legal ethics to print

8/12/2019 Legal Ethics to Print

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ATTY. RICARDO M. SALOMON, JR., Complainant, - versus -ATTY. JOSELITO C. FRIAL,Respondent.

D E C I S I O N

VELASCO, JR., J .:

In his sworn complaint[1]filed before the Integrated Bar of thePhilippines (IBP) on December 22, 2006, complainant Atty. Ricardo M.Salomon, Jr. charged respondent Atty. Joselito C. Frial with violating hisLawyers Oath and/or gross misconduct arising from his actuations withrespect to two attached vehicles. Complainant, owner of the vehicles inquestion, asked that Atty. Frial be disbarred.

The instant complaint has its beginning in the case, Lucy Lo v.Ricardo Salomon et al., docketed as Civil Case No. 05-111825 before theRegional Trial Court in Manila, in which a writ of preliminary attachment wasissued in favor of Lucy Lo, Atty. Frials client. The writ was used to attachtwo (2) cars of complainanta black 1995 Volvo and a green 1993 NissanSentra.

According to Atty. Salomon, the attaching sheriff of Manila, instead ofdepositing the attached cars in the court premises, turned them over to Atty.Frial, Los counsel. Atty. Salomon claimed that on several occasions, theNissan Sentra was spotted being used by unauthorized individuals. Forinstance, on December 26, 2005, barangaycaptain Andrew Abundo saw theNissan Sentra in front of a battery shop on Anonas St., Quezon City. OnFebruary 18, 2006, Architect Roberto S. Perez and three others saw andtook video and photo shots of the same car while in the Manresa Shellstation at P. Tuazon Blvd. corner 20th Avenue, Quezon City. Also sometimein June 2006, Robert M. Perez, complainants driver, saw the said car inanother Shell station near Kamias Street. On December 16, 2006, ArleneCarmela M. Salomon spotted it driven by bondsman Ferdinand Liquiganallegedly with Atty. Frials consent. As Atty. Sa lomon further alleged, when

the misuse of the car was reported, paving for Liquigans apprehension, Atty.Frial, in a letter, acknowledged having authorized Liquigan to bring the carin custodia legisto a mechanic.

As to the Volvo, Atty. Salomon averred that during mediation, Atty.Frial deliberately withheld information as to its whereabouts. As it turned outlater, the Volvo was totally destroyed by fire, but the court was notimmediately put on notice of this development.

In his Answer,[2]

Atty. Frial admitted taking custody of the cars thru hisown undertaking, without authority and knowledge of the court. The subjectvehicles, according to him, were first parked near the YMCA building in front

of the Manila City Hall where they remained for four months. He said thatwhen he went to check on the vehicles condition sometime in December2005, he found them to have been infested and the wirings underneath thehoods gnawed by rats. He denied personally using or allowing others theuse of the cars, stating in this regard that if indeed the Nissan Sentra wasspotted on Anonas St., Quezon City on December 26, 2005, it could have

been the time when the car was being transferred from the YMCA.The February 18, 2006 and June 2006 sightings, so Atty. Frial claimed,possibly occurred when the Nissan Sentra was brought to the gas station tobe filled up. He said that the car could not have plausibly been spotted inProject 3 on December 13, 2006, parked as it was then in front of Liquiganshouse for mechanical check-up.

During the mandatory conference/hearing before the IBP Commissionon Bar Discipline, the parties agreed on the following key issues to beresolved: (1) whether or not Atty. Frial used the cars for his personal benefit;and (2) whether or not Atty. Frial was guilty of infidelity in the custody of theattached properties.

Thereafter and after the submission by the parties of their respectiveposition papers, the Commission submitted a Report dated October 9,2007 which the IBP Board of Governors forthwith adopted and thentransmitted to this Court. In the Report, the following were deduced from theaffidavits of Andrew Abundo, Roberto Perez, Robert Perez, and DanteBatingan: (1) at no time was Atty. Frial seen driving the Sentra; (2) Abundolearned that at that time the car was spotted at the battery shop, theunnamed driver bought a new battery for the car which was notinappropriate since a battery was for the preservation of the car; (3) Atty.Frial admitted that the Nissan Sentra was seen gassed up on February 18,2006 and in June 2006 and there was no reason to gas up the NissanSentra on those times unless it was being used; (4) Roberto Perez said theNissan Sentra was used to buy goats meat; and (5) photos of the NissanSentra in different places obviously showed it was being used by others.

In the same Report, the Commission observed that while there isperhaps no direct evidence tying up Atty. Frial with the use of the NissanSentra, the unyielding fact remains that it was being used by other personsduring the time he was supposed to have custody of it. In addition, whoeverdrove the Nissan Sentra on those occasions must have received the car keyfrom Atty. Frial. When Atty. Frial took custody of the Nissan Sentra andVolvo cars, he was duty bound to keep and preserve these in the samecondition he received them so as to fetch a good price should the vehiclesbe auctioned.

As to the burnt Volvo, Atty. Frial admitted receiving it in excellentcondition and that there was no court order authorizing him to remove the
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car from the YMCA premises. Admitted too was the fact that he secured therelease of the Volvo on the strength alone of his own writtenundertaking;

[3] and that the car was almost totally destroyed by fire

onFebruary 4, 2006 at 1:45 a.m.[4]while parked in his residence. He couldnot, however, explain the circumstances behind the destruction, but admittednot reporting the burning to the court or the sheriff. While the burning of the

car happened before the mediation hearing, Atty. Frial, upon inquiry of Atty.Salomon, did not give information as to the whereabouts of the cars.

The destruction of the Volvo in Atty. Frials residence was not anordinary occurrence; it was an event that could have not easily escaped hisattention. Accordingly, there is a strong reason to believe that Atty. Frialdeliberately concealed the destruction of said vehicle from the court duringthe hearings in Civil Case No. 05-111828, which were the opportune timesto reveal the condition of the Volvo car.

On the basis of the foregoing premises, the Commission concludedthat Atty. Frial committed acts clearly bearing on his integrity as a lawyer,adding that he failed to observe the diligence required of him as custodian of

the cars. The Commission thus recommended that Atty. Frial be suspendedfrom the practice of law for one (1) year.

The findings and the recommendation of the Commission are well-taken.

