo Bautista and/or International Hotel Corporation. The obligors having defaulted, petitioner foreclosed the mortgages after which certificates of sale were issued by the provincial sheriff in its favor as purchaser thereof Subsequently, Alejandro, alleging deceit, fraud and misrepresentation committed against him by Javier in the sale of the parcels of land, brought suits against Javier et al., and included petitioner as defendant therein.

Ads By softonicIt was during the pendency of these suits that these parcels of land were sold by petitioner to its sister corporation,Corporation on March 23, 1983 for the purported price of P600,000.00. On the same day, the properties were resold by the latter to Commercial and Construction Corporation for the purported price of P2,500,000.00. Three months later, or on June 7, 1983, Herby

mortgaged the same properties with Bancode Oro for P9,200,000.00. The lower court found that private respondent, did not have knowledge of these transfers and transactions.

As a consequence of the transfer of said parcels of land toCorporation, petitioner filed an urgent motion for substitution of party on July 28, 1983. Private respondent, on its part, filed on August 16, 1983 a verified motion to enter in the records of the aforesaid civil cases its charging lien, pursuant

to Section 37, Rule 138 of the Rules of Court, equivalent to twenty-five percent (25%) of the actual and current market values of the litigated properties as its attorney's fees. Despite due notice, petitioner failed to appear and oppose said motion, as a result of which the lower court granted the

same and ordered the, Register of Deeds of Rizal to annotate the attorney's liens on the certificates of title of the parcels of land.

Meanwhile, the plaintiffs Alejandro, et al. in the aforesaid civil cases, which had been consolidated and were pending before the Court of Pasig, filed a motion to dismiss their complaints therein, which motion the lower court granted with prejudice in its order dated September 5, 1983. On

December 29, 1983, the same court ordered theRegister of Deeds to annotate the attorney's liens of private respondent on the derivative titles which cancelledCertificates of Title Nos. 453093 to 453099 of the original seven (7) parcels of land hereinbefore adverted to.

On May 28,1984, private respondent filed a motion to fix its attorney's fees, based on quantum meruit, which motion precipitated an exchange of arguments between the parties. On May 30, 1984, petitioner manifested that it had fully paid private respondent; the latter, in turn, countered that the amount of P50,000.00 given by petitioner could not be considered as full payment but merely a cash advance, including the amount of P14,000.00 paid to it on December 15, 1980. It further appears that private respondent attempted to arrange a compromise with petitioner in order to avoid suit, offering a compromise amount of P600,000.00 but the negotiations were unsuccessful.

Finally, on October 15,1984, the court a quo issued the order assailed on appeal before respondent court, granting payment of attorney's fees to private respondent, under the following dispositive portion:

PREMISES CONSIDERED, the motion is hereby granted and the Bank and Trust Company (METROBANK) and Commercial and Construction Corporation 4 are hereby ordered to pay the movant Arturo Alafriz and Associates the amount of P936,000.00 as its proper, just and reasonable attorney's fees in these cases. 5

On appeal, respondent court affirmed the order of the trial court in its decision promulgated on February 11, 1988. A motion for reconsideration, dated March 3, 1988, was filed by petitioner but the same was denied in a resolution promulgated on November 19, 1988, hence the present recourse.

The issues raised and submitted for determination in the present petition may be formulated thus: (1) whether or not private respondent is entitled to the enforcement of its charging lien for payment of its attorney's fees; (2) whether or not a separate civil suit is necessary for the enforcement of such lien and (3) whether or not private respondent is entitled to twenty-five (25%) of the actual and current market values of the litigated properties on aquantum meruit basis.

On the first issue, petitioner avers that private respondent has no enforceable attorney's charging lien in the civil cases before the court below because the dismissal of the complaints therein were not, in the words of Section 37, Rule 138, judgments for the payment of money or executions issued in pursuance of such judgments. 6

We agree with petitioner.

