legal ethics cases canon 21-22

7/22/2019 legal ethics cases canon 21-22

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Republic of the Philippines

SUPREME COURT

Manila

SECOND DIVISION

A.C. No. 5108 May 26, 2005

ROSA F. MERCADO, complainant,

vs.

ATTY. JULITO D. VITRIOLO, respondent.

D E C I S I O N

PUNO, J.:

Rosa F. Mercado filed the instant administrative complaint against Atty.

Julito D. Vitriolo, seeking his disbarment from the practice of law. The

complainant alleged that respondent maliciously instituted a criminal case

for falsification of public document against her, a former client, based on

confidential information gained from their attorney-client relationship.

Let us first hearken to the facts.

Complainant is a Senior Education Program Specialist of the Standards

Development Division, Office of Programs and Standards while respondent

is a Deputy Executive Director IV of the Commission on Higher Education

(CHED).1

Complainant's husband filed Civil Case No. 40537 entitled "Ruben G.

Mercado v. Rosa C. Francisco," for annulment of their marriage with the

Regional Trial Court (RTC) of Pasig City. This annulment case had been

dismissed by the trial court, and the dismissal became final and executoryon July 15, 1992.2

In August 1992, Atty. Anastacio P. de Leon, counsel of complainant, died. On

February 7, 1994, respondent entered his appearance before the trial court

as collaborating counsel for complainant.3

On March 16, 1994, respondent filed his Notice of Substitution of Counsel,4

informing the RTC of Pasig City that he has been appointed as counsel for

the complainant, in substitution of Atty. de Leon.

It also appears that on April 13, 1999, respondent filed a criminal action

against complainant before the Office of the City Prosecutor, Pasig City,

entitled "Atty. Julito Vitriolo, et al. v. Rose Dela Cruz F. Mercado," and

docketed as I.S. No. PSG 99-9823, for violation of Articles 171 and 172

(falsification of public document) of the Revised Penal Code.5 Respondent

alleged that complainant made false entries in the Certificates of Live Birth

of her children, Angelica and Katelyn Anne. More specifically, complainant

allegedly indicated in said Certificates of Live Birth that she is married to a

certain Ferdinand Fernandez, and that their marriage was solemnized onApril 11, 1979, when in truth, she is legally married to Ruben G. Mercado

and their marriage took place on April 11, 1978.

Complainant denied the accusations of respondent against her. She denied

using any other name than "Rosa F. Mercado." She also insisted that she has

gotten married only once, on April 11, 1978, to Ruben G. Mercado.

In addition, complainant Mercado cited other charges against respondent

that are pending before or decided upon by other tribunals(1) libel suit

before the Office of the City Prosecutor, Pasig City;6 (2) administrative case

for dishonesty, grave misconduct, conduct prejudicial to the best interest of

the service, pursuit of private business, vocation or profession without the

permission required by Civil Service rules and regulations, and violations of

the "Anti-Graft and Corrupt Practices Act," before the then Presidential

Commission Against Graft and Corruption;7 (3) complaint for dishonesty,

grave misconduct, and conduct prejudicial to the best interest of the service

before the Office of the Ombudsman, where he was found guilty of

misconduct and meted out the penalty of one month suspension without

pay;8 and, (4) the Information for violation of Section 7(b)(2) of Republic Act


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No. 6713, as amended, otherwise known as the Code of Conduct and Ethical

Standards for Public Officials and Employees before the Sandiganbayan.9

Complainant Mercado alleged that said criminal complaint for falsification

of public document (I.S. No. PSG 99-9823) disclosed confidential facts and

information relating to the civil case for annulment, then handled by

respondent Vitriolo as her counsel. This prompted complainant Mercado to

bring this action against respondent. She claims that, in filing the criminal

case for falsification, respondent is guilty of breaching their privileged and

confidential lawyer-client relationship, and should be disbarred.

Respondent filed his Comment/Motion to Dismiss on November 3, 1999

where he alleged that the complaint for disbarment was all hearsay,

misleading and irrelevant because all the allegations leveled against him are

subject of separate fact-finding bodies. Respondent claimed that the

pending cases against him are not grounds for disbarment, and that he is

presumed to be innocent until proven otherwise.10 He also states that thedecision of the Ombudsman finding him guilty of misconduct and imposing

upon him the penalty of suspension for one month without pay is on appeal

with the Court of Appeals. He adds that he was found guilty, only of simple

misconduct, which he committed in good faith.11

In addition, respondent maintains that his filing of the criminal complaint

for falsification of public documents against complainant does not violate

the rule on privileged communication between attorney and client because

the bases of the falsification case are two certificates of live birth which arepublic documents and in no way connected with the confidence taken

during the engagement of respondent as counsel. According to respondent,

the complainant confided to him as then counsel only matters of facts

relating to the annulment case. Nothing was said about the alleged

falsification of the entries in the birth certificates of her two daughters. The

birth certificates are filed in the Records Division of CHED and are accessible

to anyone.12

In a Resolution dated February 9, 2000, this Court referred the

administrative case to the Integrated Bar of the Philippines (IBP) for

investigation, report and recommendation.13

The IBP Commission on Bar Discipline set two dates for hearing but

complainant failed to appear in both. Investigating Commissioner Rosalina

R. Datiles thus granted respondent's motion to file his memorandum, and

the case was submitted for resolution based on the pleadings submitted by

the parties.14

On June 21, 2003, the IBP Board of Governors approved the report of

investigating commissioner Datiles, finding the respondent guilty of

violating the rule on privileged communication between attorney and client,

and recommending his suspension from the practice of law for one (1) year.

On August 6, 2003, complainant, upon receiving a copy of the IBP report

and recommendation, wrote Chief Justice Hilario Davide, Jr., a letter ofdesistance. She stated that after the passage of so many years, she has now

found forgiveness for those who have wronged her.

At the outset, we stress that we shall not inquire into the merits of the

various criminal and administrative cases filed against respondent. It is the

duty of the tribunals where these cases are pending to determine the guilt

or innocence of the respondent.

We also emphasize that the Court is not bound by any withdrawal of the

complaint or desistance by the complainant. The letter of complainant tothe Chief Justice imparting forgiveness upon respondent is inconsequential

in disbarment proceedings.

We now resolve whether respondent violated the rule on privileged

communication between attorney and client when he filed a criminal case

for falsification of public document against his former client.

A brief discussion of the nature of the relationship between attorney and

client and the rule on attorney-client privilege that is designed to protect

such relation is in order.


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In engaging the services of an attorney, the client reposes on him special

powers of trust and confidence. Their relationship is strictly personal and

highly confidential and fiduciary. The relation is of such delicate, exacting

and confidential nature that is required by necessity and public interest.15

Only by such confidentiality and protection will a person be encouraged to

repose his confidence in an attorney. The hypothesis is that abstinence from

seeking legal advice in a good cause is an evil which is fatal to theadministration of justice.16 Thus, the preservation and protection of that

relation will encourage a client to entrust his legal problems to an attorney,

which is of paramount importance to the administration of justice.17 One

rule adopted to serve this purpose is the attorney-client privilege: an

attorney is to keep inviolate his client's secrets or confidence and not to

abuse them.18 Thus, the duty of a lawyer to preserve his client's secrets and

confidence outlasts the termination of the attorney-client relationship,19

and continues even after the client's death.20 It is the glory of the legal

profession that its fidelity to its client can be depended on, and that a manmay safely go to a lawyer and converse with him upon his rights or

supposed rights in any litigation with absolute assurance that the lawyer's

tongue is tied from ever disclosing it.21 With full disclosure of the facts of

the case by the client to his attorney, adequate legal representation will

result in the ascertainment and enforcement of rights or the prosecution or

defense of the client's cause.

Now, we go to the rule on attorney-client privilege. Dean Wigmore cites the

factors essential to establish the existence of the privilege, viz:

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

adviser in his capacity as such, (3) the communications relating to that

purpose, (4) made in confidence (5) by the client, (6) are at his instance

permanently protected (7) from disclosure by himself or by the legal

advisor, (8) except the protection be waived.22

In fine, the factors are as follows:

(1) There exists an attorney-client relationship, or a prospective attorney-

client relationship, and it is by reason of this relationship that the client

made the communication.