A writ of attachment issues to prevent the defendant from disposing ofthe attached property, thus securing the satisfaction of any judgment thatmay be recovered by the plaintiff or any proper party.

[5]When the objects of

the attachment are destroyed, then the attached properties wouldnecessarily be of no value and the attachment would be for naught.

From the evidence adduced during the investigation, there is noquestion that Atty. Frial is guilty of grave misconduct arising from hisviolation of Canon 11 of the Canons of Professional Ethicsthat states:

11.Dealing with trust property

The lawyer should refrain from any action wherebyfor his personal benefit or gain he abuses or takesadvantage of the confidence reposed in him by his client.

Money of the client or collected for the client orother trust property coming into the possession of thelawyer should be reported and accounted forpromptlyand should not under any circumstances becommingled with his own or be used by him. (Emphasisours.)

A lawyer is first and foremost an officer of the court. As such, he isexpected to respect the courts order and processes. Atty. Frial miserably fellshort of his duties as such officer. He trifled with the writ of attachment thecourt issued.

Very patently, Atty. Frial was remiss in his obligation of taking

good care of the attached cars. He also allowed the use of the NissanSentra car by persons who had no business using it. He did not inform thecourt or at least the sheriff of the destruction of the Volvo car. What is worseis that he took custody of them without so much as informing the court, letalone securing, its authority.

For his negligence and unauthorized possession of the cars, wefind Atty. Frial guilty of infidelity in the custody of the attached cars and gravemisconduct. We must mention, at this juncture, that the victorious parties inthe case are not without legal recourse in recovering the Volvos value fromAtty. Frial should they desire to do so.

The Court, nevertheless, is not inclined to impose, as complainant

urges, the ultimate penalty of disbarment. The rule is that disbarment ismeted out only in clear cases of misconduct that seriously affect thestanding and moral character of a lawyer as an officer of the court andmember of the bar.

[6]With the view we take of the case, there is no

compelling evidence tending to show that Atty. Frial intended to pervert theadministration of justice for some dishonest purpose.

Disbarment, jurisprudence teaches, should not be decreed whereany punishment less severe, such as reprimand, suspension, or fine, wouldaccomplish the end desired.

[7]This is as it should be considering the

consequence of disbarment on the economic life and honor of the erringperson. In the case of Atty. Frial, the Court finds that a years suspensionfrom the practice of his legal profession will provide him with enough time toponder on and cleanse himself of his misconduct.

WHEREFORE, Atty. Joselito C. Frial is adjudged guilty of gravemisconduct and infidelity in the custody of properties in custodia legis. He ishereby SUSPENDED from the practice of law for a period of one (1) yeareffective upon his receipt of this Decision
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DAVID L. ALMENDAREZ, JR.,complainant, vs. ATTY. MINERVO T.LANGIT,respondent.

D E C I S I O N

CARPIO,J.:

The Case

On 5 May 2004, David L. Almendarez, Jr. ("complainant") filed thiscomplaint-affidavit

1before the Integrated Bar of the Philippines (IBP),

seeking the disbarment of Atty. Minervo T. Langit ("respondent") for actsunbecoming a lawyer.

The facts are undisputed:

Complainant, as attorney-in-fact of his mother Pura Lioanag Vda. de

Almendarez, was the plaintiff in an ejectment case before the Municipal TrialCourt of Dagupan City, Branch 2 ("trial court"). Respondent served ascomplainant's counsel. While the case was pending, defendant RogerBumanlag ("Bumanlag") deposited monthly rentals for the property in disputeto the Branch Clerk of Court.

On 3 February 1994, the trial court rendered a decision in the ejectmentcase based on a compromise agreement executed by complainant andBumanlag. On 18 December 1995, the trial court issued an alias writ ofexecution for the satisfaction of the decision. A court order2dated 2 March2000 granted the Omnibus Motion for Execution and Withdrawal ofDeposited Rentals filed by respondent as complainant's counsel.Respondent filed a second motion for withdrawal of deposited rentals, which

the trial court also granted on 16 March 2000.

Sometime in May 2003, complainant learned that respondent was able towithdraw the rentals deposited by Bumanlag. Felicidad Daroy ("Daroy"),Officer-in-Charge Clerk of Court, confirmed this to complainant who receivedfrom Daroy copies of the two withdrawal slips drawn from the trial court'ssavings account. One slip dated 10 March 2000 was for P28,000,

3and

another slip dated 19 April 2000 was for P227,000.4Thus, respondent

received a total of P255,000, as evidenced by two receipts5signed by him.

The withdrawals were made through Daroy's authorized representativeAntonia Macaraeg, but Daroy personally delivered the money to respondent.Respondent did not inform complainant of these transactions.

Complainant, through his new counsel Atty. Miguel D. Larida, sentrespondent on 30 June 2003 a final demand letter for the accounting andreturn of the P255,000.6Respondent failed to reply.

Hence, complainant filed this case for disbarment against respondent forfailing to account for complainant's funds. Complainant further accusesrespondent of neglecting to pursue the implementation of the writ ofexecution issued in the ejectment case.

On 12 May 2004, IBP Director for Bar Discipline Rogelio A. Vinluan ("IBPDirector Vinluan") ordered respondent to submit his Answer to the complaint.Respondent did not file an answer despite receipt of the notice.

7

On 4 October 2004, IBP Investigating Commissioner Caesar R. Dulay ("IBPCommissioner Dulay") notified the parties to appear before him for amandatory conference on 15 November 2004, later reset to 17 January2005. Only complainant appeared at the conference, prompting IBPCommissioner Dulay to order the conference terminated and to declare that

respondent had waived his right to participate in the proceedings. IBPCommissioner Dulay directed the parties to file their respective positionpapers. Complainant submitted his position paper on 22 March 2005. Again,respondent took no action.

Findings and Recommendation of the IBP

On 8 June 2005, IBP Commissioner Dulay submitted his Report andRecommendation ("Report")

8with the finding that respondent failed to

account for money he held in trust for complainant. The Report consideredcomplainant's evidence "clear and convincing" enough to justify disciplinaryaction against respondent for violation of Rule 16.01 of the Code ofProfessional Responsibility. IBP Commissioner Dulay recommended that

respondent be declared guilty of gross misconduct and suspended for oneyear, aside from being ordered to render an accounting of the money he hadreceived.

