robert victor vs. atty saniata gonzales-alzate

facts:Seares, Jr. alleges that Atty. Gonzales-Aizate was his legal counsel when he ran for the position of Municipal Mayor of Dolores, Abra in the May 2007 elections; that after he lost by a 50-vote margin to Albert Z. Guzman, she filed in his behalf a "Petition Of Protest Ad Cautelam" in the Regional Trial Court (RTC) in Bangued, Abra;

The petition was dismissed because it is fatally defective, time-barred and violation of forum shopping(false statements)

When he ran on may 2010, she was retained as counsel for the opponent party

When he was charged for abuse of authority, oppression and grave misconduct in the Sangguniang Panlalawigan of Abra, she represented the complainant Torqueza

negligently handling his election protest, for prosecuting him, her former client, and for uttering false and hurtful allegations against him

defenses: (a) she was engaged as an attorney

in the May 2010 elections only by Dominic Valera (a candidate for

Municipal Mayor of Bangued, Abra) and by President Aquino, neither of

whom was Seares, Jr.’s political opponent;

(b) Carlito Turqueza used to be

a political ally of Seares, Jr.;

(c) she disclosed to Turqueza her having once

acted as a counsel of Seares, Jr.;

(d) Seares, Jr. did not object to her legal representation of Turqueza; and (e) the 2007 election protest that she handled for Seares, Jr. was unrelated to the administrative complaint that Turqueza brought against Seares, Jr. in 2010.

Issues:

(a) Was Atty. Gonzales-Alzate guilty of professional negligence and

incompetence in her handling of Seares, Jr.’s electoral protest in the RTC?

(b) Did Atty. Gonzales-Alzate violate the prohibition against

representing conflicting interests when she assisted Turqueza in his

administrative case against Seares, Jr., her former client?

Ruling:

For administrative liability under Canon 18 to attach, the negligent act

of the attorney should be gross and inexcusable as to lead to a result that was highly prejudicial to the client’s interest. Accordingly, the Court has imposed administrative sanctions on a grossly negligent attorney for unreasonable failure to file a required pleading, or for unreasonable failure to file an appeal, especially when the failure occurred after the attorney moved for several extensions to file the pleading and offered several excuses for his nonfeasance.The Court has found the attendance of inexcusable negligence when an attorney resorts to a wrong remedy, or belatedly files an appeal, or inordinately delays the filing of a complaint, or fails to attend scheduled court hearings. Gross misconduct on the part of an attorney is determined from the circumstances of the case, the nature of the act done and the motive that induced the attorney to commit the act.

the true cause of the dismissal of Seares, Jr.’s “Petition For Protest Ad Cautelam” was its prematurity in light of the pendency in the Commission on Elections of his “Petition to Suspend Canvass and Proclamation.”

we cannot find Atty. Gonzales-Alzate professionally negligent in respect of the filing and eventual dismissal of the subsequent “Petition for Protest.” The verification and certification against forum shopping attached to the petition contained handwritten superimpositions by Atty. GonzalesAlzate, but such superimpositions were apparently made only to reflect the corrections of the dates of subscription and the notarial document number and docket number for the verification and certification. If that was all there was to the superimpositions, then there was nothing to support the trial judge’s observation that the “cut and paste” method in preparing the verification and certification for non-forum shopping constituted “professional negligence” that proved fatal to her client’s protest.

The charge was immediately unworthy of serious consideration because it was clear from the start that Atty. Gonzales-Alzate did not take advantage of her previous engagement by Seares, Jr. in her legal representation of Turqueza in the latter’s administrative charge against Seares,

Jr. There was no indication whatsoever of her having gained any confidential information during her previous engagement by Seares, Jr. that could be used against Seares, Jr. Her engagement by Seares, Jr. related only to the election protest in 2007, but Turqueza’s complaint involved Seares, Jr.’s supposedly unlawful interference in ousting Turqueza as the president of the Liga ng mga Barangay of Dolores, Abra in 2010. There is no question that both charges were entirely foreign to one another. Moreover, the prohibition against representing conflicting interest further necessitated identity of the parties or interests involved in the previous and present engagements. But such identity was not true here. The adverse party in Seares, Jr.’s election protest in 2007 was Albert Z. Guzman, the newly-elected Municipal Mayor of Dolores, Abra, who was not involved in Turqueza’s administrative complaint against Seares, Jr. In fact, Turqueza was not even a mayoral candidate in Dolores, Abra in the elections held in 2007 and in 2010. The allegation by Seares, Jr. that Atty. Gonzales-Alzate represented his political opponent was not even true because Turqueza was Seares, Jr.’s political ally, as Atty. Gonzales-Alzate stated.