On the matter of attorney's liens Section 37, Rule 138 provides:

. . . He shall also have a lien to the same extent upon all judgments for the payment of money, and executions issued in pursuance of such judgments, which he has secured in a litigation of his client, from and after the time when he shall have caused a statement of his claim of such lien to be entered upon the records of the court rendering such judgment, or issuing such execution, and shall have caused written

notice thereof to be delivered to his client and to the adverse party; and he shall have the same right and power over such judgments and executions as his client would have to enforce his lien and secure the payment of his just fees and disbursements.

Consequent to such provision, a charging lien, to be enforceable as security for the payment of attorney's fees, requires as a condition sine qua non a judgment for money and execution in pursuance of such judgment secured in the main action by the attorney in favor of his client. A lawyer may enforce his right to fees by filing the necessary petition as an incident in the main action in which his services were rendered when something is due his client in the action from which the fee is to be paid. 7

In the case at bar, the civil cases below were dismissed upon the initiative of the plaintiffs "in view of the frill satisfaction of their claims." 8 The dismissal order neither provided for any money judgment nor made any monetary award to any litigant, much less in favor of petitioner who was a defendant therein. This being so, private respondent's supposed charging lien is, under our rule, without any legal basis. It is flawed by the fact that there is nothing to generate it and to which it can attach in the same manner as an ordinary lien arises and attaches to real or personal property.

In point is Morente vs. Firmalino, 9 cited by petitioner in support of its position. In that case, movant-appellant attorney sought the payment of his fees from his client who was the defendant in a complaint for injunction which was dismissed by the trial court after the approval of an agreement entered into by the litigants. This Court held:

. . . The defendant having suffered no actual damage by virtue of the issuance of a preliminary injunction, it follows that no sum can be awarded the defendant for damages. It becomes apparent, too, that no amount having been awarded the defendant, herein appellant's lien could not be enforced. The appellant, could, by appropriate action, collect his fees as attorney.

Private respondent would nevertheless insist that the lien attaches to the "proceeds of a judgment of whatever nature," 10 relying on the case of Bacolod-Murcia Milling Co. Inc. vs. Henares 11 and some American cases holding that the lien attaches to the judgment recovered by an attorney and the proceeds in whatever form they may be. 12

Ads By softonicThe contention is without merit just as its reliance is misplaced. It is true that there are some American cases holding that the lien attaches even to properties in litigation. However, the statutory rules on which they are based and the factual situations involved therein are neither explained nor may it be said that they are of continuing validity as to be applicable in this jurisdiction. It cannot be gainsaid that legal concepts of foreign origin undergo a number of variegations or nuances upon adoption by other jurisdictions, especially those with variant legal systems.

In fact, the same source from which private respondent culled the American cases it cited expressly declares that "in the absence of a statute or of a special agreement providing otherwise, the general rule is that an attorney has no lien on the land of his client, notwithstanding such attorney has, with respect to the land in question, successfully prosecuted a suit to establish the title of his client thereto, recovered title or possession in a suit prosecuted by such client, or defended successfully such client's right and title against an unjust claim or an unwarranted attack," 13 as is the situation in the case at bar. This is an inescapable recognition that a contrary rule obtains in other jurisdictions thereby resulting in doctrinal rulings of converse or modulated import.

To repeat, since in our jurisdiction the applicable rule provides that a charging lien attaches only to judgments for money and executions in pursuance of such judgment, then it must be taken in haec

verba. The language of the law is clear and unequivocal and, therefore, it must be taken to mean exactly what it says, barring any necessity for elaborate interpretation. 14

Notably, the interpretation, literal as it may appear to be, is not without support in Philippine case law despite the dearth of cases on all fours with the present case. In Caina et al. vs. Victoriano, et al., 15 the Court had the occasion to rule that "the lien of respondent is not of a nature which attaches to the property in litigation but is at most a personal claim enforceable by a writ of execution." In Ampil vs. Juliano-Agrava, et al., 16 the Court once again declared that a charging lien "presupposes that the attorney has secured a favorable money judgment for his client . . ." Further, in Director of Lands vs. Ababa, et al., 17 we held that "(a) charging lien under Section 37, Rule 138 of the Revised Rules of Court is limited only to money judgments and not to judgments for the annulment of a contract or for delivery of real property as in the instant case."