Matters disclosed by a prospective client to a lawyer are protected by the

rule on privileged communication even if the prospective client does not

thereafter retain the lawyer or the latter declines the employment.23 The

reason for this is to make the prospective client free to discuss whatever he

wishes with the lawyer without fear that what he tells the lawyer will be

divulged or used against him, and for the lawyer to be equally free to obtain

information from the prospective client.24

On the other hand, a communication from a (prospective) client to a lawyer

for some purpose other than on account of the (prospective) attorney-client

relation is not privileged. Instructive is the case of Pfleider v. Palanca,25

where the client and his wife leased to their attorney a 1,328-hectare

agricultural land for a period of ten years. In their contract, the partiesagreed, among others, that a specified portion of the lease rentals would be

paid to the client-lessors, and the remainder would be delivered by counsel-

lessee to client's listed creditors. The client alleged that the list of creditors

which he had "confidentially" supplied counsel for the purpose of carrying

out the terms of payment contained in the lease contract was disclosed by

counsel, in violation of their lawyer-client relation, to parties whose

interests are adverse to those of the client. As the client himself, however,

states, in the execution of the terms of the aforesaid lease contract

between the parties, he furnished counsel with the "confidential" list of hiscreditors. We ruled that this indicates that client delivered the list of his

creditors to counsel not because of the professional relation then existing

between them, but on account of the lease agreement. We then held that a

violation of the confidence that accompanied the delivery of that list would

partake more of a private and civil wrong than of a breach of the fidelity

owing from a lawyer to his client.

(2) The client made the communication in confidence.


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The mere relation of attorney and client does not raise a presumption of

confidentiality.26 The client must intend the communication to be

confidential.27

A confidential communication refers to information transmitted by

voluntary act of disclosure between attorney and client in confidence and

by means which, so far as the client is aware, discloses the information to

no third person other than one reasonably necessary for the transmission of

the information or the accomplishment of the purpose for which it was

given.28

Our jurisprudence on the matter rests on quiescent ground. Thus, a

compromise agreement prepared by a lawyer pursuant to the instruction of

his client and delivered to the opposing party,29 an offer and counter-offer

for settlement,30 or a document given by a client to his counsel not in his

professional capacity,31 are not privileged communications, the element of

confidentiality not being present.32

(3) The legal advice must be sought from the attorney in his professional

capacity.33

The communication made by a client to his attorney must not be intended

for mere information, but for the purpose of seeking legal advice from his

attorney as to his rights or obligations. The communication must have been

transmitted by a client to his attorney for the purpose of seeking legal

advice.34

If the client seeks an accounting service,35 or business or personal

assistance,36 and not legal advice, the privilege does not attach to a

communication disclosed for such purpose.

Applying all these rules to the case at bar, we hold that the evidence on

record fails to substantiate complainant's allegations. We note that

complainant did not even specify the alleged communication in confidence

disclosed by respondent. All her claims were couched in general terms and

lacked specificity. She contends that respondent violated the rule on

privileged communication when he instituted a criminal action against her

for falsification of public documents because the criminal complaint

disclosed facts relating to the civil case for annulment then handled by

respondent. She did not, however, spell out these facts which will

determine the merit of her complaint. The Court cannot be involved in a

guessing game as to the existence of facts which the complainant must

prove.

Indeed, complainant failed to attend the hearings at the IBP. Without any

testimony from the complainant as to the specific confidential information

allegedly divulged by respondent without her consent, it is difficult, if not

impossible to determine if there was any violation of the rule on privileged

communication. Such confidential information is a crucial link in establishing

a breach of the rule on privileged communication between attorney and

client. It is not enough to merely assert the attorney-client privilege.37 The

burden of proving that the privilege applies is placed upon the party

asserting the privilege.38

IN VIEW WHEREOF, the complaint against respondent Atty. Julito D. Vitriolo

is hereby DISMISSED for lack of merit.

SO ORDERED.

Austria-Martinez, Callejo, Sr., and Chico-Nazario, JJ., concur.

Tinga, J., out of the country.


SUPREME COURT

Manila

SECOND DIVISION

A.C. No. 3745 October 2, 1995

CYNTHIA B. ROSACIA, complainant,


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vs.

ATTY. BENJAMIN B. BULALACAO, respondent.

R E S O L U T I O N

FRANCISCO, J.:

Complainant Cynthia B. Rosacia, president of Tacma, Phils., Inc., a duly

registered corporation, filed a complaint for disbarment dated October 25,

1991, against herein respondent Atty. Benjamin B. Bulalacao. Acting on the

complaint, the Court in a resolution dated February 24, 1992, resolved to

refer the case to the Integrated Bar of the Philippines (IBP) for investigation,

report and recommendation. Commissioner Victor C. Fernandez, the IBP

investigating commissioner, found that respondent breached his oath of

office and accordingly recommended respondent's suspension from thepractice of law for three (3) months. 1 In a resolution dated July 30, 1994,

the IBP Board of Governors resolved to adopt and approve the

commissioner's report and recommendation. 2

As found by the IBP, the undisputed facts are as follows:

On June 1, 1990, by virtue of a written Agreement (Exh. "3-a"), respondent

Atty. Benjamin B. Bulalacao was hired as retained counsel of a corporation

by the name of Tacma Phils., Inc.

On October 31, 1990, the lawyer-client relationship between the

respondent and Tacma Phils., Inc. was severed as shown by another

agreement of even date (Exh. "3-b").

On July, 1991, or after almost nine (9) months from the date respondent's

retainer agreement with Tacma, Phils., Inc. was terminated, several

employees of the corporation consulted the respondent for the purpose of

filing an action for illegal dismissal. Thereafter, he agreed to handle the case

for the said employees as against Tacma, Phils., Inc. by filing a complaint

before the National Labor Relations Commission, and appearing in their

behalf. 3

The sole issue to be addressed is whether or not respondent breached his

oath of office for representing the employees of his former client, Tacma,

Phils., Inc., after the termination of their attorney-client relationship. We

agree with the findings of the IBP that respondent breached his oath of

office. Respondent does not now dispute this. In fact, in his motion for

reconsideration, respondent admitted that he "did commit an act bordering

on grave misconduct, if not outright violation of his attorney's oath". 4

However, respondent is pleading for the Court's compassion and leniency to

reduce the IBP recommended three months suspension to either fine or

admonition with the following proffered grounds: that he is relatively new

in the profession having been admitted to the Philippine Bar on April 10,

1990 at the age of 46 when the complained conduct was committed on

August 1991; that he is of humble beginnings and his suspension will

deprive his family of its only source of livelihood he being the sole bread

winner in the family; that he has fully realized his mistake and the gravity of

his offense for which he is fully repentant; that he has severed his attorney-

client relationship with the employees of Tacma, Phils., Inc. by inhibiting

himself and withdrawing his appearance as counsel in the labor case against

Tacma, Phils., Inc.; and that he pledges not to commit the same mistake and

to henceforth strictly adhere to the professional standards set forth by the

Code of Professional Responsibility.

The Court reiterates that an attorney owes loyalty to his client not only inthe case in which he has represented him but also after the relation of

attorney and client has terminated as it is not good practice to permit him

afterwards to defend in another case other person against his former client

under the pretext that the case is distinct from, and independent of the

former case. 5 It behooves respondent not only to keep inviolate the client's

confidence, but also to avoid the appearance of treachery and double

dealing for only then can litigants be encouraged to entrust their secrets to

their attorneys which is of paramount importance in the administration of

justice. 6 The relation of attorney and client is one of confidence and trust in


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the highest degree. 7 A lawyer owes fidelity to the cause of his client and he

ought to be mindful of the trust and confidence reposed in him. 8 An

attorney not only becomes familiar with all the facts connected with his

client's cause, but also learns from his client the weak and strong points of

the case. No opportunity must be given attorneys to take advantage of the

secrets of clients obtained while the confidential relation of attorney and

client exists. Otherwise, the legal profession will suffer by the loss of theconfidence of the people. 9

Respondent's plea for leniency cannot be granted. We note that respondent

is new in the profession as he was just admitted to the Philippine Bar on

April 10, 1990, when the breach of his oath of office occurred more than a

year after. Having just hurdled the bar examinations which included an

examination in legal ethics, surely the precepts of the Code of Professional

Responsibility to keep inviolate the client's trust and confidence even after

the attorney-client relation is terminated 10 must have been still fresh in his

mind. A lawyer starting to establish his stature in the legal profession must

start right and dutifully abide by the norms of conduct of the profession.

This will ineluctably redound to his benefit and to the upliftment of the legal

profession as well.

ACCORDINGLY, respondent is hereby SUSPENDED from the practice of law

for three months. Let this resolution be attached to respondent's record in

the Office of the Bar Confidant and copies thereof furnished to all courts

and to the Integrated Bar of the Philippines.

Regalado, Puno and Mendoza, JJ., concur.


SUPREME COURT

Manila

THIRD DIVISION

ADM. CASE No. 5105 August 12, 1999

Adm. Case No. 419

Commission on Bar Discipline IBP

FERNANDO SALONGA, complainant,

vs.

ATTY. ISIDRO T. HILDAWA, respondent.