VIVIAN VILLANUEVA, Complainant,

A.C. No. 7657

- versus -

ATTY. CORNELIUS M. GONZALES, Promulgated:Respondent. February 12, 2008

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N

CARPIO, J.:

The Case This is a complaint Vivian Villanueva (complainant) filed against Atty. Cornelius M. Gonzales (respondent) for failure to render legal services and failure to return the money, Transfer Certificate of Title (TCT), and other documents he received from complainant.

The Facts

Sometime in 2000, complainant engaged the services of respondent for the purpose of transferring the title over a piece of property located in Talisay, Cebu. Complainant, as mortgagee, wanted to transfer the title to her name because the mortgagor failed to redeem the property within the redemption period and the sheriff had already issued a sheriff’s definite deed of sale in complainant’s favor. Complainant gave respondent P8,000 as acceptance fee, the property’s TCT, and other pertinent documents.[1] After receiving the money, TCT, and other documents, respondent began to avoid complainant. Whenever complainant went to respondent’s office at BPI Building, Escario St., Cebu City, respondent’s secretary would tell her that respondent could not be disturbed because he was either sleeping or doing something important.[2]

In a letter dated 2 July 2003,[3] complainant told respondent that she had lost her trust and confidence in him and asked him to return the P8,000, TCT, and other documents. Respondent refused to return the money, TCT, and other documents. After some time and after complainant’s daughter confronted him, respondent finally returned the money. However, until now, respondent has not returned the TCT and other documents.[4] Thus, complainant filed a complaint[5] dated 10 September 2003 against respondent before the Integrated Bar of the Philippines (IBP). In an Order[6] dated 7 October 2003, IBP Director for Bar Discipline Rogelio A. Vinluan ordered respondent to submit his answer to the complaint. Respondent did not submit an answer.[7] In an Order[8] dated 21 April 2004, IBP Commissioner for Bar Discipline Rebecca Villanueva-Maala ordered respondent to submit his answer to the complaint, and set the mandatory conference on 2 June 2004. Respondent did not submit an answer or attend the mandatory conference. The Commission on Bar Discipline considered the case submitted for resolution.[9]

The IBP’s Report and Recommendations

In a Report[10] dated 27 October 2006, IBP Commissioner for Bar Discipline Caesar R. Dulay (Commissioner Dulay) found respondent guilty of misconduct and negligent behavior: (1) he failed to perform any legal service to his client, (2) he did not inform his client about the status of the case, (3) he returned the P8,000 acceptance fee without any explanation, and (4) he was indifferent. Commissioner Dulay found that respondent violated Canons 16 and 18 of

the Code of Professional Responsibility and recommended his suspension from the practice of law for one year. In a Resolution[11] dated 31 May 2007, the IBP Board of Governors (IBP Board) adopted and approved the Report dated 27 October 2006 with modification. The IBP Board suspended respondent from the practice of law for six months and ordered him to return to complainant the P2,000, TCT, and the other documents. As provided in Section 12(b), Rule 139-B of the Rules of Court,[12] the IBP Board forwarded the instant case to the Court for final action.

The Court’s Ruling The Court sustains the findings and recommendations of the IBP with modification. Respondent violated Canons 16, 17, and 18, and Rules 16.01, 16.03, 18.03, and 18.04 of the Code of Professional Responsibility.

Respondent Refused to Account for

and Return His Client’s Money Canon 16 states that a lawyer shall hold in trust all moneys of his client that may come into his possession. Rule 16.01 of the Code states that a lawyer shall account for all money received from the client. Rule 16.03 of the Code states that a lawyer shall deliver the funds of his client when due or upon demand. In Meneses v. Macalino,[13] the Court held that “if [a] lawyer does not use the money for the intended purpose, the lawyer must immediately return the money to the client.” In the instant case, respondent demanded P10,000 and received P8,000 as acceptance fee. Since he did not render any legal service, he should have promptly accounted for and returned the money to complainant.[14] He did not. After receiving the money, respondent began to avoid complainant. He asked his secretary to lie to complainant and shoo her off. When complainant demanded for the return of the money after three years of not hearing from respondent, respondent opted to ignore the demand. Respondent only returned the money after complainant’s daughter confronted him. If complainant’s daughter had not persisted, respondent would not have returned the money. Respondent did not offer any explanation as to why he waited for three years to lapse

before returning the money. In Macarilay v. Seriña,[15] the Court held that “[t]he unjustified withholding of funds belonging to the client warrants the imposition of disciplinary action against the lawyer.”  Respondent’s failure to immediately account for and return the money when due and upon demand violated the trust reposed in him, demonstrated his lack of integrity [16] and moral soundness,[17] and warrants the imposition of disciplinary action.[18] It gave rise to the presumption that he converted the money to his own use and constituted a gross violation of professional ethics and a betrayal of public confidence in the legal profession.[19]