In a Resolution9dated 17 December 2005, the IBP Board of Governorsapproved the Report, with the modification that the penalty of suspension beincreased to two years.

The Court's Ruling

We sustain the findings of the IBP.
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Respondent committed a flagrant violation of his oath when he received thesum of money representing the monthly rentals intended for his client,without accounting for and returning such sum to its rightful owner.Respondent received the money in his capacity as counsel for complainant.Therefore, respondent held the money in trust for complainant. The Code ofProfessional Responsibility ("Code") states:

CANON 16 A LAWYER SHALL HOLD IN TRUST ALL MONEYSAND PROPERTIES OF HIS CLIENT THAT MAY COME INTO HISPOSSESSION.

Rule 16.01A lawyer shall account for all money or propertycollected or received for or from the client.

Rule 16.03A lawyer shall deliver the funds and property to hisclient when due or upon demand. However, he shall have a lienover the funds and may apply so much thereof as may benecessary to satisfy his lawful fees and disbursements, giving

notice promptly thereafter to his client. He shall also have a lien tothe same extent on all judgments and executions he has securedfor his client as provided for in the Rules of Court.

Respondent should have immediately notified complainant of the trial court'sapproval of the motion to withdraw the deposited rentals. Upon release ofthe funds to him, respondent could have collected any lien which he hadover them in connection with his legal services, provided he gave promptnotice to complainant. A lawyer is not entitled to unilaterally appropriate hisclient's money for himself by the mere fact that the client owes him attorney'sfees.

10In this case, respondent did not even seek to prove the existence of

any lien, or any other right that he had to retain the money.

Respondent's failure to turn over the money to complainant despite thelatter's demands gives rise to the presumption that he had converted themoney for his personal use and benefit. This is a gross violation of generalmorality as well as of professional ethics, impairing public confidence in thelegal profession.

11More specifically, it renders respondent liable not only for

violating the Code but also for contempt, as stated in Section 25, Rule 138 ofthe Rules of Court:

SEC. 25. Unlawful retention of client's funds; contemptWhen anattorney unjustly retains in his hands money of his client after it hasbeen demanded he may be punished for contempt as an officer ofthe Court who has misbehaved in his official transactions; but

proceedings under this section shall not be a bar to a criminalprosecution.

Additionally, respondent failed to observe Canon 1712

of the Code, whichobligates the lawyer to take up the cause of his client with entire zeal anddevotion. It seems that after respondent received the withdrawn deposits, henever contacted complainant again. He did not pursue the implementation ofthe writ of execution issued in the ejectment case, to the prejudice ofcomplainant. By his inaction, respondent violated the trust and confidencereposed in him. For in agreeing to be complainant's counsel, respondentundertook to take all steps necessary to safeguard complainant's interest inthe case.

The misconduct of respondent is aggravated by his unjustified refusal toheed the orders of the IBP requiring him to file an answer to the complaint-affidavit and, afterwards, to appear at the mandatory conference. Althoughrespondent did not appear at the conference, the IBP gave him anotherchance to defend himself through a position paper. Still, respondent ignoredthis directive, exhibiting a blatant disrespect for authority. Indeed, he is justly

charged with conduct unbecoming a lawyer, for a lawyer is expected touphold the law and promote respect for legal processes .

13Further, a lawyer

must observe and maintain respect not only to the courts, but also to judicialofficers and other duly constituted authorities,

14including the IBP. Under

Rule 139-B of the Rules of Court, the Court has empowered the IBP toconduct proceedings for the disbarment, suspension, or discipline ofattorneys.

The relation of attorney and client is highly fiduciary, requiring utmost goodfaith, loyalty, and fidelity on the part of the attorney. Respondent miserablyfailed in this regard. Instead, he demonstrated a lack of integrity, care, anddevotion required by the legal profession from its members. Whenever alawyer is no longer worthy of the trust and confidence of the public, this

Court has the right and duty to withdraw his privilege as officer of the Courtand member of the Bar.

15

WHEREFORE,we find Atty. Minervo T. Langit GUILTYof violating Canons1, 11, 16, and 17 of the Code of Professional Responsibility.We SUSPEND respondent from the practice of law for two years effectiveupon finality of this Decision. We ORDERrespondent to RESTITUTE, within30 days from finality of this Decision, complainant'sP255,000, with interest at

12% per annum from 30 June 2003 until fully paid. We DIRECTrespondentto submit to the Court proof of payment within 15 days from payment of thefull amount.
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ANA A. CHUA and MARCELINA HSIA, compla inants, vs. ATTY. SIMEONM. MESINA, JR., respondent.

D E C I S I O N

PER CURIAM:

By a verified complaint[1]received by the Office of the Bar Confidant onMay 5, 1998,

[2]Ana Alvaran Chua and Marcelina Hsia administratively

charged Atty. Simeon M. Mesina, Jr., for breach of professional ethics, grossprofessional misconduct, and culpable malpractice.

As related by complainants, the following facts gave rise to the fil ing ofthe complaint.

Respondent was, for years, Ana Alvaran Chua and her now deceasedhusband Chua Yap Ans legal counsel and adviser upon whom they reposedtrust and confidence. They were in fact lessees of a building situated atBurgos Street, Cabanatuan City (Burgos property) owned by respondentsfamily, and another property containing an area of 854 sq. m., situated atMelencio Street, Cabanatuan City (Melencio property), also owned byrespondents family whereon they (spouses Chua) constructed theirhouse. These two properties were mortgaged by the registered owner,respondents mother Felicisima Melencio vda. de Mesina (Mrs. Mesina), infavor of the Planters Development Bank to secure a loan she obtained.

As Mrs. Mesina failed to meet her obligation to the bank, respondentconvinced complainant Ana Chua and her husband to help Mrs. Mesina byway of settling her obligation in consideration for which the Melencioproperty would be sold to them at P850.00/sq. m.

Accommodating respondents request, the spouses Chua and theirbusiness partner, herein co-complainant Marcelina Hsia, settled Mrs.Mesinas bank obligation in the amount ofP983,125.40.