VITUG, J.:

In an affidavit-complaint, dated 29 March 1996, Fernando Salonga,

President of Sikap at Tiyaga Alabang Vendors Association, Inc., ("STAVA"), of

Muntinlupa City, charged Atty. Isidro T. Hildawa with gross misconduct

and/or deceit. Complainant averred that respondent lawyer was a retained

counsel of STAVA for a number of years and, in December 1993,

represented the association in Civil Cases No. 2406, No. 2413 and No. 2416,

for ejectment against, respectively, Linda Del Rosario, Angelita Manuel and

Francisco Vega, all stallholders at the Alabang market, before the Municipal

Trial Court of Muntinlupa. The defendants deposited the accrued rentals

with the Municipal Trial Court of Muntinlupa. The defendants deposited the

accrued rentals with court. On 14 November 1994, respondent lawyer filed

a motion to withdraw the deposit; thus:

JOINT MOTION TO WITHDRAW DEPOSIT

Counsel for complainant, unto this Honorable Court, most respectfullymanifest:

1. That, defendants-appellants Linda del Rosario, Angelita Manuel and

Francisco Vega made their deposit of accrued rentals on their stalls up to

October 15, 1994, as follows:

a. Linda del Rosario P24,440.60

b. Angelita Manuel 46,436.60

c. Francisco Vega 33,666.60


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Total

________________________

________________P104,543.80

===========

2. That, plaintiff is entitled to such deposits made by the appellants in order

to pay its obligation with the cooperative which granted the concession tothe transient area for the plaintiff to operate;

3. That, counsel for the appellants register no objection to such withdrawal

as shown by his conformity to the herein motion.

Wherefore, it is prayed of this Honorable Court that plaintiff be authorized

to withdraw the corresponding amounts deposited by the defendants in the

above-entitled cases.

RESPECTFULLY SUBMITTED.

November 14, 1994.

MAKATI for Muntinlupa.

HILDAWA & GOMEZ

#3484 Gen. Lucban St., cor. South

Superhighway, Makati, Metro Manila

By:

(Sgd.) ISIDRO T. HILDAWA

PTR NO. 9428868 / 1-21-94 / Muntinlupa

IBP NO. 347727 / 5-06-94 / Makati

With My Conformity:

(Sgd.) Atty. PATRICIO L. BONCAYAO, JR.

2nd Flr. Cattleya Commercial

National Road, Alabang1

Respondent lawyer issued a receipt, dated 09 December 1994, that

acknowledged his having received the withdrawn deposit of P104,543.80.

Complainant alleged that STAVA was not informed of the filing of the

motion nor did it authorize Atty. Hildawa to withdraw the amount. Despiterepeated demands, respondent lawyer refused to turn over the withdrawn

sum to STAVA. To make matters even worse, added the complainant, Atty.

Hildawa appeared as counsel for Kilusang Bayan ng mga Magtitinda sa

Pamilihang Bayan ng Muntinlupa ("KBMBPM"), an opponent of STAVA in

Civil Case No. 95-192, for Injunction with Urgent Prayer for Restraining

Order, before Branch 276 of the Regional Trial Court of Muntinlupa.

Eventually, the RTC, acting on a motion to disqualify respondent in said

case, directed, in its order of 26 December 1995, the latter "to withdraw

from the case and avoid committing an unethical conduct."2

In his answer to the complaint, Atty. Hildawa countered that complainant

was fully aware of the withdrawal of the rental in arrears deposited by the

defendants in the ejectment cases and that complainant, on several

occasions, even accompanied him in following up the release of the money.

He said he did not turn over the amount withdrawn to complainant since

Salonga was then on leave; instead, he handed over, on 10 December 1994,

the sum to Dolores Javinar, the treasurer of the association, who issued the

corresponding receipt therefor.1wphi1.nt

In his reply, Salonga disclaimed the supposed turn-over of the money to

Javinar and the allegation that he was on leave of absence.

This Court referred the case to the Integrated Bar of the Philippines ("IBP")

for investigation, report and recommendation.

In a resolution, dated 13 March 1998, the Commission on Bar Discipline,

through Commissioner Renato G. Cunanan, found respondent guilty of

violation of Canons 16 and 21 of the Code of Professional Responsibility and

recommended that he be suspended for one year from the practice of law.


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On 25 April 1998, the IBP Board of Governors, in its Resolution No. XIII-98-

72, resolved to adopt and approve the recommendation of the Investigating

Commissioner.

Soon after receiving a copy of the above-numbered resolution, respondent

reverted to IBP seeking a reconsideration of its resolution only to be

thereupon informed that the case had already been forwarded to this

Court. Respondent submitted to the Court a memorandum, dated 05 August

1998, asseverating that the findings of the Investigating Commissioner were

contrary to the evidence on record. He cited the resolution of the STAVA

Board of Trustees, dated 30 October 1994, that read:

KATITIKAN NG PULONG

NG

BOARD OF TRUSTEES

NG

SIKAP AT TIYAGA ALABANG VENDORS

ASSOCIATION, INC.

Ginanap noong ika-30 ng Oktubre, 1994 sa

Tanggapan nito sa Alabang

________________________________________

Mga Dumalo:

President Fernando Salonga

Executive Vice-Pres. Tirso Sapar

VP internal Domingo Silava

VP Security Leonardo Gumapos

Auditor Undo Cipriano

Hindi Dumalo:

VP External Aser Arevalo

Treasurer Dolores Javinar

________________________________________

Unang tinalakay sa pagpupulong ang kaayusan ng samahan at mga dapat

tupdin ng mga kasapi bilang kanilang tungkulin sa samahan at sa lugar na

kanilang pinagtitindahan. Ang kalinisan ay pinagtutuunan ng pansin.

Bagama't "on-leave" ang pangulo natin, sa kahalagahan ng pinaguusapan

siya ay narito sa pagpupulong.

Tinalakay ang hindi pagbabayad ng Market Fee at gamit electrical ng 11

dating miyembro ng STAVA na tuwirang nagbabayad ngayon sa kooperatiba.

Dahil dito ay nawawalan ng P450.00 hanggang P500.00 ang samahan sang-

ayon sa taya ng pangulo.

Dahil dito, binigyan ng karapatan ang abogado ng samahan na isaayos ang

dapat na hakbanging legal upang malikom ang salapi para sa STAVA upang

makatugon ito sa bayarin sa KBMBPM at sa iba pang pagkakagastusan sa

hinaharap na okasyon.

Mayroong pag-uusap upang wakasan ang usapin na idinulog ng STAVA laban

sa Kooperatiba sapagkat sa diwa ng magandang pagkakaunawaan at

mabuting samahan, nais ng ipagkaloob ng Kooperatiba ang hinihingi ng

STAVA na lagyan ng hangganan ang lugar na ang mga miembro ng STAVA

ang siya lamang magtitinda sa halagang itatakda ng bawa't panig.

Dito tumindig si Ester Dalde at ipinabatid sa kapulungan na siya ay kinausap

ng Gen. Manager ng Kooperatiba at tinatanong kung maari daw ay huwag

ng paalisin ang labing-isang (11) tumiwalag sa STAVA.


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Tinalakay ng pamunuan ang bagay na ito at ang lahat ay nagkakaisa sa

kanilang paninindigan na dapat lamang palayasin ang lahat ng taksil at anay

ng samahan upang maiwasan ang hindi pagkakaunawaan at tuloy maging

aral na din sa iba pa.

Isinunod na tinalakay ang mga "balimbing" o nagdadalawang mukha at

inatasan na bumuo ng kommitte tungkol dito upang mabatid kung sino-sino

ang mga ito at malapatan ng kaukulang lunas.

Sa ano mang Compromise Agreement na gagawin, hindi dapat pumayag na

manatili pa ang mga taksil sa STAVA at ang kooperatiba ang siyang

magbibigay sa kanila ng lugar sa alin mang parte ng palengke ngunit hindi sa

Transient Area.

Ang pagpupulong ay itinindig sa ganap na ika-2:00 ng hapon.

(Sgd.)

Fernando Salonga

President (Sgd.)

Tirso Sapar

Executive Vice-President

(Sgd.)

Domingo Silava

VP Internal (Sgd.)

Leonardo Gumapos

VP Security

(Sgd.)

Undo Cipriano

Auditor3

Respondent likewise sought to make the clarification that his services as

counsel of STAVA were already terminated in February 1995, long before he

appeared as counsel for KBMBPM in December 1995.

After a close review of the records, the Court is inclined to partially grant

the motion for reconsideration submitted by respondent.