Respondent Refuses to Return

His Client’s TCT and Other Documents Canon 16 of the Code of Professional Responsibility states that a lawyer shall hold in trust all properties of his client that may come into his possession. Rule 16.03 of the Code states that a lawyer shall deliver the property of his client when due or upon demand. The TCT and other documents are the properties of complainant. Since respondent did not render any legal service to complainant, he should have returned complainant’s properties to her. However, he refuses without any explanation to return them. Respondent has kept the TCT and other documents in his possession since 2000. He refuses to return them despite receiving a written demand and being confronted by complainant’s daughter. In Vda.   De Enriquez   v.   San   Jose,[20] the Court held that failure to return the documents to the client is reprehensible: “this Court finds reprehensible respondent’s failure to heed the request of his client for the return of the case documents. That respondent gave no reasonable explanation for that failure makes his neglect patent.”

Respondent Failed to Serve His Clientwith Fidelity, Competence, and Diligence

Canon 17 of the Code of Professional Responsibility states that  a lawyer owes fidelity to the cause of his client. Canon 18 of the Code states that “[a] lawyer shall serve his client with competence and diligence.” Rule 18.03 of the Code states that “[a]lawyer shall not neglect a legal  matter  entrusted to him, and his  negligence   in  connection  therewith shall   render  him liable.”

Clearly, respondent did not serve complainant with fidelity, competence, or diligence. He totally neglected complainant’s cause. An attorney-client relationship between respondent and complainant was established when respondent accepted the acceptance fee. Since then, he should have exercised due diligence in furthering his client’s cause and given it his full attention.[21] Respondent did not render any service. Once a lawyer agrees to handle a case, he is bound by the Canons of the Code of Professional Responsibility. In EmilianoCourt   Townhouses   v.   Atty. Dioneda,[22] the Court held that the act of receiving money as acceptance fee for legal services and subsequently failing to render such service is a clear violation of Canons 17 and 18.   

Respondent Did Not Keep His Client Informedof the Status of Her Case and Refused to Respond

to Her Requests for Information Rule 18.04 of the Code of Professional Responsibility states that “[a] lawyer shall keep the client   informed of   the status  of  his  case and shall   respond within a  reasonable  time to the client’s request for information.” Respondent avoided complainant for three years and kept her in the dark. He did not give her any information about the status of her case or respond to her request for information. After giving the money, complainant never heard from respondent again. Complainant went to respondent’s office several times to request for information. Every time, respondent avoided complainant and gave her the run-around. In her affidavit, complainant stated that:

I often visited him in his office to make a [follow up] of the progress of the transfer x x x only [to be] told by his secretary that he [was] sleeping and not to be disturbed or [was] doing something important; x x x For three agonizing years, I x x x never received a feedback from Atty. Gonzales so much so that I was forced [to write him] a letter which up to present remain[s] unanswered[.][23] (Emphasis ours)

Respondent unjustifiably denied complainant of her right to be fully informed of the status of her case, and disregarded his duties as a lawyer.[24]

Respondent Did Not File an Answer orAttend the Mandatory Hearing Before the IBP

Respondent’s repeated failure to file an answer to the complaint and to appear at the 2 June 2004 mandatory conference aggravate his misconduct. These demonstrate his high degree of irresponsibility[25] and lack of respect for the IBP and its proceedings.[26] His attitude stains the nobility of the legal profession.[27]

On the Appropriate Penalty

The appropriate penalty on an errant lawyer depends on the exercise of sound judicial discretion based on the surrounding facts.[28] The Court finds the recommended penalty inadequate. In Rollon,[29] the Court suspended a lawyer from the practice of law for two years for failing to render any legal service after receiving money and for failing to return the money and documents he received. In that case, the Court held that:

The circumstances of this case indubitably show that after receiving the amount of P8,000 as x x x partial service fee, respondent failed to render any legal service in relation to the case of complainant. His continuous inaction despite repeated follow-ups from her reveals his cavalier attitude and appalling indifference toward his client’s cause, in brazen disregard of his duties as a lawyer. Not only that. Despite her repeated demands, he also unjustifiably failed to return to her the files of the case that had been entrusted to him. To top it all, he kept the money she had likewise entrusted to him.[30]

In Small,[31] the Court suspended a lawyer from the practice of law for two years for failing to render any legal service after receiving money, failing to inform his client of the status of the case, and failing to promptly account for and return the money he received. The Court notes that respondent does not have to return any amount to complainant. Complainant gave respondent onlyP8,000, not P10,000, and respondent has returned the total amount he received. As stated in complainant’s affidavit:

For the legal service[s] sought, Atty. Gonzales asked an acceptance fee of P10,000 to which I gave him P8,000 together with the pertinent [mortgage] documents needed by him for the transfer including the Transfer Certificate of Title; x x x x [D]ue to the persistence of my daughter, Lurina Villanueva, Atty. Gonzales returned the acceptance fee of P8,000 on August 5, 2003but never returned the documents mentioned in my letter.[32] (Emphasis ours)      

Lawyers are expected to always live up to the standards embodied in the Code of Professional Responsibility because an attorney-client relationship is highly fiduciary in nature and demands utmost fidelity and good faith. Those who violate the Code must be disciplined.[33] Respondent failed to live up to these standards. WHEREFORE, the Court finds respondent Atty. Cornelius M. Gonzales GUILTY of violating Canons 16, 17, and 18, and Rules 16.01, 16.03, 18.03, and 18.04 of the Code of Professional Responsibility. Accordingly, the Court SUSPENDS him from the practice of law for two years effective upon finality of this Decision, ORDERS him to RETURN the TCT and all other documents to complainant within 15 days from notice of this Decision, and WARNS him that a repetition of the same or similar offense, including the failure to return the TCT and all other documents as required herein, shall be dealt with more severely. Let copies of this Decision be furnished the Office of the Bar Confidant, to be appended to respondent’s personal record as attorney. Likewise, copies shall be furnished to the Integrated Bar of the Philippines and all courts in the country for their information and guidance. SO ORDERED

THIRD DIVISION

[A.C. No. 5687. February 03, 2005]

FELIX E. EDQUIBAL, complainant, vs. ATTY. ROBERTO FERRER, JR., respondent.

R E S O L U T I O N

SANDOVAL-GUTIERREZ, J.:

In a letter-complaint[1] under oath dated January 8, 2002, Felix E. Edquibal, complainant, charged Atty. Roberto Ferrer, Jr., respondent, with professional misconduct and neglect of duty.

Complainant alleged that he engaged the services of respondent to assist his mother Ursula Edquibal in cases she filed against his sister Delia Edquibal-Garcia involving a certain real property in Masinloc, Zambales. His mother obtained favorable judgments in four (4) out of the five (5) cases handled by respondent. However, in Civil Case No. RTC-1495-I (filed with the Regional Trial Court, Branch 70, Iba, Zambales), the trial judge rendered a decision adverse to his mother. Respondent then advised complainant to appeal to the Court of Appeals and that the cost involved is P4,000.00. When complainant informed respondent that he does not have enough money, the latter said P2,000.00 would be sufficient for the moment. After receiving the money from complainant, respondent told him just to wait for the result. The appeal was docketed as CA-G.R. CV No. 65019.

When complainant failed to hear from respondent in January 2001, he went to the Court of Appeals to follow-up the appealed case. He then learned that the appeal was dismissed for failure of the appellant to file the required appellant’s brief.

In his comment[2] dated June 2, 2003, respondent denied that he filed an appeal, on behalf of complainant’s mother, with the Court of Appeals or received P2,000.00. What happened was that complainant told him that there is someone in the Court of Appeals who can help him regarding his appeal. Respondent claimed that he “did his best” for complainant’s mother and did not even ask for attorney’s fees.

On July 30, 2003, we referred the complaint to the Integrated Bar of the Philippines (IBP) for investigation, report, and recommendation.

In his Report and Recommendation dated March 19, 2004, Atty. Leland R. Villadolid, IBP Commissioner, made the following findings:

“It is clear from the records of this case that per the records of CA G-R. CV No. 65019, Respondent is the counsel of record of defendants-appellants therein (including Complainant’s mother). In the Resolution dated 31 August 000, it was explicitly noted that ‘(N)otice sent to counsel for defendants-appellants requiring him to file appellant’s brief within forty-five (45) days from receipt thereof was received by him on March 16, 2000.’ If it is true that Respondent never agreed to handle the appeal, upon receipt of said notice, Respondent should have immediately manifested to the Court of Appeals that he is not handling the appeal on behalf of said defendants-appellants. Thus, Section 2, Rule 44 of the Rules of Civil Procedure clearly states that ‘[T]he counsel and guardians ad litem of the parties in the court of origin shall be respectively considered as their counsel and guardians ad litem in the Court of Appeals.’ By failing to do so, the Court of Appeals had every reason to assume that he was likewise representing defendants-appellants in the appeal. Accordingly, his failure to timely file the required appellants’ brief resulted in the dismissal of the appeal.

The facts of this case clearly show that Respondent violated Canon 17 and 18 of the Code of Professional Responsibility (‘CPR’).