A Deed of Absolute Sale dated January 19, 1985[3]conveying theMelencio property for P85,400.00 was thereafter executed by Mrs. Mesina,whose name appears therein as Felicisima M. Melencio, in favor ofcomplainants.

As complainants were later apprised of the amount of capital gains taxthey were to pay, they consulted respondent about it. Respondent thussuggested to them that another Deed of Absolute Sale should be executed,antedated to 1979 before the effectivity of the law mandating the payment ofcapital gains tax. As suggested by respondent, another Deed of AbsoluteSale antedated February 9, 1979

[4]was executed by Mrs. Mesina, whose

name again appears therein as Felicisima M. Melencio, in favor ofcomplainants wherein the purchase price was also indicated tobe P85,400.00.

After liquidating the advances made by the Chua spouses in theredemption of the MESINA properties, Mrs. Mesina was found to have an

existing balance due the spouses in the amount ofP400,000.00, on accountof which they advised respondent about it. Respondent, by Affidavit ofFebruary 18, 1986, acknowledged such obligation to be his and undertookto settle it within two years.

Complainants were subsequently issued on January 21, 1986 a titleover the Melencio property.

Not long after the execution of the February 9, 1979 Deed of AbsoluteSale or in February 1986, one Juanito Tecson (Tecson) filed anAffidavit

[5]dated February 20, 1986 before the Cabanatuan City Prosecutors

Office charging respondents mother, the spouses Chua, Marcelina Hsia andthe two witnesses to the said Deed of Absolute Sale, for Falsification ofPublic Document and violation of the Internal Revenue Code. In his

complaint affidavit, Tecson alleged that he was also a lessee of the Melencioproperty and was, along with the Chua spouses, supposed to purchase it butthat contrary to their agreement, the property was sold only to complainantand her co-complainant, to his exclusion. Tecson went on to relate that theFebruary 9, 1979 Deed of Absolute Sale did not reflect the true value of theMelencio property and was antedated to evade payment of capital gainstax.

Tecson submitted documents showing that indeed the July 9, 1979Deed of Absolute Sale was antedated.

Respondent thereupon hatched a plan to dodge the falsification chargeagainst Mrs. Mesina et al. He proposed to complainants that they wouldsimulate a deed of sale of the Melencio property wherein complainants

would resell it to Mrs. Mesina.Heeding the proposal of respondent, complainants executed a Deed of

Absolute Sale dated April 1, 1986[6]

conveying to Felicisima M. Melenciothe Melencio property for P85,400.00.

A new title was accordingly issued on April 4, 1986 in the name ofFelicisima M. Melencio, the owners copy of which was entrusted tocomplainants.

Tecson subsequently filed before the Cabanatuan City ProsecutorsOffice an Affidavit of Desistance dated September 5, 1986[7]alleging that hisfiling of the criminal complaint arose out of mere misunderstanding and
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difference with herein complainants and their co-respondents and he hadno sufficient evidence against them.

Some years later or on May 2, 1990, respondent approachedcomplainants and told them that he would borrow the owners copy of Mrs.Mesinas title with the undertaking that he would, in four months, let Mrs.

Mesina execute a deed of sale over the Melencio property in complainantsfavor. In fact, respondent gave complainants a written undertaking[8]

datedMay 2, 1990 reading:

Received the owners duplicate copy of TCT No. 4383 issued by theRegister of Deeds, Cabanatuan City registered in the name of FelicisimaMesina, widow, consisting of about 854 square meters more or less locatedat calle Melencio, Cabanatuan City from Mrs. Ana Chua and Marcelina Hsia.

I promise to and undertake to have the Deed of Sale of the above-mentioned property in favor of AnaChua and Marcelina Hsia to be signed by Mrs. Felicisima Mesina, within four(4) months from date hereof so that the above-mentioned property and title

maybe transferred in the name of Ana Chua and Macelina Hsia.(Underscoring supplied)

In the meantime, Mrs. Mesina died in the early part of 1991.

Despite respondents repeated promises to effect the transfer of titlein complainants name, he failed to do so. Complainants were later informedthat the Melencio property was being offered for sale to the public.

The spouses Chua and complainant Marcelina Hsia thus filed onAugust 24, 1992 a Complaint

[9]against respondent and his two siblings

before the Regional Trial Court (RTC) of Nueva Eci ja in Cabanatuan City, forDeclaration of Nullity of Sale and Reconveyance of Real Property.

As of the time of the filing of the present administrative complaint in1998, the civil case against the Mesina siblings was still pending.

This Court, by Resolution of July 13, 1998,[10]

directed respondent tofile Comment on the complaint within ten days.

By Resolution of December 2, 1998,[11]

this Court, noting that the copyof the Resolution of July 13, 1998 requiring respondent to comment on thecomplaint sent to him at his office address at S. M. Mesina Law Office, 30Jupiter St., Paseo de Roxas, Bel-Air Subd., Makati City was returnedunserved with the notation Moved, considered the Resolution of July 13,1998 served on respondent by substituted service pursuant to Rule 13,

Section 8 of the 1997 Rules of Civil Procedure. Respondent wasaccordingly deemed to have waived the filing of the required comment.

By the same Resolution of December 2, 1998, the case was referred tothe Integrated Bar of the Philippines (IBP) for investigation, report andrecommendation within ninety days.

The IBP, acting on the complaint, issued a notice of hearing onSeptember 14, 2001,

[12]copy of which was sent to respondent at his office

address via registered mail, covered by Registry Receipt No. 2605 of theMeralco Post Office.

[13]On the scheduled date of hearing, complainants

personally appeared with their counsel. Respondent failed to show up.

Given the length of time that the case remained pending from its filing,the IBP Commission on Bar Discipline, by Order of October 12,2001,

[14]directed complainants to just file their position paper with affidavits

and supporting documents in lieu of actual presentation of witnesses and toserve a copy thereof to respondent at his last known address.