The basis of the Investigating Commissioner for finding respondent lawyer

to have violated Canon 164 was the supposed admission of Atty. Hildawa

that he withdrew the amount of P104,543.80 for STAVA. This fact, however,

was never denied by Atty. Hildawa. It would appear that the real focus

should have been then on the issue of whether or not the withdrawal of the

deposit by respondent had the client's authority. Apparently, he did have

that authority under the resolution, dated 30 October 1994, of the Board of

Trustees of STAVA. The resolution, in part, was to the following effect:

Dahil dito, binigyan ng karapatan ang abogado ng samahan na isaayos ang

dapat na hakbanging legal upang malikom ang salapi para sa STAVA upang

makatugon ito sa bayarin sa KBMBPM at sa iba pang pagkakagastusan sa

hinaharap na okasyon.5

One of the signatories of the resolution was complainant Fernando Salonga

himself. Atty. Hildawa did not keep the money but turned it over on 10

December 1994, or just one day after receiving it (on 09 December 1994), to

Dolores Javinar, the STAVA treasurer, who issued a corresponding receipt

therefor. What the treasurer or STAVA might have done thereafter with the

funds was no concern of respondent counsel.

The Court agrees with the Investigating Commissioner, however, that

respondent lawyer has transgressed Canon 21 which requires a lawyer to

preserve the confidences and secrets of his client even after the attorney-

client relation ceases, a mandate that he has placed in possible jeopardy by


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agreeing to appear as counsel for a party his client has previously contended

with in a case similarly involving said parties.

WHEREFORE, the Court ABSOLVES Atty. Isidro T. Hildawa from the charge of

having violated his obligation to hold in trust the funds of his client but

REPRIMANDS him for having placed at risk his obligation of preserving the

confidentiality relationship with a previous client, with a warning that a

repetition of the same or similar conduct in the future will be dealt with

most severely.1wphi1.nt

SO ORDERED.

Melo, Panganiban, Purisima and Gonzaga-Reyes, JJ., concur.


SUPREME COURT

Manila

SECOND DIVISION

A.C. No. 5280 March 30, 2004

WILLIAM S. UY, complainant,

vs.

ATTY. FERMIN L. GONZALES, respondent.

R E S O L U T I O N

AUSTRIA-MARTINEZ, J.:

William S. Uy filed before this Court an administrative case against Atty.

Fermin L. Gonzales for violation of the confidentiality of their lawyer-client

relationship. The complainant alleges:

Sometime in April 1999, he engaged the services of respondent lawyer to

prepare and file a petition for the issuance of a new certificate of title. After

confiding with respondent the circumstances surrounding the lost title and

discussing the fees and costs, respondent prepared, finalized and submitted

to him a petition to be filed before the Regional Trial Court of Tayug,

Pangasinan. When the petition was about to be filed, respondent went to

his (complainants) office at Virra Mall, Greenhills and demanded a certainamount from him other than what they had previously agreed upon.

Respondent left his office after reasoning with him. Expecting that said

petition would be filed, he was shocked to find out later that instead of

filing the petition for the issuance of a new certificate of title, respondent

filed a letter-complaint dated July 26, 1999 against him with the Office of

the Provincial Prosecutor of Tayug, Pangasinan for "Falsification of Public

Documents."1 The letter-complaint contained facts and circumstances

pertaining to the transfer certificate of title that was the subject matter of

the petition which respondent was supposed to have filed. Portions of saidletter-complaint read:

The undersigned complainant accuses WILLIAM S. UY, of legal age, Filipino,

married and a resident of 132-A Gilmore Street corner 9th Street, New

Manila, Quezon City, Michael Angelo T. UY, CRISTINA EARL T. UY, minors

and residents of the aforesaid address, Luviminda G. Tomagos, of legal age,

married, Filipino and a resident of Carmay East, Rosales, Pangasinan, and F.

Madayag, with office address at A12, 2/F Vira Mall Shopping Complex,

Greenhills, San Juan, Metro Manila, for ESTAFA THRU FALSIFICATION OF

PUBLIC DOCUMENTS, committed as follows:

That on March 15, 1996, William S. Uy acquired by purchase a parcel of land

consisting of 4.001 ha. for the amount of P100,000.00, Philippine Currency,

situated at Brgy. Gonzales, Umingan, Pangasinan, from FERMIN C.

GONZALES, as evidenced by a Deed of Sale executed by the latter in favor of

the former; that in the said date, William S. Uy received the Transfer

Certificate of Title No. T-33122, covering the said land;

That instead of registering said Deed of Sale and Transfer Certificate of Title

(TCT) No. T-33122, in the Register of Deeds for the purpose of transferring


11/29

the same in his name, William S. Uy executed a Deed of Voluntary Land

Transfer of the aforesaid land in favor of his children, namely, Michael

Angelo T. Uy and Cristina Earl T. Uy, wherein William S. Uy made it appear

that his said children are of legal age, and residents of Brgy. Gonzales,

Umingan, Pangasinan, when in fact and in truth, they are minors and

residents of Metro Manila, to qualify them as farmers/beneficiaries, thus

placing the said property within the coverage of the Land Reform Program;

That the above-named accused, conspiring together and helping one

another procured the falsified documents which they used as supporting

papers so that they can secure from the Office of the Register of Deeds of

Tayug, Pangasinan, TCT No. T-5165 (Certificate of Land Ownership Award

No. 004 32930) in favor of his above-named children. Some of these

Falsified documents are purported Affidavit of Seller/Transferor and

Affidavit of Non-Tenancy, both dated August 20, 1996, without the

signature of affiant, Fermin C. Gonzales, and that on that said date, Fermin

C. Gonzales was already dead ;

That on December 17, 1998, William S. Uy with deceit and evident intent to

defraud undersigned, still accepted the amount of P340,000.00, from Atty.

Fermin L. Gonzales, P300,000.00, in PNB Check No. 0000606, and

P40,000.00, in cash, as full payment of the redemption of TCT No.

33122knowing fully well that at that time the said TCT cannot be

redeemed anymore because the same was already transferred in the name

of his children;

That William S. Uy has appropriated the amount covered by the aforesaid

check, as evidenced by the said check which was encashed by him;

That inspite of repeated demands, both oral and in writing, William S. Uy

refused and continue to refuse to deliver to him a TCT in the name of the

undersigned or to return and repay the said P340,000.00, to the damage

and prejudice of the undersigned.2

With the execution of the letter-complaint, respondent violated his oath as

a lawyer and grossly disregarded his duty to preserve the secrets of his

client. Respondent unceremoniously turned against him just because he

refused to grant respondents request for additional compensation.

Respondents act tarnished his reputation and social standing.3

In compliance with this Courts Resolution dated July31, 2000,4 respondent

filed his Comment narrating his version, as follows:

On December 17, 1998, he offered to redeem from complainant a 4.9hectare-property situated in Brgy. Gonzales, Umingan, Pangasinan covered

by TCT No. T-33122 which the latter acquired by purchase from his

(respondents) son, the late Fermin C. Gonzales, Jr.. On the same date, he

paid complainant P340,000.00 and demanded the delivery of TCT No. T-

33122 as well as the execution of the Deed of Redemption. Upon request,

he gave complainant additional time to locate said title or until after

Christmas to deliver the same and execute the Deed of Redemption. After

the said period, he went to complainants office and demanded the delivery

of the title and the execution of the Deed of Redemption. Instead,complainant gave him photocopies of TCT No. T-33122 and TCT No. T-5165.

Complainant explained that he had already transferred the title of the

property, covered by TCT No.T-5165 to his children Michael and Cristina Uy

and that TCT No. T-5165 was misplaced and cannot be located despite

efforts to locate it. Wanting to protect his interest over the property

coupled with his desire to get hold of TCT No. T-5165 the earliest possible

time, he offered his assistance pro bono to prepare a petition for lost title

provided that all necessary expenses incident thereto including expenses for

transportation and others, estimated at P20,000.00, will be shouldered bycomplainant. To these, complainant agreed.

On April 9, 1999, he submitted to complainant a draft of the petition for the

lost title ready for signing and notarization. On April 14, 1999, he went to

complainants office informing him that the petition is ready for filing and

needs funds for expenses. Complainant who was with a client asked him to

wait at the anteroom where he waited for almost two hours until he found

out that complainant had already left without leaving any instructions nor

funds for the filing of the petition. Complainants conduct infuriated him

which prompted him to give a handwritten letter telling complainant that


12/29

he is withdrawing the petition he prepared and that complainant should get

another lawyer to file the petition.