Even in the Bacolod-Murcia Milling case, which we previously noted as cited by private respondent, there was an express declaration that "in this jurisdiction, the lien does not attach to the property in litigation."

Indeed, an attorney may acquire a lien for his compensation upon money due his client from the adverse party in any action or proceeding in which the attorney is employed, but such lien does not extend to land which is the subject matter of the litigation. 18 More specifically, an attorney merely defeating recovery against his client as a defendant is not entitled to a lien on the property involved in litigation for fees and the court has no power to fix the fee of an attorney defending the client's title to property already in the client's possession. 19

While a client cannot defeat an attorney's right to his charging lien by dismissing the case, terminating the services of his counsel, waiving his cause or interest in favor of the adverse party or compromising his action, 20this rule cannot find application here as the termination of the cases below was not at the instance of private respondent's client but of the opposing party.

The resolution of the second issue is accordingly subsumed in the preceding discussion which amply demonstrates that private respondent is not entitled to the enforcement of its charging lien.

Nonetheless, it bears mention at this juncture that an enforceable charging lien, duly recorded, is within the jurisdiction of the court trying the main case and this jurisdiction subsists until the lien is settled. 21 There is certainly no valid reason why the trial court cannot pass upon a petition to determine attorney's fees if the rule against multiplicity of suits is to be activated. 22 These decisional rules, however, apply only where the charging lien is valid and enforceable under the rules.

On the last issue, the Court refrains from resolving the same so as not to preempt or interfere with the authority and adjudicative facility of the proper court to hear and decide the controversy in a proper proceeding which may be brought by private respondent.

A petition for recovery of attorney's fees, either as a separate civil suit or as an incident in the main action, has to be prosecuted and the allegations therein established as any other money claim. The persons who are entitled to or who must pay attorney's fees have the right to be heard upon the question of their propriety or amount. 23Hence, the obvious necessity of a hearing is beyond cavil.

Besides, in fixing a reasonable compensation for the services rendered by a lawyer on the basis of quantum meruit, the elements to be considered are generally (1) the importance of the subject matter in controversy, (2) the extent of the services rendered, and (3) the professional standing of the lawyer. 24 These are aside from the several other considerations laid down by this Court in a number

of decisions as pointed out by respondent court. 25 A determination of all these factors would indispensably require nothing less than a full-blown trial where private respondent can adduce evidence to establish its right to lawful attorney's fees and for petitioner to oppose or refute the same.

Nothing in this decision should, however, be misconstrued as imposing an unnecessary burden on private respondent in collecting the fees to which it may rightfully be entitled. But, as in the exercise of any other right conferred by law, the proper legal remedy should be availed of and the procedural rules duly observed to forestall and obviate the possibility of abuse or prejudice, or what may be misunderstood to be such, often to the undeserved discredit of the legal profession.

Law advocacy, it has been stressed, is not capital that yields profits. The returns it births are simple rewards for a job done or service rendered. It is a calling that, unlike mercantile pursuits which enjoy a greater deal of freedom from government interference, is impressed with public interest, for which

it is subject to State regulation. 26

ACCORDINGLY, the instant petition for review is hereby GRANTED and the decision of respondent Court of Appeals of February 11, 1988 affirming the order of the trial court is hereby REVERSED and SET ASIDE, without prejudice to such appropriate proceedings as may be brought by private respondent to establish its right to attorney's fees and the amount thereof.

SO ORDERED.

Melencio-Herrera, Paras, Padilla and Sarmiento, JJ., concur.