In compliance with the IBP Order, complainants filed on April 1, 2002their position paper,

[15]annexed to which were photocopies of: 1) a May 5,

1993 Certification[16]issued by the Metrobank Cabanatuan Branch certifyingthat it issued the demand drafts to the payees enumerated below, whichwere debited from the account of Mr. Chua Yap An under Savings AccountNo. 760:

D/DNo. Payee Amount Date of Issue214597 Planters Dev.Bank P 805,299.54 12-19-85214760 Planters Dev.Bank 100,000.00 01-14-86214761 Atty. Simeon Mesina,

Jr. 77,826.10 01-14-86;2) Affidavit dated February 18, 1986[17]of respondent acknowledging a debtof P400,000.00 to complainant Ana Alvaran Chua and promising to payinterest thereon within 2 years to commence upon the signing thereof[February 16, 1998] and, in the event no partial or full payment of theprincipal is made within 2 years, Ana Alvaran Chua is under no obligation topay any lease rentals over the lot situated in Burgos Avenue, CabanatuanCity where the Oceanic Hardware Bldg. is erected; 3) Deed of AbsoluteSale dated January 19, 1985[18]and 4) Deed of Absolute Sale dated July 9,1979,

[19]both executed by Felicisima M. Melencio in favor of complainant;

5) TCT No. T-48114[20]

issued by the Cabanatuan City in the name ofcomplainants on January 21, 1986; 6) Affidavit of Juanito C. Tecson[21]dated
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January 20, 1986 charging complainants et al. for Falsification of PublicDocuments; 7) Deed of Absolute Sale dated April 1, 1986 executed bycomplainants in favor of Mrs. Mesina;

[22]and 8) TCT No. T-48383issued on

April 4, 1986 in the name of Felicisima M. Melencio;[23]and 9) Complaint of

spouses Chua Yap An and Ana Alvaran Chua and Marcelina Hsia, forDeclaration of Nullity of Deed of Sale and Reconveyance of Real Property

against respondent and his two siblings.[24]

A copy of complainants position paper was sent on March 18, 2002 torespondent at his office address by registered mail covered by RegistryReceipt No. 5278.

[25]There is no showing if respondent received this mail

matter.

The IBP once more scheduled, by notice of December 13, 2002 ,[26]

ahearing of the administrative case to January 15, 2003, copy of which noticewas sent to respondent at his office address by registered mail covered byRegistry Receipt No. 2953 issued by the Meralco Post Office.[27]

On the scheduled hearing on January 15, 2003, the IBP InvestigatingCommissioner, by Order of even date,

[28]noted the presence of

complainants, and the absence of respondent, copy of the notice of hearingto whom was returned unserved with the notation RTS-Moved. The casewas thereupon deemed submitted for report and recommendation.

On June 21, 2003, the IBP passed Resolution No. XV-2003-342[29]adopting and approving the report and recommendation of Atty.Rebecca Villanueva-Maala, the Investigating Commissioner of the case.

In her March 3, 2003 Report and Recommendation,[30]InvestigationCommissioner Maala observed as follows:

A lawyer should not engage or participate on any unlawful, dishonest,immoral or deceitful conduct. The moral character he displayed when heapplied for admission at the Bar must be maintained incessantly. Otherwise,

his privilege to practice the legal profession may be withdrawn from him(Rule 1.01, Code of Professional Responsibility). On the basis of theuncontroverted facts and evidence presented, respondentAtty. Simeon M.Mesina has committed gross misconduct which shows himto be unfit for the office and unworthy of the privilege which his license andlaw confer upon him,

and recommended that respondent be suspended for a period of One (1)Year.

This Court finds that indeed, respondent is guilty of gross misconduct.

First, by advising complainants to execute another Deed of AbsoluteSale antedated to 1979 to evade payment of capital gains taxes, he violatedhis duty to promote respect for law and legal processes,

28and not to abet

activities aimed at defiance of the law;29That respondent intended to, as hedid defraud not a private party but the government is aggravating.30

Second, when respondent convinced complainants to execute anotherdocument, a simulated Deed of Absolute Sale wherein they made it appearthat complainants reconveyed the Melencio property to his mother, hecommitted dishonesty.

31

Third, when on May 2, 1990 respondent inveigled his own clients, theChua spouses, into turning over to him the owners copy of his mothers titleupon the misrepresentation that he would, in four months, have a deed ofsale executed by his mother in favor of complainants, he likewise committeddishonesty.

That the signature of Felicisima M. Melencio in the 1985document

32and that in the 1979 document

33are markedly different is in fact

is a badge of falsification of either the 1979 or the 1985 document or even

both.A propos is this Courts following pronouncement inNakpil v. Valdez

34

As a rule, a lawyer is not barred from dealing with his clientbut the business transaction must be characterized with utmost honesty andgood faith. The measure of good faith which an attorney is required to exercise in hisdealings with his client is a much higher standard that is required inbusiness dealings where the parties trade at arms length. Businesstransactions between an attorney and his client are disfavored anddiscouraged by the policy of the law. Hence, courts carefully watch thesetransactions to assure that no advantage is taken by a lawyer over hisclient. This rule is founded on public policy for, by virtue of his office, anattorney is in an easy position to take advantage of the credulity and

ignorance of his client. Thus, no presumption of innocence or improbabilityof wrongdoing is considered in an attorneys favor.

35(Underscoring supplied)

Respondent having welched on his promise to cause the reconveyanceof the Melencio property to complainants, consideration of whether heshould be ordered to honor such promise should be taken up in the civilcase filed for the purpose, the issue there being one of ownership while thatin the case at bar is moral fitness.

37

In fine, respondent violated his oath of office and, more specifically, thefollowing canons of the Code of Professional Responsibility:
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CANON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEYTHE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW ANDLEGAL PROCESSES.

Rule 1.01. - A lawyer shall not engage in unlawful, dishonest, immoral ordeceitful conduct.

Rule 1.02. - A lawyer shall not counsel or abet activities aimed at defianceof the law or at lessening confidence in the legal system.

CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITYAND DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THEACTIVITIES OF THE INTEGRATED BAR.

Rule 7.03. - A lawyer shall not engage in conduct that adversely reflects onhis fitness to practice law, nor shall he, whether in public or private life,behave in a scandalous manner to the discredit of the legal profession.

CANON 15. A LAWYER SHALL OBSERVE CANDOR, FAIRNESS ANDLOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HISCLIENTS.

Rule 15.07. - A lawyer shall impress upon his client compliance with thelaws and the principles of fairness.