Respondent maintains that the lawyer-client relationship between him and

complainant was terminated when he gave the handwritten letter to

complainant; that there was no longer any professional relationship

between the two of them when he filed the letter-complaint for falsification

of public document; that the facts and allegations contained in the letter-

complaint for falsification were culled from public documents procured

from the Office of the Register of Deeds in Tayug, Pangasinan.5

In a Resolution dated October 18, 2000, the Court referred the case to the

Integrated Bar of the Philippines (IBP) for investigation, report and

recommendation.6

Commissioner Rebecca Villanueva-Maala ordered both parties to appear on

April 2, 2003 before the IBP.7 On said date, complainant did not appear

despite due notice. There was no showing that respondent received the

notice for that days hearing and so the hearing was reset to May 28, 2003.8

On April 29, 2003, Commissioner Villanueva-Maala received a letter from

one Atty. Augusto M. Macam dated April 24, 2003, stating that his client,

William S. Uy, had lost interest in pursuing the complaint he filed against

Atty. Gonzales and requesting that the case against Atty. Gonzales be

dismissed.9

On June 2, 2003, Commissioner Villanueva-Maala submitted her report andrecommendation, portions of which read as follows:

The facts and evidence presented show that when respondent agreed to

handle the filing of the Verified Petition for the loss of TCT No. T-5165,

complainant had confided to respondent the fact of the loss and the

circumstances attendant thereto. When respondent filed the Letter-

Complaint to the Office of the Special Prosecutor in Tayug, Pangasinan, he

violated Canon 21 of the Code of Professional Responsibility which expressly

provides that "A lawyer shall preserve the confidences and secrets of his

client even after the attorney-client relation is terminated." Respondent

cannot argue that there was no lawyer-client relationship between them

when he filed the Letter-Complaint on 26 July 1999 considering that as early

as 14 April 1999, or three (3) months after, respondent had already

terminated complainants perceived lawyer-client relationship between

them. The duty to maintain inviolate the clients confidences and secrets is

not temporary but permanent. It is in effect perpetual for "it outlasts the

lawyers employment" (Canon 37, Code of Professional Responsibility)which means even after the relationship has been terminated, the duty to

preserve the clients confidences and secrets remains effective. Likewise

Rule 21.02, Canon 21 of the Rules of Professional Responsibility provides

that "A lawyer shall not, to the disadvantage of his client, use information

acquired in the course of employment, nor shall he use the same to his own

advantage or that of a third person, unless the client with the full

knowledge of the circumstances consents thereto."

On 29 April 2003, the Commission received a letter dated 24 April 2003

from Atty. Augusto M. Macam, who claims to represent complainant,

William S. Uy, alleging that complainant is no longer interested in pursuing

this case and requested that the same be dismissed. The aforesaid letter

hardly deserves consideration as proceedings of this nature cannot be

"interrupted by reason of desistance, settlement, compromise, restitution,

withdrawal of the charges, or failure of the complainant to prosecute the

same. (Section 5, Rule 139-B, Rules of Court). Moreover, in Boliver vs.

Simbol, 16 SCRA 623, the Court ruled that "any person may bring to this

Courts attention the misconduct of any lawyer, and action will usually be

taken regardless of the interest or lack of interest of the complainant, if the

facts proven so warrant."

IN VIEW OF THE FOREGOING, we find respondent Atty. Fermin L. Gonzales

to have violated the Code of Professional Responsibility and it is hereby

recommended that he be SUSPENDED for a period of SIX (6) MONTHS from

receipt hereof, from the practice of his profession as a lawyer and member

of the Bar.10

On June 21, 2003, the Board of Governors of the Integrated Bar of the

Philippines issued Resolution No. XV-2003-365, thus:


13/29

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and

APPROVED, the Report and Recommendation of the Investigating

Commissioner of the above-entitled case, herein made part of this

Resolution/Decision as Annex "A"; and finding the recommendation fully

supported by the evidence on record and applicable laws and rules, and

considering that respondent violated Rule 21.02, Canon 21 of the Canons of

Professional Responsibility, Atty. Fermin L. Gonzales is hereby SUSPENDEDfrom the practice of law for six (6) months.11

Preliminarily, we agree with Commissioner Villanueva-Maala that the

manifestation of complainant Uy expressing his desire to dismiss the

administrative complaint he filed against respondent, has no persuasive

bearing in the present case.

Sec. 5, Rule 139-B of the Rules of Court states that:

.

No investigation shall be interrupted or terminated by reason of the

desistance, settlement, compromise, restitution, withdrawal of the charges,

or failure of the complainant to prosecute the same.

This is because:

A proceeding for suspension or disbarment is not in any sense a civil action

where the complainant is a plaintiff and the respondent lawyer is a

defendant. Disciplinary proceedings involve no private interest and afford

no redress for private grievance. They are undertaken and prosecuted solely

for the public welfare. They are undertaken for the purpose of preserving

courts of justice from the official ministration of persons unfit to practice in

them. The attorney is called to answer to the court for his conduct as an

officer of the court. The complainant or the person who called the attention

of the court to the attorney's alleged misconduct is in no sense a party, and

has generally no interest in the outcome except as all good citizens may

have in the proper administration of justice. Hence, if the evidence on

record warrants, the respondent may be suspended or disbarred despite

the desistance of complainant or his withdrawal of the charges.12

Now to the merits of the complaint against the respondent.

Practice of law embraces any activity, in or out of court, which requires the

application of law, as well as legal principles, practice or procedure and calls

for legal knowledge, training and experience.13 While it is true that a lawyer

may be disbarred or suspended for any misconduct, whether in his

professional or private capacity, which shows him to be wanting in moral

character, in honesty, probity and good demeanor or unworthy to continue

as an officer of the court,14 complainant failed to prove any of the

circumstances enumerated above that would warrant the disbarment or

suspension of herein respondent.

Notwithstanding respondents own perception on the matter, a scrutiny of

the records reveals that the relationship between complainant and

respondent stemmed from a personal transaction or dealings between

them rather than the practice of law by respondent. Respondent dealt with

complainant only because he redeemed a property which complainant hadearlier purchased from his (complainants) son. It is not refuted that

respondent paid complainant P340,000.00 and gave him ample time to

produce its title and execute the Deed of Redemption. However, despite the

period given to him, complainant failed to fulfill his end of the bargain

because of the alleged loss of the title which he had admitted to respondent

as having prematurely transferred to his children, thus prompting

respondent to offer his assistance so as to secure the issuance of a new title

to the property, in lieu of the lost one, with complainant assuming the

expenses therefor.

As a rule, an attorney-client relationship is said to exist when a lawyer

voluntarily permits or acquiesces with the consultation of a person, who in

respect to a business or trouble of any kind, consults a lawyer with a view of

obtaining professional advice or assistance. It is not essential that the client

should have employed the attorney on any previous occasion or that any

retainer should have been paid, promised or charged for, neither is it

material that the attorney consulted did not afterward undertake the case

about which the consultation was had, for as long as the advice and


14/29

assistance of the attorney is sought and received, in matters pertinent to his

profession.15

Considering the attendant peculiar circumstances, said rule cannot apply to

the present case. Evidently, the facts alleged in the complaint for "Estafa

Through Falsification of Public Documents" filed by respondent against

complainant were obtained by respondent due to his personal dealings with

complainant. Respondent volunteered his service to hasten the issuance of

the certificate of title of the land he has redeemed from complainant.

Respondents immediate objective was to secure the title of the property

that complainant had earlier bought from his son. Clearly, there was no

attorney-client relationship between respondent and complainant. The

preparation and the proposed filing of the petition was only incidental to

their personal transaction.

Canon 21 of the Code of Professional Responsibility reads:

Canon 21A LAWYER SHALL PRESERVE THE CONFIDENCE AND SECRETS OF

HIS CLIENT EVEN AFTER THE ATTORNEY-CLIENT RELATION IS TERMINATED.

Rule 21.01A lawyer shall not reveal the confidences or secrets of his client

except:

a) When authorized by the client after acquainting him of the consequences

of the disclosure;

b) When required by law;

c) When necessary to collect his fees or to defend himself, his employees or

associates or by judicial action.

The alleged "secrets" of complainant were not specified by him in his

affidavit-complaint. Whatever facts alleged by respondent against

complainant were not obtained by respondent in his professional capacity

but as a redemptioner of a property originally owned by his deceased son

and therefore, when respondent filed the complaint for estafa against

herein complainant, which necessarily involved alleging facts that would

constitute estafa, respondent was not, in any way, violating Canon 21. There

is no way we can equate the filing of the affidavit-complaint against herein

complainant to a misconduct that is wanting in moral character, in honesty,

probity and good demeanor or that renders him unworthy to continue as an

officer of the court. To hold otherwise would be precluding any lawyer from

instituting a case against anyone to protect his personal or proprietary

interests.

WHEREFORE, Resolution No. XV-2003-365 dated June 21, 2003 of the

Integrated Bar of the Philippines is REVERSED and SET ASIDE and the

administrative case filed against Atty. Fermin L. Gonzales, docketed as A.C.

No. 5280, is DISMISSED for lack of merit.

SO ORDERED.

Puno, (Chairman), Quisumbing, Callejo, Sr., and Tinga, JJ., concur.