Footnotes

1 Penned by Justice Floreliana Castro-Bartolome, with Justices Ricardo L. Pronove, Jr. and Bonifacio A. Cacdac, Jr., concurring. 2 Rollo, 27.

3 Ibid., 27-28.

4 The present petition is concerned only with one-half (1/2) of the disputed judgment of P936.000.00 of P468,000.00, rendered against petitioner. The one-half (1/2) part of said judgment rendered against Herby

Commercial and Construction Corporation became final and executory after it failed to appeal seasonably. 5 Rollo. 28-29. 6 Petition, 10; Rollo, 16.

7 Quirante vs. Hon. Intermediate Appellate Court, G.R. No. 73886, January 31, 1989, citing Lichauco vs. Hon.

Court of Appeals, 63 SCRA 123 (1975') and Otto Gmur, Inc. vs, Revilla, 55 Phil 627 (1936). 8 Original Record, Volume II. 770-771.

9 71 Phil. 49 (1940). 10 Comment, 7; Rollo, 72.

11 107 Phil. 560 (1960).

12 7A C.J.S. 752. 13 7A C.J.S., 756. 14 Cebu Portland Cement Company vs. Municipality of Naga, Cebu, et al., 24 SCRA 708 (1968).

15 105 Phil. 194 (1959). 16 34 SCRA 370 (1970). 17 88 SCRA 513 (1979).

18 Holmes vs. Waymire 84 P 558 (1906). 19 Wessinger vs. Sturkie, 77 F (2d) 751 (1935). 20 Agpalo, Legal Ethics, 1989 ed., 371-372. 21 Bacolod Murcia Milling Co., Inc. vs. Henares, supra.

22 Palanca vs. Pecson, 94 Phil. 419 (1954). 23 Agpalo, op. sit., 846.

24 Section 24 Rule 138, Rules of Court. 25 Respondent Court admits in its decision that, in line with our decisions, the following factors have to be considered, to wit: the amount and character of services rendered, the labor, time and trouble involved, the

nature and importance of the litigation, the responsibility involved, the amount of money or value of property

affected, the skill and experience called for in the legal services, the professional and social standing of counsel, the results secured, and whether or not the fee is absolute or contingent (Rollo, 36).

26 Canlas vs. Hon. Court of Appeals, et al., 164 SCRA 160 (1988), per Sarmiento, J.

Republic of the Philippines SUPREME COURT

Manila

FIRST DIVISION

G.R. No. 120634 December 3, 1999

FLORA DORONILA-TIOSECO, BENJAMIN DORONILA, JR., SALVADOR DORONILLA, and SOLEDAD DUNGCA-DORONILA, petitioners, vs. COURT OF APPEALS, JUDGE WILLIAM M. BAYHON, and RAMON A. GONZALES, respondents.

PARDO, J.:

The case is an appeal via certiorari from the decision of the Court of Appeals, 1 the dispositive portion of which reads:

IN VIEW OF THE FOREGOING, the instant petition for certiorari is hereby DENIED for lack of merit. No pronouncement as to costs.

IT IS SO ORDERED. 2

As a result of dispute among the heirs of the late Doronila and their counsel, Gonzales, over his claim for attorney's fees, on July 3, 1991, the Regional Trial Court, Branch 23, Manila 3 denied the heirs' Motion to Cancel Attorney's Lien and declared Ramon Gonzales entitled to ten per cent (10%) of the shares of the heirs of the late Alfonso J. Doronila, including Salvador Doronila, who did not hire the services of Ramon Gonzales.

In due time, petitioners and respondent Gonzales both appealed the trial court's ruling to the Court of Appeals. 4

After the appeals of both petitioners and respondent Gonzales had been perfected, on November 29, 1993, respondent Gonzales filed with the trial court a motion to annotate attorney's lien, praying that his attorney's lien be annotated on the title of parcels of land of the estate which the heirs of the late Alfonso J. Doronila had inherited.