CANON 17. A LAWYER OWES FIDELITY TO THE CAUSE OF HISCLIENT AND HE SHALL BE MINDFUL OF THE TRUST ANDCONFIDENCE REPOSED IN HIM.

WHEREFORE, respondent ATTY. SIMEON M. MESINA, JR. is, for

gross misconduct, hereby DISBARRED.

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

SO ORDERED.


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NAZARIA S. HERNANDEZ (DECEASED), SUBSTITUTED BY LUCIANOS. HERNANDEZ, JR., compla inant, vs .ATTY. JOSE C.GO, respondent .

D E C I S I O N

PER CURIAM:

For our resolution is the verified letter-complaint[1]

for disbarmentagainst Atty. Jose C. Go dated June 23, 1975 filed by Nazaria S. Hernandez(now deceased). Both parties are from Zamboanga City.

The allegations in the letter-complaint are:

Sometime in 1961, complainants husband abandoned her and herson, Luciano S. Hernandez, Jr. Shortly thereafter, her husbands numerouscreditors demanded payments of his loans. Fearful that the variousmortgage contracts involving her properties will be foreclosed and aware ofimpending suits for sums of money against her, complainant engaged thelegal services of Atty. Jose C. Go, herein respondent.

Respondent instilled in complainant a feeling of helplessness, fear,embarrassment, and social humiliation. He advised her to give him her landtitles covering Lots 848-A, 849-Q, and 849-P at Zamboanga City so he couldsell them to enable her to pay her creditors. He then persuaded her toexecute deeds of sale in his favor without any monetary or valuableconsideration. Complainant agreed on condition that he would sell the lotsand from the proceeds pay her creditors.

Complainant also owned Lots 2118, 2139, and 1141-A, likewiselocated in Zamboanga City, which were mortgaged to her creditors. Whenthe mortgages fell due, respondent redeemed the lots. Again, he convincedher to execute deeds of sale involving those lots in his favor. As a result,respondent became the registered owner of all the lots belonging tocomplainant.

Sometime in 1974, complainant came to know that respondent did notsell her lots as agreed upon. Instead, he paid her creditors with his ownfunds and had her land titles registered in his name, depriving her of her realproperties worth millions.

In our Resolution dated September 24, 1975, respondent was requiredto file his comment on the complaint.

Instead of filing his comment, respondent submitted a motion todismiss on the ground that the complaint is premature since there is pending

before the then Court of First Instance of Zamboanga City Civil Case No.1781[2]for recovery of ownership and declaration of nullity of deeds of salefiled by complainant against him involving the subject lots.

On November 14, 1975, we issued a Resolution denying respondentsmotion and requiring him to submit his answer.

In his answer dated December 19, 1975, respondent denied theallegations in the instant complaint. He averred that he sold, in good faith,complainants lots to various buyers, including himself, for valuableconsideration. On several occasions, he extended financial assistance tocomplainant and even invited her to live with his family. His children used tocall her Lola due to her frequent visits to his residence. He prayed that thecomplaint be dismissed for failure to state a cause of action.

On January 17, 1977, we referred the case to the Office of the SolicitorGeneral (OSG) for investigation, report, and recommendation.

It was only on March 13, 1990 or after 13 years, 1 month and 26 daysthat the OSG filed a motion to refer the instant case to the IBP for theretaking of the testimonies of complainants witnesses and the submission of

its report and recommendation.

On April 4, 1990, we issued a Resolution referring the case to the IBPfor investigation, report, and recommendation.

The Report and Recommendation dated June 15, 2004 of Atty. LydiaA. Navarro, Commissioner of the IBP Commission on Bar Discipline, isquoted as follows:

A careful examination and evaluation of the evidence submitted by theparties showed that all the properties of the complainant are presentlyowned by the respondent by virtue of several deeds of sale executed by thecomplainant in favor of the respondent without monetary consideration

except Lot 849-D situated in Tomas Claudio which was returned by therespondent to the complainant on September 5, 1974.

It is evident from the records that respondent was the one who notarized thedocuments involving the said properties redeemed or repurchased by thecomplainant from her creditors which ended up in respondents name like inthe deed of sale executed by Victoriano Dejerano in favor of NazariaHernandez over Lots 1141-A-3-A and 1141-A-3-B; deed of sale executed byAntonio Masrahon on September 3, 1961regarding Lot No. 1141-A; deed ofabsolute sale executed by Francisco Esperat over the Curuan properties onNovember 9, 1971 and the cancellation of the mortgage executed by AlfonsoEnriquez on July 18, 1964 over the Tomas Claudio properties.
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The foregoing legal activities and operations of the respondent in addition tohis having discussed, advised and gave solutions to complainants legalproblems and liabilities to her creditors and even requested her creditors forextension of time to pay complainants accounts constitute practice of law aslegal counsel for consultation aside from representing complainant in othercases; a mute proof of a lawyer-client relations between them, a fact also

admitted by the respondent.

It is incumbent upon the respondent to have rendered a detailed report tothe complainant on how he paid complainants creditors without selling herproperties. Instead of selling to buyers at higher price, he paid them out ofhis own funds; then later on admitted that he was one of the purchasers ofcomplainants properties in utter disregard of their agreement and noevidence was submitted by the respondent concerning the value of the saidsale of complainants properties.

As such, respondent did not adhere faithfully and honestly in his obligationand duty as complainants legal adviser and counsel when he tookadvantage of the trust and confidence reposed in him by the complainant in

ultimately putting complainants properties in his name and possession inviolation of Canon 17 of the Code of Professional Responsibility.

WHEREFORE, in view of the foregoing, the undersigned respectfullyrecommends that respondent Atty. Jose C. Go be suspended from thepractice of law for a period of six (6) months from receipt hereof and the IBPChapter where he is a registered member be furnished a copy of the samefor implementation hereof, subject to the approval of the HonorableMembers of the Board of Governors.

On July 30, 2004, the IBP Board of Governors passed Resolution No.XVI-2004-39 adopting and approving the Report of Commissioner Navarrowith modification in the sense that the recommended penalty of suspensionfrom the practice of law was increased from six (6) months to three (3)years.

We sustain the Resolution of the IBP Board of Governors finding thatrespondent violated the Code of Professional Responsibility. However, wehave to modify its recommended penalty.