SUPREME COURT

Manila

SECOND DIVISION

ADM. CASE NO. 5018 January 26, 2007

ROGELIO H. VILLANUEVA, Complainant,

vs.

ATTY. AMADO B. DELORIA, Respondent.

R E S O L U T I O N

TINGA, J.:

This treats of the Complaint1 for Disbarment dated February 17, 1999 filed

by Rogelio H. Villanueva (Villanueva) against Atty. Amado B. Deloria inconnection with HLRB Case No. REM-080592-5166, entitled "Spouses


15/29

Conrado De Gracia v. Estate of Jaime Gonzales, et al." Atty. Deloria, a former

full-time Commissioner of the Housing and Land Use Regulatory Board

(HLURB), appeared as counsel for the spouses De Gracia.

Villanueva avers that a decision in that case was rendered by Housing and

Land Use Arbiter,2 Atty. Teresita R. Alferez, requiring the Estate of Jaime

Gonzales to, among other things, refund to the spouses De Gracia the

amount of P69,000.00 plus interest at the prevailing commercial interest

rates. The case was eventually assigned to Villanueva upon the latters

designation as Arbiter.

It appears that Atty. Deloria filed a Motion for Issuance of Substitute

Judgment and for Consignation3 claiming that the Estate of Jaime Gonzales

does not want to pay interest based on commercial interest rates.

Villanueva asserts, however, that Atty. Delorias allegation is belied by two

motions filed by counsel for the Estate of Jaime Gonzales which merely seek

to clarify the precise interest rate applicable to the case in order for it tofully comply with the decision.

Atty. Delorias misrepresentation is allegedly a violation of the Code of

Professional Responsibility (Code), particularly Canons 1,4

10,5 126 and 197 thereof, the Attorneys Oath of Office and Art. 19 of the

Civil Code. Atty. Deloria also allegedly violated Canon 118 of the Code

because he sought the substitution of a decision which he knew had already

become final and partially executed.

Villanueva notes that Atty. Deloria enclosed with his motion a check in the

amount of P69,000.00 payable to the order of the Estate of Jaime Gonzales

and Corazon Gonzales, representing the principal refunded to the spouses

De Gracia in compliance with the decision. Villanueva states that the check

was drawn against Atty. Delorias personal checking account in violation of

Canon 169 of the Code.

Moreover, according to Villanueva, Atty. Deloria offered him 50% of the

recoverable amount in the case if he resolves the latters motion

favorably.10 Atty. Delorias conduct allegedly violates the previously cited

canons of the Code, Canon 13,11 Rule 15.06,12 Canon 15 of the Code, Art.

212 of the Revised Penal Code, the Attorneys Oath of Offi ce and Art. 19 of

the Civil Code.

Villanueva also alleges that Atty. Deloria used his influence as former

Commissioner of the HLURB to persuade Atty. Alferez to impose interest

based on commercial rates instead of the interest rate fixed in Resolution

No. R-42113 and Memorandum Circular No. 19,14 both of which provide a

uniform rate of interest in decisions involving refunds. Atty. Deloria also

allegedly used his connections in the HLURB to prevent Villanueva from

releasing an Order denying the formers mot ion and to prevail upon the

agencys Legal Services Group to interpret the term "commercial rate of

interest" in a way that is favorable to his clients case, again in violation of

the Code.15

Further, Villanueva claims that Atty. Deloria assisted his client in filing an

unfounded criminal case against him before the Office of the Ombudsmanwith the purpose of getting even with Villanueva for denying their motion.

When his client pursued this course of action, Atty. Deloria allegedly should

have withdrawn his services in accordance with Rule 22.01,16 Canon 22 of

the Code.

In his Comment17 dated September 22, 2000, Atty. Deloria denies any

wrongdoing and sought the dismissal of the Complaint for lack of merit. He

avers that the refusal of the Estate of Jaime Gonzales to pay the interest

stipulated in the decision is evident from the various motions it has filed. On

the alleged commingling of his funds with those of his clients, Atty. Deloria

claims that the spouses De Gracia requested him to advance the amount

intended for consignation as they were then on vacation in the United

States. He also maintains that he did not exert any influence on the HLURB

to rule in his clients favor, adding that the draft order which he filed in the

case is required under the rules of the agency.

Atty. Deloria counters that it is Villanueva who has exhibited partiality in

favor of the Estate of Jaime Gonzales by failing to rule on the motions for

clarification filed by the latter, thereby forcing the spouses De Gracia to wait


16/29

for an inordinately long time for the decision in their favor to be fully

implemented.

Villanueva, in his Reply18 dated November 10, 2000, contends that he

would have been indicted by the Office of the Ombudsman if it were true

that his Order in the case was motivated by bias and partiality in favor of

the Estate of Jaime Gonzales.

In a Resolution19 dated February 19, 2001, we referred the case to the

Integrated Bar of the Philippines (IBP) for investigation, report and

recommendation.

Investigating Commissioner Renato G. Cunanan submitted a Report20 dated

September 29, 2005, finding merit in the Complaint and recommending that

Atty. Deloria be suspended from the practice of law for two (2) years and/or

be fined in the amount of P20,000.00. This recommendation was annulled

and set aside by the IBP in its Resolution No. XVII-2006-279 dated May 26,

2006. The case was instead dismissed for lack of merit.

The report and recommendation of the Investigating Commissioner appears

to be based solely on the Rollo of the case which the Court sent to the IBP

pursuant to the Resolution dated February 19, 2001. The Investigating

Commissioner did not conduct any hearing to determine the veracity of the

allegations in Villanuevas Complaint and the truthfulness of Atty. Delorias

answers thereto.

A formal investigation is a mandatory requirement which may not bedispensed with except for valid and compelling reasons.21 In Baldomar v.

Paras,22 we held:

Complaints against lawyers for misconduct are normally addressed to the

Court. If, at the outset, the Court finds a complaint to be clearly wanting in

merit, it outrightly dismisses the case. If, however, the Court deems it

necessary that further inquiry should be made, such as when the matter

could not be resolved by merely evaluating the pleadings submitted, a

referral is made to the IBP for a formal investigation of the case during

which the parties are accorded an opportunity to be heard. An ex-parte

investigation may only be conducted when respondent fails to appear

despite reasonable notice. x x x

Rule 139-B of the Rules of Court provides the procedure for investigation in

disbarment and disciplinary proceedings against attorneys before the IBP,

thus:

Sec. 8. Investigation.Upon joinder of issues or upon failure of therespondent to answer, the Investigator shall, with deliberate speed,

proceed with the investigation of the case. He shall have the power to issue

subpoenas and administer oaths. The respondent shall be given full

opportunity to defend himself, to present witnesses on his behalf, and be

heard by himself and counsel. However, if upon reasonable notice, the

respondent fails to appear, the investigation shall proceed ex-parte.

The Investigator shall terminate the investigation within three (3) months

from the date of its commencement, unless extended for good cause by the

Board of Governors upon prior application.

Willful failure or refusal to obey a subpoena or any other lawful order issued

by the Investigator shall be dealt with as for indirect contempt of court. The

corresponding charge shall be filed by the Investigator before the IBP Board

of Governors which shall require the alleged contemnor to show cause

within ten (10) days from notice. The IBP Board of Governors may

thereafter conduct hearings, if necessary, in accordance with the procedure

set forth in this Rule for hearings before the Investigator. Such hearing shall

as far as practicable be terminated within fifteen (15) days from its

commencement. Thereafter, the IBP Baord of Governors shall within a like

period of fifteen (15) days issue a resolution setting forth its findings and

recommendations, which shall forthwith be transmitted to the Supreme

Court for final action and if warranted, the imposition of penalty.

We find that due observance of the foregoing rules is necessary for the

proper resolution of this case.


17/29

WHEREFORE, the instant administrative case is REMANDED to the

Integrated Bar of the Philippines for further proceedings. The IBP is also

directed to act on this referral with deliberate dispatch.

SO ORDERED.

DANTE O. TINGA

Associate Justice


SUPREME COURT

Manila

FIRST DIVISION

A.C. No. 4215 May 21, 2001

FELICISIMO M. MONTANO, complainant,

vs.

INTEGRATED BAR OF THE PHILIPPINES and Atty. JUAN S. DEALCA,

respondents.

KAPUNAN, J.:

In a verified complaint filed before this Court on March 9, 1994, complaintFelicisimo M. Montano charged Atty. Juan Dealca with misconduct and

prays that he be "sternly dealt with administratively." The complaint1 is

summarized as follows:

1. On November 14, 1992, the complainant hired the services of Atty. Juan

S. Dealca as his counsel in collaboration with Atty. Ronando L. Gerona in a

case pending before the Court of Appeals docketed as CA-G.R. CV No. 3767

wherein the complainant was the plaintiff-appellant.