Undoubtedly, Respondent’s failure to exercise due diligence in protecting and attending to the interest of Complainant (Complainant’s mother) caused the latter material prejudice. It should be remembered that the moment a lawyer takes a client’s cause, he covenants that he will exert all effort for its prosecution until its final conclusion. A lawyer who fails to exercise due diligence or abandons his client’s cause makes him unworthy of the trust reposed in him by the latter. x x x”

Atty. Villadolid recommended to the IBP Board of Governors that respondent be reprimanded “for failure to act with reasonable diligence in representing the cause of complainant;” and that respondent be directed to “return the amount of P2,000.00 as and by way of restitution to complainant.”

In its Resolution No. XVI-2004-383 dated July 30, 2004, the IBP Board of Governors adopted and approved the Report and Recommendation of Atty. Villadolid, thus:

“RESOLVED TO ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of the Resolution as Annex “A”; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering the respondent’s failure to act with reasonable diligence in representing the cause of complainant, Atty. Roberto Ferrer, Jr., is hereby REPRIMANDED and Ordered to Return the amount of P2,000,00 by way of Restitution to complainant.”[3]

We sustain the Resolution of the IBP Board of Governors except as to the penalty recommended.

Records show that respondent was the counsel of record for the appellants, complainant’s mother and other relatives in CA-G.R. CV No. 65019. The Resolution of the Court of Appeals dated August 31, 2000 clearly states that the “notice sent to counsel for defendants-appellants requiring him to file appellant’s brief within forty-five (45) days from receipt thereof, was received by him on March 16, 2000.”[4] However, respondent failed to file the appellants’ brief despite receipt of such notice.

Section 2, Rule 44 of the 1997 Rules of Civil Procedure, as amended, provides:

SEC. 2. Counsel and guardians. – The counsel and guardians ad litem of the parties in the court of origin shall be respectively considered as their counsel and guardians ad litem in the Court of Appeals. When others appear or are appointed, notice thereof shall be served immediately on the adverse party and filed with the court.

If it were true that respondent did not agree to represent the appellants in CA-G.R. CV No. 65019, why did he not file with the Court of Appeals a motion to withdraw as their counsel? Obviously, his negligence, which resulted in the dismissal of the appeal, caused prejudice to his

clients. Likewise, respondent’s failure to inform complainant of the status of his mother’s appeal is inexcusable.

It bears stressing that the lawyer-client relationship is one of trust and confidence. Thus, there is a need for the client to be adequately and fully informed about the developments in his case.[5] A client should never be left groping in the dark, for to do so would be to destroy the trust, faith, and confidence reposed in the lawyer so retained in particular and the legal profession in general.

Respondent violated Canons 17 and 18 of the Code of Professional Responsibility, which provide:

“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.

Canon 18 – A 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.

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

Diligence is “the attention and care required of a person in a given situation and is the opposite of negligence.”[6] A lawyer serves his client with diligence by adopting that norm of practice expected of men of good intentions. He thus owes entire devotion to the interest of his client, warm zeal in the defense and maintenance of his rights, and the exertion of his utmost learning, skill, and ability to ensure that nothing shall be taken or withheld from him, save by the rules of law legally applied.[7] It is axiomatic in the practice of law that the price of success is eternal diligence to the cause of the client.

The practice of law does not require extraordinary diligence (exactissima diligentia) or that “extreme measure of care and caution which persons of unusual prudence and circumspection use for securing and preserving their rights.”[8] All that is required is ordinary diligence (diligentia) or that degree of vigilance expected of a bonus pater familias. Yet, even by this lesser standard, respondent’s failure to attend to his client’s appeal is clearly wanting.

In People v.  Cawili,[9] we held that the failure of counsel to submit the brief within the reglementary period is an offense that entails disciplinary action. People   v.   Villar,   Jr.[10] characterized a lawyer’s failure to file a brief for his client as inexcusable neglect. In Blaza v. Court of Appeals,[11] we held that the filing of a brief within the period set by law is a duty not only to the client, but also to the court. Perla   Compania   de   Seguros,   Inc.   v. Saquilaban[12] reiterated Ford   v.  Daitol[13] and In   re:   Santiago  F.  Marcos[14] in holding that an attorney’s failure to file brief for his client constitutes inexcusable negligence.

In cases involving a lawyer’s failure to file a brief or other pleading before an appellate court, we did not hesitate to suspend the erring member of the Bar from the practice of law for three months,[15] six months,[16] or even disbarment in severely aggravated cases.[17]

Accordingly and considering the circumstances of this case, we find a need to scale the recommended penalty upward. Here, we are convinced that respondent deserves the penalty of suspension for three (3) months.