Canon 16 of the Code of Professional Responsibility, the principalsource of ethical rules for lawyers in this jurisdiction, provides:

A lawyer shall hold in trust all moneys and properties of his client thatmay come into his possession.

Respondent breached this Canon. His acts of acquiring for himselfcomplainants lots entrusted to him are, by any standard, acts constitutinggross misconduct, a grievous wrong, a forbidden act, a dereliction in duty,willful in character, and implies a wrongful intent and not mere error injudgment.[3] Such conduct on the part of respondent degrades not onlyhimself but also the name and honor of the legal profession. He violated this

Courts mandate that lawyers must at all times conduct themselves,especially in their dealing with their clients and the public at large, withhonesty and integrity in a manner beyond reproach.

[4]

Canon 17 of the same Code states:

A lawyer owes fidelity to the cause of his client and he shall bemindful of the trust and confidence reposed in him.

The records show that complainant reposed such high degree of trustand confidence in herein respondent, that when she engaged his services,she entrusted to him her land titles and allowed him to sell her lots, believingthat the proceeds thereof would be used to pay her creditors. Respondent,

however, abused her trust and confidence when he did not sell herproperties to others but to himself and spent his own money to pay herobligations. As correctly observed by Investigating IBP Commissioner LydiaNavarro, respondent is duty-bound to render a detailed report to thecomplainant on how much he sold the latters lots and the amounts paid toher creditors. Obviously, had he sold the lots to other buyers, complainantcould have earned more. Records show that she did not receive anyamount from respondent. Clearly, respondent did not adhere faithfully andhonestly in his duty as complainants counsel.

Undoubtedly, respondents conduct has made him unfit to remain in thelegal profession. He has definitely fallen below the moral bar when heengaged in deceitful, dishonest, unlawful and grossly immoral acts. Wehave been exacting in our demand for integrity and good moral character of

members of the Bar. They are expected at all times to uphold the integrityand dignity of the legal profession[5]and refrain from any act or omissionwhich might lessen the trust and confidence reposed by the public in thefidelity, honesty, and integrity of the legal profession.

[6]Membership in the

legal profession is a privilege.[7]

And whenever it is made to appear that anattorney is no longer worthy of the trust and confidence of his clients and thepublic, it becomes not only the right but also the duty of this Court, whichmade him one of its officers and gave him the privilege of ministering withinits Bar, to withdraw the privilege.

[8]Respondent, by his conduct, blemished

not only his integrity as a member of the Bar, but also the legal profession.
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Public interest requires that an attorney should exert his best effortsand ability to protect the interests of his clients. A lawyer who performs thatduty with diligence and candor not only protects his clients cause; he alsoserves the ends of justice and does honor to the bar and helps maintain therespect of the community to the legal profession.

It is a time-honored rule that good moral character is not only acondition precedent to admission to the practice of law. Its continuedpossession is also essential for remaining in the legal profession.[9]

Section 27, Rule 138 of the Revised Rules of Court mandates that alawyer may be disbarred or suspended by this Court for any of the followingacts: (1) deceit; (2) malpractice; (3) gross misconduct in office; (4) grosslyimmoral conduct; (5) conviction of a crime involving moral turpitude; (6)violation of the lawyers oath; (7) willful disobedience of any lawful order of asuperior court; and (8) willfully appearing as an attorney for a party withoutauthority to do so.[10]

InRayos-Ombac vs. Rayos,[11]

we ordered the disbarment of lawyerwhen he deceived his 85-year old aunt into entrusting him with all her money

and later refused to return the same despite demand. InNavarro vs.MenesesIII,[12]we disbarred a member of the Bar for his refusal or failure toaccount for the P50,000.00 he received from a client to settle acase. InDocena vs. Limson,

[13]we expelled from the brotherhood of

lawyers, an attorney who extorted money from his client through deceit andmisrepresentation. InBusios vs. Ricafort,

[14]an attorney was stripped of hislicense to practice law for misappropriating his clients money.

Considering the depravity of respondents offense, we find the penaltyrecommended by the IBP too light. It bears reiterating that a lawyer whotakes advantage of his clients financial plight to acquire the lattersproperties for his own benefit is destructive of the confidence of the public inthe fidelity, honesty, and integrity of the legal profession. Thus, for violationof Canon 16 and Canon 17 of the Code of Professional Responsibility, which

constitutes gross misconduct, and consistent with the need to maintain thehigh standards of the Bar and thus preserve the faith of the public in thelegal profession, respondent deserves the ultimate penalty, that of expulsionfrom the esteemed brotherhood of lawyers.

WHEREFORE, respondent JOSE S. GO is found guilty of grossmisconduct and is DISBARRED from the practice of law. His name isordered STRICKEN from the Roll of Attorneys EFFECTIVE IMMEDIATELY.

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

SO ORDERED.
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ERLINDA R. TAROG,Complainant,vs.ATTY. ROMULO L. RICAFORT,Respondent.

D E C I S I O N

PER CURIAM:

We resolve a complaint for disbarment for alleged grave misconduct broughtagainst Atty. Romulo L. Ricafort for his failure to account for and to returnthe sums of money received from his clients for purposes of the civil actionto recover their property from a foreclosing banking institution he washandling for them. The original complainant was Arnulfo A. Tarog, but hiswife, Erlinda R. Tarog, substituted him upon his intervening death.

Antecedents

In 1992, the Tarogs sought the advice of Atty. Jaime L. Miralles regarding

their bank-foreclosed property located in the Bicol Region. Atty. Mirallesadvised them to engage a Bicol-based attorney for that purpose. Thus, theywent to see Atty. Ricafort accompanied by Vidal Miralles, their friend whowas a brother of Atty. Miralles.

1They ultimately engaged Atty. Ricafort as

their attorney on account of his being well-known in the community, andbeing also the Dean of the College of Law of Aquinas University where theirson was then studying.

Having willingly accepted the engagement, Atty. Ricafort required the Tarogsto pay P7,000.00 as filing fee, which they gave to him.