2. The parties agreed upon attorney's fees in the amount of P15,000.00 fifty

percent (50%) of which was payable upon acceptance of the case and the

remaining balance upon the termination of the case. Accordingly,

complainant paid respondent the amount of P7,500.00 representing 50% of

the attorney's fee.

3. Thereafter, even before respondent counsel had prepared the appellant's

brief and contrary to their agreement that the remaining balance be

payable after the termination of the case, Atty. Dealca demanded an

additional payment from complainant obliged by paying the amount of

P4,000.00.

4. Prior to the filing of the appellant's brief, respondent counsel again

demanded payment of the remaining balance of P3,500.00. When

complainant was unable to do so, respondent lawyer withdraw his

appearance as complainant's counsel without his prior knowledge and/or

conformity. Returning the case folder to the complainant, respondentcounsel attached a Note dated February 28, 1993,2 stating:

28 February 1994

Pepe and Del Montano,

For breaking your promise, since you do not want to fulfill your end of the

bargain, here's your reward:

Henceforth, you lawyer for yourselves. Here are your papers.

Johnny

Complainant claimed that such conduct by respondent counsel exceeded

the ethical standards of the law profession and prays that the latter be

sternly dealt with administratively. Complainant later on filed motions

praying for the imposition of the maximum penalty of disbarment.

After respondent counsel filed his comment on the complaint, the Court in

the Resolution of August 1, 1994, referred the case of the Integrated Bar of

the Philippines (IBP) for investigation, report and recommendation.


18/29

The Investigating Commissioner found respondent counsel guilty of

unprofessional conduct and recommended that he be "severely

reprimanded." However, in a Resolution3 by the IBP Board of Governors on

July 26, 1997, it was resolved that the penalty recommended by the

Investigating Commissioner meted to respondent be amended to "three (3)

months suspension from the practice of law for having been found guilty of

misconduct, which eroded the public confidence regarding his duty as a

lawyer."

Respondent counsel sought reconsideration of the aforementioned

resolution of the IBP, alleging that the latter misapprehended the facts and

that, in any case, he did not deserve the penalty imposed. The true facts,

according to him, are the following.

1. Complainant is being represented by Atty. Ronando L. Gerona in his case

on appeal;

2. Due to the ailment of Atty. Gerona's daughter, he could not prepare and

submit complainant's appellant's brief on time;

3. Complainant wen to the respondent to do just that, i.e., prepare and

submit his appellant's brief on time at the agreed fee of P15,000.00, 50%

down and 50% upon its completion;

4. Working overtime, respondent was able to finish the appellant's brief

ahead of its deadline, so he advised the complainant about its completion

with the request that the remaining balance of P7,500.00 be paid.Complainant paid P4,000.00 only, promising to pay the P3,500.00

"tomorrow" or on "later particular date." Please take note that, at this

juncture, there was already a breach of the agreement on complainant's

part.

5. When that "tomorrow" or on a "later particular date" came, respondent,

thru a messenger, requested the complainant to pay the P3,500.00 as

promised but word was sent that he will again pay "tomorrow" or on a

"later date." This promise-non-payment cycle went on repeatedly until the

last day of the filing of the brief. Please take note again that it was not the

respondent but the complainant who sets the date when he will pay, yet he

fails to pay as promised;

6. Even without being paid completely, respondent, of his own free will and

accord, filed complainant's brief on time;

7. After the brief was filed, respondent tried to collect from the complainant

the remaining balance of P3,500.00, but the latter made himself scare. Asthe records would show, such P3,500.00 remains unpaid until now;

8. Sensing that something was amiss, respondent sent the February 28,

1993 note and case folder to the complainant, hoping that the latter would

see personally the former about it to settle the matter between them;

9. However, instead of seeing the respondent, complainant filed this case;

10. Respondent was constrained to file his withdrawal with the Court of

Appeals because of this case to avoid further misunderstanding since hewas the one who signed the appellant's brief although Atty. Gerona was his

counsel of record. Such withdrawal was accordingly granted by the

appellate court;

xxx xxx xxx.4

Respondent counsel further averred that complainant's refusal to pay the

agreed lawyer's fees, measly as it was, was deliberate and in bad faith;

hence, his withdrawal as counsel was "just, ethical and proper." Respondent

counsel concluded that not only was the penalty of suspension harsh for his

act of merely trying to collect payment for his services rendered, but it

indirectly would punish his family since he was the sole breadwinner with

children in school and his wife terminally ill with cancer.

In its Resolution No. XIII-97-129 dated October 25, 1997, the IBP denied

Atty. Dealca's motion for reconsideration, to wit:

xxx


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RESOLVED TO DENY Atty. Dealca's Motion For Reconsideration of the

Board's Decision in the above-entitled case there being no substantive

reason to reverse the finding therein. Moreover, the motion is improperly

laid the remedy of the respondent is to file the appropriate pleading with

the Supreme Court within fifteen (15) days from receipt of notice of said

Decision pursuant to Sec. 12 [c] of Rule 139-B.5

On December 10, 1997, this Court noted the following pleadings filed in the

present complaint,

(a) notice and a copy of Resolution No. XII-97-154 dated July 26, 1997 of the

Integrated Bar of the Philippines amending the recommendation of the

Investigating Commissioner of reprimand to three (3) months suspension of

respondent from the practice of law for having been found guilty of

misconduct which eroded the public confidence regarding his duty as a

lawyer;

(a) complainant's motion praying for the imposition of the maximum

penalty of disbarment;

(b) motion dated September 15, 1997 of respondent for reconsideration of

the aforesaid resolution of July 26, 1997;

(c) comment/opposition of respondent praying that the motion for the

imposition of the maximum penalty be denied;

(d) comment of complainant praying that the penalty of three (3) months

suspension from the practice of law as recommended by the Integrated Bar

of the Philippines pursuant to resolution No. XII-97-154 be raised to a

heavier penalty;

(e) comment/manifestation/opposition of complainant praying that the

respondent be disbarred; and

(g) rejoinder of respondent praying that this case be dismissed for being

baseless.6

and referred the same to the IBP for evaluation and report.

In compliance therewith, on March 28, 1998, the IBP issued Resolution No.

XIII-98-42 referring the above-entitled case to Commissioner Vibar for

evaluation, report and recommendation "in view of the Motion for

Reconsideration granted by the Supreme Court."

The Investigating Commissioner, after referring the case, recommended

that his original recommendation of the imposition of the penalty of

reprimand be maintained, noting that respondent counsel had served the

IBP well as President of the Sorsogon Chapter.7 Accordingly, on February

23, 1999, the IBP Board of Governors, issued the following resolution:

RESOLUTION NO. XIII-99-48

xxx

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and

APPROVED, the Report and Recommendation of the Investigating

Commissioner in the above-entitled case, herein made part of this

Resolution/Decision as Annex "A"; and, finding the recommendation fully

supported by the evidence on record and the applicable laws and rules, the

Motion for Reconsideration be granted and that the penalty of REPRIMAND

earlier recommended by the Investigating Commissioner be imposed on

Atty. Juan S. Dealca.8

Complainant asked the IBP to reconsider the foregoing resolution but the

motion was denied.9

On April 10, 2000, complainant filed with this Court a petition for review on

certiorari in connection with Administrative Case No. 4215 against the IBP

and respondent counsel averring that the IBP Board of Governors

committed grave abuse of discretion when it overturned its earlier

resolution and granted respondent counsel's motion for reconsideration on

February 23, 1999. He claimed that the earlier resolution denying the

motion for reconsideration issued on October 25, 1997 had already become

final and executory; hence, any further action or motion subsequent to such

final and executory judgment shall be null and void.


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When the Court issued the resolution of December 10, 1997 treating the

several pleadings filed in the present complaint, it should be noted that the

IBP resolution denying respondent's motion for reconsideration (Resolution

No. XIII-97-129) dated October 25, 1997, for some reason, had not yet

reached this Court. As of that date, the only IBP resolution attached to the

records of the case was Resolution No. XII-97-54 amending the

administrative sanction from reprimand to three months suspension.

Hence, at the time the pleadings were referred back to the IBP in the same

resolution, the Court was not aware that the IBP had already disposed of

the motion for reconsideration filed by respondent counsel.

Thus, when the IBP was informed of the said Court resolution, it construed

the same as granting Atty. Dealca's motion for reconsideration and as an

order for IBP to conduct a re-evaluation of the case. The IBP assumed that

its resolution of October 25, 1997 was already considered by this Court

when it referred the case back to the IBP. It failed to notice that its

resolution denying the motion for reconsideration was not among those

pleadings and resolution referred back to it.