WHEREFORE, ATTY. ROBERTO FERRER, JR. is hereby found guilty of professional misconduct and neglect of duty. He is SUSPENDED from the practice of law for three (3) months with a WARNING that a repetition of the same or a similar offense shall be dealt with more severely. He is further DIRECTED to return immediately to the complainant the amount of P2,000.00.

Let copies of this Decision be furnished the Bar Confidant, the Integrated Bar of the Philippines and all courts throughout the country.

SO ORDERED.

FERNANDO MARTIN O. PENA, A.C. No. 7298 Complainant, [Formerly CBD Case No. 05-1565] Present: - versus - QUISUMBING, J.,

                                       Chairperson, CARPIO, CARPIO MORALES, TINGA,  and ATTY. LOLITO G. APARICIO, VELASCO, JR., JJ.           Respondent. Promulgated: June 25, 2007 x----------------------------------------------------------------------------x

R E S O L U T I O N

TINGA, J.:

In this administrative complaint, a lawyer is charged with violation of Rule 19.01 of Canon 19 of the Code of Professional Responsibility for writing a demand letter the contents of

which threatened complainant with the filing of criminal cases for tax evasion and falsification of documents.

Atty. Lolito G. Aparicio (respondent) appeared as legal counsel for Grace C. Hufana in an

illegal dismissal case before the National Labor Relations Commission (NLRC). Sometime in August 2005, complainant Fernando Martin O. Pena, as President of MOF Company, Inc. (Subic), received a notice from the Conciliation and Mediation Center of the NLRC for a mediation/conciliation conference. In the conference, respondent, in behalf of his client, submitted a claim for separation pay arising from her alleged illegal dismissal. Complainant rejected the claim as being baseless. Complainant thereafter sent notices to Hufana for the latter to explain her absences and to return to work. In reply to this return to work notice, respondent wrote a letter to complainant reiterating his client’s claim for separation pay. The letter also contained the following threat to the company:

BUT if these are not paid on August 10, 2005, we will be constrained to file and claim bigger amounts including moral damages to the tune of millions under established precedence of cases and laws. In addition to other multiple charges like:

1. Tax evasion by the millions of pesos of income not reported to the government.

2. Criminal Charges for Tax Evasion3. Criminal Charges for Falsification of Documents4. Cancellation of business license to operate due to violations of laws.

These are reserved for future actions in case of failure to pay the above amounts as settlements in the National Labor Relations Commission (NLRC).[1]

Believing that the contents of the letter deviated from accepted ethical standards,

complainant filed an administrative complaint[2] with the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP). Respondent filed an Answer with Impleader (Motion to Dismiss and Counterclaims)[3] claiming that Atty. Emmanuel A. Jocson, complainant’s legal counsel, also played an important part in imputing the malicious, defamatory, and fabricated

charges against him. Respondent also pointed out that the complaint had no certification against forum shopping and was motivated only to confuse the issues then pending before the Labor Arbiter. By way of counterclaim, respondent asked for damages and for the disbarment of Atty. Jocson. Respondent also asked the IBP to endorse the prosecution of Atty. Jocson for Usurpation of Public Functions[4] and for violation of the Notarial Law.[5]

A mandatory conference was held on 6 December 2005 but respondent failed to

appear.[6] Both parties were thereafter required to submit their position papers. The Report and Recommendation[7] of Investigating Commissioner Milagros V. San Juan

found that complainant, failed to file his position paper and to comply with Administrative Circular No. 04-94 requiring a certificate against forum shopping and, accordingly, recommended the dismissal of the complaint against respondent. On 26 May 2006, the IBP Board of Governors adopted and approved the Report and Recommendation of the Investigating Commissioner.[8] On 10 July 2006, the IBP Commission on Bar Discipline transmitted to the Supreme Court the notice of said Resolution and the records of the case.[9] Thereafter, on 18 August 2006, respondent filed with the IBP a Motion for Reconsideration (for Modification of Decision)[10]reiterating his claim of damages against complainant in the amount of four hundred million pesos (P400,000,000.00), or its equivalent in dollars, for filing the “false, malicious, defamers [sic], fraudulent, illegal fabricators [sic], malevolent[,] oppressive, evasive filing [of] a groundless and false suit.”[11]

Complainant thereafter filed this Petition for Review (of the Resolution of the IBP

Commission on Bar Discipline)[12] alleging that he personally submitted and filed with the IBP his position paper, after serving a copy thereof on respondent by registered mail. He further alleges that he was deprived of his right to due process when the IBP dismissed his complaint without considering his position paper and without ruling on the merits thereof.