On December 3, 1993, the administrator of the estate filed with the trial court an opposition to the motion pointing out that an attorney's lien does not extend to land and that the proper remedy for the

misgivings of Atty. Ramon Gonzales that the heirs of the late Alfonso J. Doronila might dispose of their property was to ask for preliminary attachment. 5

On April 22, 1994, the trial court granted respondent's motion to annotate attorney's lien.

On May 20, 1994, petitioners filed with the trial court a motion for reconsideration, pointing out that the opposition of petitioners had also adopted the arguments of the estate administrator. 6

On June 15, 1994, respondent Gonzales filed with the trial court an opposition to the motion. 7

On July 4, 1994, the trial court denied the motion for reconsideration. 8

On August 29, 1994, petitioners filed with the Court of Appeals a petition for certiorari assailing the Orders of April 22, 1994 and July 4, 1994 in Special Proceedings No. 144406 of the Regional Trial Court, Branch 23, Manila, granting the motion to annotate in the titles of land belonging to the

estate the attorney's lien of respondent Gonzales. 9

On March 23, 1995, the Court of Appeals rendered decision denying the petition for certiorari, as set out in the opening paragraph of this decision.

Hence, this petition. 10

On July 26, 1999, we gave due course to the petition. 11

The issues raised are:

1. Whether or not the trial court retained jurisdiction to grant respondent Ramon Gonzales' Motion to Annotate Attorney's Lien on the title of parcels of land of the estate after the perfection of the appeal of both petitioners and respondent from the

order declaring Gonzales entitled to attorney's fees of ten (10%) percent of the shares of the heirs in the estate, and

2. Whether or not an attorney's lien extends to land.

Resolving the issues:

First Issue.

At the time the trial court issued on April 22, 1994 the order granting respondent's motion to annotate

attorney's lien, both petitioners and respondent Gonzales had perfected their appeal from the orders of July 3, 1991 and December 14, 1992, which denied petitioner's motion to cancel attorney's

lien and ruled that respondentGonzales was entitled to ten per cent (10%) of the shares of the heirs who were his clients. Thus, the trial court had no more jurisdiction over the case and had no authority to act on the motion to annotate attorney's lien. 12

The order of April 22, 1994 cannot be justified on the ground that it was for the protection and the preservation of the rights of parties not involved in the appeal. The order practically executed the

claim of respondent Gonzalesthat he is entitled to attorney's fees. In effect, the trial court granted execution pending appeal, without any special reason to do so.

Second Issue.

We have ruled that an attorney's "lien does not extend to land which is the subject matter of the litigation." 13

WHEREFORE, the Court GRANTS the petition and SETS ASIDE the decision of the Court of Appeals in CA-G.R. SP No. 35003. In lieu thereof, the Court ANNULS the orders dated April 22, 1994 and July 4, 1994 of the Regional Trial Court, Branch 23, Manila, in Special Proceedings No. 144406.

No costs.

SO ORDERED.

Puno, Kapunan and Ynares-Santiago, JJ., concur.

Davide, Jr., C.J., in the result.

Footnotes 1 In CA-G.R. SP No. 35003, promulgated on March 23, 1995, Justice Justo P. Torres, Jr., ponente, and Justices Corona

Ibay-Somera and Conrado M. Vasquez, Jr., concurring. 2 Petition, Annex "P", Rollo, pp. 115-121.

3 Then presided over by Judge William M. Bayhon, now retired.

4 Docketed as CA-G.R. CV No. 42773. 5 Petition, Annex "B", Rollo, pp. 24-27. 6 Petition, Annex "I", Rollo. pp. 52-54.

7 Petition, Annex "J", Rollo, pp. 55-58. 8 Petition, Annex "K", Rollo, p. 59. 9 Petition, Annex "L", Rollo, pp. 60-67.

10 Petition filed on July 4, 1995, Rollo, pp. 2-17. 11 Rollo, pp. 199-2