Hence, on the strength of this Court's resolution which it had inadvertently

misconstrued, the IBP conducted a re-evaluation of the case and came up

with the assailed resolution now sought to be reversed. The Court holds

that the error is not attributable to the IBP. It is regrettable that the

procedural infirmity alleged by complainant actually arose from a mere

oversight which was attributable to neither party.

Going into the merits, we affirm the findings made by the IBP that

complainant engaged the services of respondent lawyer only for the

preparation and submission of the appellant's brief and the attorney's fees

was payable upon the completion and submission of the appellant's brief

and not upon the termination of the case.

There is sufficient evidence which indicates complainant's willingness to pay

the attorney's fees. AS agreed upon, complainant paid half of the fees in the

amount of P7,500.00 upon acceptance of the case. And while the remaining

balance was not yet due as it was agreed to be paid only upon the

completion and submission of the brief, complainant nonetheless delivered

to respondent lawyer P4,000.00 as the latter demanded. This,

notwithstanding, Atty. Dealca withdrew his appearance simply because of

complainant's failure to pay the remaining balance of P3,500.00 which does

not appear to be deliberate. The situation was aggravated by respondent

counsel's note to complainant withdrawing as counsel which was couched

in impolite and insulting language.10

Given the above circumstances, was Atty. Dealca's conduct just and proper?

We find Atty. Dealca's conduct unbecoming of a member of the legal

profession. Under Canon 22 of the Code of Professional Responsibility, a

lawyer shall withdraw his services only for good cause and upon notice

appropriate in the circumstances. Although he may withdraw his services

when the client deliberately fails to pay the fees for the services,11 under

the circumstances of the present case, Atty. Dealca's withdrawal was

unjustified as complainant did not deliberately fail to pay him the attorney'sfees. In fact, complainant exerted honest efforts to fulfill his obligation.

Respondent's contemptuous conduct does not speak well of a member of

the bar considering that the amount owing to him was only P3,500.00. rule

20.4 of Canon 20, mandates that a lawyer shall avoid controversies with

clients concerning his compensation and shall resort to judicial action only

to prevent imposition, injustice or fraud. Sadly, for not so large a sum owed

to him by complainant, respondent lawyer failed to act in accordance with

the demands of the Code.

The Court, however, does not agree with complainant's contention that the

maximum penalty of disbarment should be imposed on respondent lawyer.

The power to disbar must be exercised with great caution. Only in a clear

case of misconduct that seriously affects the standing and character of the

lawyer as an officer of the Court and member of the bar will disbarment be

imposed as a penalty. It should never be decreed where a lesser penalty,

such as temporary suspension, would accomplish the end desired.12 In the

present case, reprimand is deemed sufficient.


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WHEREFORE, in view of the foregoing, respondent Atty. Juan S. Dealca is

REPRIMANDED with a warning that repetition of the same act will be dealt

with more severely.1wphi1.nt

SO ORDERED.

Davide, Jr., Puno, Pardo, Ynares-Santiago, JJ: concur.


SUPREME COURT

Manila

SECOND DIVISION

A.C. No. 3773 September 24, 1997

ANGELITA C. ORCINO, complainant,

vs.

ATTY. JOSUE GASPAR, respondent.

PUNO, J.:

On June 14, 1992, complainant Angelita C. Orcino filed with this Court a

letter-complaint dated December 10, 1991 against respondent Atty. Josue

Gaspar, her former counsel. Complainant prayed that this Court impose

disciplinary sanctions on respondent for abandoning his duties and for

failing to return the legal fees she fully paid for his services.

The complaint arose from the following facts: Complainant engaged the

services of respondent to prosecute a criminal case she intended to file

against several suspects in the slaying of her husband. In consideration

thereof, complainant bound herself to pay respondent legal fees of

P20,000.00 P10,000.00 to be paid upon signing of the contract and the

balance to be paid on or before the conclusion of the case. Complainant was

also to pay P500.00 per appearance of respondent before the court and

fiscal. This agreement was embodied in a contract executed on February 22,

1991. 1

In accordance with the contract, complainant paid respondent the sum of

P5,000.00 on February 25, 1991, 2another P5,000.00 on March 31, 1991, 3

and P10,000.00 on May 21, 1991, 4 for a total of P20,000.00.

Forthwith, respondent entered into his duties. He interviewed witnesses

and gathered evidence to build a case against the suspects. He drew up the

necessary sworn statements and dutifully attended the preliminary

investigation. The case was thereafter filed with the Regional Trial Court,

Branch 37, Baloc, Sto. Domingo, Nueva Ecija. 5

As private prosecutor, respondent religiously attended the bail hearings for

the accused although these hearings were postponed on motion of the

accused's counsel. Respondent however failed to attend the hearing

scheduled in August 1991. It was at this nearing that the court, over

complainant's objections, granted bail to all the accused. After the hearing,

complainant immediately went to respondent's residence and confronted

him with his absence. 6Respondent explained that he did not receive formal

notice of the hearing. 7 Complainant became belligerent and started

accusing him of jeopardizing the case by his absence. Respondent said that

her suspicions were based on rumors and intrigues fed to her by her

relatives. 8 Complainant, however, continued accusing him belligerently.

She asked for the records of the case saying that she could refer them to

another lawyer. Stung by her words, respondent gave her the records. 9

Complainant never returned the records nor did she see respondent. On

September 18, 1991, respondent filed before the trial court a "Motion to

Withdraw as Counsel." 10 The motion did not bear the consent of

complainant.


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On October 23, 1991, the court issued an order directing respondent to

secure complainant's consent to the motion "and his appearance as private

prosecutor shall continue until he has secured this consent." 11

Complainant refused to sign her conformity to respondent's withdrawal. 12

Meanwhile, the hearings in the criminal case continued. Respondent did not

appear at the hearings nor did he contact complainant. Complainant was

thus compelled to engage the services of another lawyer. Hence, the letter-

complaint.

We referred the letter-complaint to the Integrated Bar of the Philippines,

Commission on Bar Discipline, for investigation, report and

recommendation.

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. 13

The right of an attorney to withdraw or terminate the relation other than

for sufficient cause is, however, considerably restricted. 14 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. 15 He

is not at liberty to abandon it without reasonable cause. 16 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. 17

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

Sec. 26. Change of attorneys An attorney may retire at any time from anyaction 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.

xxx xxx xxx

A lawyer may retire at any time from any action special proceeding with the

written consent of his client filed in court and 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 he ought to be allowed to retire.

The application for withdrawal must be based on a good cause. 18

In the instant case, complainant did not give her written consent to

respondent's withdrawal. The court thus ordered respondent to secure this

consent. Respondent allegedly informed the court that complainant had

become hostile and refused to sign his motion. 19 He, however, did not file

an application with the court for it to determine whether he should be

allowed to withdraw.

Granting that respondent's motion without complainant's consent was an

application for withdrawal with the court, we find that this reason is

insufficient to justify his withdrawal from the case. Respondent's withdrawalwas made on the ground that "there no longer exist[ed] the . . . confidence"

between them and that there had been "serious differences between them

relating to the manner of private prosecution." 20

Rule 22.01 of Canon 22 of the Code of Professional Responsibility provides:

CANON 22 A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR GOOD

CAUSE AND UPON NOTICE APPROPRIATE IN THE CIRCUMSTANCES.

Rule 22.01A lawyer may withdraw his services in any of the followingcases:

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;


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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.

A lawyer may withdraw his services from his client only in the following

instances: (a) when a client insists upon an unjust or immoral conduct of his

case; (b) when the client insists that the lawyer pursue conduct violative of

the Code of Professional Responsibility; (c) when the client has two or more

retained lawyers and the lawyers could not get along to the detriment of

the case; (d) when the mental or physical condition of the lawyer makes him

incapable of handling the case effectively; (e) when the client deliberately

fails to pay the attorney's fees agreed upon; (f) when the lawyer is elected

or appointed to public office; (g) other similar cases.

The instant case does not fall under any of the grounds mentioned. Neither

can this be considered analogous to the grounds enumerated. As found by

the Commission on Bar Discipline, this case arose from a simple

misunderstanding between complainant and respondent. Complainant was

upset by respondent's absence at the hearing where bail was granted to the

suspected killers of her husband. She vehemently opposed the grant of bail.

It was thus a spontaneous and natural reaction for her to confrontrespondent with his absence. Her belligerence arose from her

overzealousness, nothing more. Complainant's words and actions may have

hurt respondent's feelings considering the work he had put into the case.

But her words were uttered in a burst of passion. And even at that moment,

complainant did not expressly terminate respondent's services. She made

this clear when she refused to sign his "Motion to Withdraw as Counsel."

Assuming, nevertheless, that respondent was justified in terminating his

services, he, however, cannot just do so and leave complainant in the cold

unprotected. The lawyer has no right to presume that his petition for