Complainant accordingly prays for the reversal and setting aside of the 26 May 2006

Resolution[13] of the IBP Board of Governors and the remand of the case to the IBP Commission on Bar Discipline for proper adjudication and disposition on the merits.

Based on the records, there is truth to complainant’s assertion that he filed his position

paper on 21 December 2005, after serving a copy of the same to respondent. The IBP stamp on the front page of said document shows that it was received by the IBP on 21 December 2005.

The registry receipt attached to the same document also shows that it was sent by registered mail to respondent on the same date. [14]

Complainant, however, omitted to offer any explanation in his petition before this Court

for his failure to attach a certification against forum shopping in his complaint against respondent.

The requirement of a certification against forum shopping was originally required by

Circular No. 28-91, dated 8 February 1994, issued by this Court for every petition filed with the Court or the Court of Appeals. Administrative Circular No. 04-94, made effective on 1 April 1994, expanded the certification requirement to include cases filed in courts and quasi-judicial agencies below this Court and the Court of Appeals. Ultimately, the Court adopted paragraphs (1) and (2) of Administrative Circular No. 04-94 to become Section 5, Rule 7 of the

1997 Rules of Civil Procedure.[15] Said rule states that a violation thereof would constitute contempt of court and be cause for the summary dismissal of both petitions without prejudice to the taking of appropriate action against the counsel of the party concerned.[16]

The Investigating Commissioner and the IBP Board of Governors took against

complainant his failure to attach the certification against forum shopping to his complaint and consequently dismissed his complaint. This Court, however, disagrees and, accordingly, grants the petition. However, a remand of the case to the IBP would unduly prolong its adjudication.

The Court’s determination is anchored on the sui generis nature of disbarment

proceedings, the reasons for the certification against forum shopping requirement, complainant’s subsequent compliance with the requirement, and the merit of complainant’s complaint against respondent.

The Court, in the case of In   re Almacen,[17] dwelt on the sui generis character of

disciplinary proceedings against lawyers, thus: Disciplinary proceedings against lawyers are sui generis. Neither purely civil nor purely criminal, they do not involve a trial of an action or a suit, but is rather an investigation by the Court into the conduct of one of its officers. Not being intended to inflict punishment, it is in no sense a criminal prosecution. Accordingly, there is neither a plaintiff nor a prosecutor therein. It may be initiated by the Court motu   proprio. Public interest is its primary objective, and the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges as such. Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to account for his actuations as an officer of the Court with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice by purging the profession of members who by their misconduct have proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney. In such posture, there can thus be no occasion to speak of a complainant or a prosecutor.[18] [Emphasis supplied] In view of the nature of disbarment proceedings, the certification against forum

shopping to be attached to the complaint, if one is required at all in such proceedings, must refer to another administrative case for disciplinary proceedings against the same respondent, because such other proceedings or “action” is one that necessarily involves “the same issues”

as the one posed in the disbarment complaint to which the certification is supposedly to be attached.

Further, the rationale for the requirement of a certification against forum shopping is to

apprise the Court of the pendency of another action or claim involving the same issues in another court, tribunal or quasi-judicial agency, and thereby precisely avoid the forum shopping situation. Filing multiple petitions or complaints constitutes abuse of court processes,[19] which tends to degrade the administration of justice, wreaks havoc upon orderly judicial procedure, and adds to the congestion of the heavily burdened dockets of the courts. [20] Furthermore, the rule proscribing forum shopping seeks to promote candor and transparency among lawyers and their clients in the pursuit of their cases before the courts to promote the orderly administration of justice, prevent undue inconvenience upon the other party, and save the precious time of the courts. It also aims to prevent the embarrassing situation of two or more courts or agencies rendering conflicting resolutions or decisions upon the same issue.[21]

It is in this light that we take a further look at the necessity of attaching a certification

against forum shopping to a disbarment complaint. It would seem that the scenario sought to be avoided, i.e., the filing of multiple suits and the possibility of conflicting decisions, rarely happens in disbarment complaints considering that said proceedings are either “taken by the Supreme Court motuproprio, or by the Integrated Bar of the Philippines (IBP) upon the verified complaint of any person.”[22] Thus, if the complainant in a disbarment case fails to attach a certification against forum shopping, the pendency of another disciplinary action against the same respondent may still be ascertained with ease. We have previously held that the rule requiring a certification of forum shopping to accompany every initiatory pleading, “should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective or the goal of all rules of procedure—which is to achieve substantial justice as expeditiously as possible.”[23]

At any rate, complainant’s subsequent compliance with the requirement cured the

supposed defect in the original complaint. The records show that complainant submitted the required certification against forum shopping on 6 December 2006 when he filed his Comment/Opposition to respondent’s Motion to Dismiss the present petition.

Finally, the intrinsic merit of complainant’s case against respondent justifies the grant of

the present petition. Respondent does not deny authorship of the threatening letter to complainant, even spiritedly contesting the charge that the letter is unethical.

Canon 19 of the Code of Professional Responsibility states that “a lawyer shall represent

his client with zeal within the bounds of the law,” reminding legal practitioners that a lawyer’s duty is not to his client but to the administration of justice; to that end, his client’s success is wholly subordinate; and his conduct ought to and must always be scrupulously observant of law and ethics.[24]In particular, Rule 19.01 commands that a “lawyer shall employ only fair and honest means to attain the lawful objectives of his client and shall not present, participate in presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any case or proceeding.” Under this Rule, a lawyer should not file or threaten to file any unfounded or baseless criminal case or cases against the adversaries of his client designed to secure a leverage to compel the adversaries to yield or withdraw their own cases against the lawyer’s client.[25]

In the case at bar, respondent did exactly what Canon 19 and its Rule proscribe. Through

his letter, he threatened complainant that should the latter fail to pay the amounts they propose as settlement, he would file and claim bigger amounts including moral damages, as well as multiple charges such as tax evasion, falsification of documents, and cancellation of business license to operate due to violations of laws. The threats are not only unethical for violating Canon 19, but they also amount to blackmail.

Blackmail is “the extortion of money from a person by threats of accusation or exposure

or opposition in the public prints,…obtaining of value from a person as a condition of refraining from making an accusation against him, or disclosing some secret calculated to operate to his prejudice.” In common parlance and in general acceptation, it is equivalent to and synonymous with extortion, the exaction of money either for the performance of a duty, the prevention of an injury, or the exercise of an influence. Not infrequently, it is extorted by threats, or by operating on the fears or the credulity, or by promises to conceal or offers to expose the weaknesses, the follies, or the crime of the victim.[26]

In Sps. Boyboy v.   Atty. Yabut,   Jr.,[27] we held that “[a]n accusation for blackmail and

extortion is a very serious one which, if properly substantiated, would entail not only respondent’s disbarment from the practice of law, but also a possible criminal prosecution.”[28] While the respondent in Boyboy was exonerated for lack of evidence, the same may not be said of respondent in the present case for he admits to writing the offensive letter.

In fact, respondent does not find anything wrong with what he wrote, dismissing the same as merely an act of pointing out massive violations of the law by the other party, and, with boldness, asserting that “a lawyer is under obligation to tell the truth, to report to the government commission of offenses punishable by the State.”[29] He further asserts that the writing of demand letters is a standard practice and tradition and that our laws allow and encourage the settlement of disputes.

Respondent’s assertions, however, are misleading, for it is quite obvious that respondent’s threat to file the cases against complainant was designed to secure some leverage to compel the latter to give in to his client’s demands. It was not respondent’s intention to point out complainant’s violations of the law as he so gallantly claims. Far from it, the letter even contains an implied promise to “keep silent” about the said violations if payment of the claim is made on the date indicated.

Indeed, the writing of demand letters is a standard practice and tradition in this

jurisdiction. It is usually done by a lawyer pursuant to the principal-agent relationship that he has with his client, the principal. Thus, in the performance of his role as agent, the lawyer may be tasked to enforce his client’s claim and to take all the steps necessary to collect it, such as writing a letter of demand requiring payment within a specified period. However, the letter in this case contains more than just a simple demand to pay. It even contains a threat to file retaliatory charges against complainant which have nothing to do with his client’s claim for separation pay. The letter was obviously designed to secure leverage to compel complainant to yield to their claims. Indeed, letters of this nature are definitely proscribed by the Code of Professional Responsibility.

Respondent cannot claim the sanctuary provided by the privileged communication rule

under which a private communication executed in the performance of a legal duty is not actionable. The privileged nature of the letter was removed when respondent used it to blackmail complainant and extort from the latter compliance with the demands of his client.

However, while the writing of the letter went beyond ethical standards, we hold that disbarment is too severe a penalty to be imposed on respondent, considering that he wrote the same out of his overzealousness to protect his client’s interests. Accordingly, the more appropriate penalty is reprimand.

WHEREFORE, premises considered, the petition is granted. The 26 May 2006 Resolution of the IBP Board of Governors is hereby REVERSED and SET ASIDE. Respondent Atty. Lolito G. Aparicio is hereby found liable for violation of Rule 19.01 of Canon 19 of the Code of Professional Responsibility, and is accordingly meted out the penalty of REPRIMAND, with the STERN WARNING that a repetition of the same or similar act will be dealt with more severely.

SO ORDERED