2He explained the

importance of depositing P65,000.00 in court to counter the P60,000.00deposited by Antonio Tee, the buyer of the foreclosed property. After theyinformed him that they had onlyP60,000.00, he required them to add some

more amount (dagdagan niyo ng konti).3To raise the P65,000.00 for theTarogs, therefore, Vidal solicited a loan from one Sia with the guarantee ofhis brother Atty. Miralles. Sia issued a check in that amount in the name ofArnulfo.

4

On November 7, 1992, the Tarogs and Vidal went to the office of Atty.Ricafort to deliver the P65,000.00. When Arnulfo said that he had first toencash the check at the bank, Atty. Ricafort persuaded him to entrust thecheck to him instead so that he (Atty. Ricafort) would be the one to encash itand then deposit the amount in court. On that representation, Arnulfohanded the check to Atty. Ricafort.

5

After some time, the Tarogs visited Atty. Ricafort to verify the status of theconsignation. Atty. Ricafort informed them that he had not deposited theamount in court, but in his own account. He promised to return the money,plus interest. Despite several inquiries about when the amount would bereturned, however, the Tarogs received mere assurances from Atty. Ricafortthat the money was in good hands.

The Tarogs further claimed that the Regional Trial Court, Branch 52, inSorsogon (RTC), where their complaint for annulment of sale was beingheard, had required the parties to file their memoranda. Accordingly, theydeliveredP15,000.00 to Atty. Ricafort for that purpose, but he did not file thememorandum.

6

When it became apparent to the Tarogs that Atty. Ricafort would not makegood his promise of returning theP65,000.00, plus interest, Arnulfodemanded by his letter dated December 3, 2002 that Atty. Ricafort returntheP65,000.00, plus interest, and the P15,000.00 paid for the filing of thememorandum.7Yet, they did not receive any reply from Atty. Ricafort.

In his defense, Atty. Ricafort denied that the P65,000.00 was intended to bedeposited in court, insisting that the amount was payment for his legalservices under a "package deal," that is, the amount included hisacceptance fee, attorneys fee, and appearance fees from the filing of thecomplaint for annulment of sale until judgment, but excluding appeal. Heclaimed that the fees were agreed upon after considering the value of theproperty, his skill and experience as a lawyer, the labor, time, and troubleinvolved, and his professional character and social standing; that at the timehe delivered the check, Arnulfo read, understood, and agreed to thecontents of the complaint, which did not mention anything about anyconsignation;

8and that Arnulfo, being a retired school principal, was a

learned person who would not have easily fallen for any scheme like the onethey depicted against him.

Findings of the IBP Commissioner

Following his investigation, Commissioner Wilfredo E.J.E. Reyes of theIntegrated Bar of the Philippines-Commission on Bar Discipline rendered hisReport and Recommendation dated October 7, 2004,9in which heconcluded that:

It is respectfully recommended that respondent, Atty. Romulo L. Ricafort beDISBARRED and be ordered to return the amount of P65,000 and P15,000which he got from his client.
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RESPECTFULLY SUBMITTED.

Commissioner Reyes regarded the testimonies of Erlinda and Vidal morecredible than the testimony of Atty. Ricafort, observing:

Based on the said testimony, statements and actuations of complainantErlinda Tarog and his collaborating witness, we find their statements to becredible.

Atty. Ricafort in his testimony attempted to show that the amountof P65,000.00 was paid to him by the complainant as acceptance fee on apackage deal basis and under said deal, he will answer the filing fee,attorneys fees and other expenses incurred up to the time the judgment isrendered. He presented a transcript of stenographic notes wherein it wasstated that complainant himself did not consign the money in court. Therespondent admitted in his testimony that he did not have any retaineragreement nor any memorandum signed or any receipt which would provethat the amount of P65,000.00 was received as an acceptance fee for thehandling of the case.

Atty. Romulo Ricafort stated that there was no retainer agreement and thathe issued only receipt because the late Arnulfo Tarog will not pay unless areceipt is issued.

The Undersigned Commissioner asked the respondent "Basically youdescribe that thing that will happen in the litigation related to the payment offees. But when you received that P65,000.00 did you not put anything therethat you will describe the nature of legal work which you will undertakeconsidering that you have considered thisP65,000.00 as your attorneysfees? And Atty. Ricafort stated: Yes I did. I do not know why they were notshowing the receipt. That is a big amount, Your Honor. They demanded for

me the receipt of P30,000.00 how much more with that P65,000.00. Theydemanded for the receipt of that P65,000.00 but I cannot explain the reasonwhy

During the clarificatory questioning, the Undersigned Commissioner alsoasked Atty. Ricafort why he did not answer the demand letter sent by ArnulfoTarog and the proof of service of the said letter was presented by thecomplainant. Conveniently, Atty. Ricafort stated that he did not receive theletter and it was received by their helper who did not forward the letter tohim. He also adopted the position that the complainant was demandingtheP65,000.00 wherefore this case was filed. When confronted by thetestimony of Mr. Vidal Miralles, the respondent Atty. Ricafort just denied the

allegation that he received the P65,000.00 for deposit to the court. He alsodenied that Mr. Miralles has visited his residence for follow-up thereimbursement.

The Undersigned Commissioner asked the respondent if he has personalanimosity with Arnuldo Tarog, Erlinda Tarog and Vidal Miralles and if there

are any reason why this case was filed against him. In his answer therespondent stated that we have been very good friends for the past ten (10)years and he said that in fact he was surprised when the complaint was filedagainst him and they even attached the decision of the Supreme Court forhis suspension and maybe they are using this case to be able to collect fromhim.

The main defense of the respondent is that the complainant in this casetestified that the total amount to redeem his property is P240,000.00 andwhen asked whether he consigned the money to the court to redeem theproperty he answered in the negative.

The alleged payment of P65,000.00 was made prior to the said testimonysometime in 1992. Hence, it was stated on complainants affidavit that onNovember 7, 1992, prior to filing said complaint I had given him the sum ofSixty Five Thousand Pesos to be deposited to the Regional Trial Courtrepresenting redemption money of the Real Estate Mortgage. The amountof P65,000.00 is very much close to the amount of the principal obligation ofthe complainant and it is not surprising for a non-lawyer to hold on to thebelief that with the filing of the case for annulment of foreclosure his casewould be strengthened by making a deposit in court hence, the motivation toproduce the deposit was logical and natural insofar as the complainant isconcerned. The testimony of the complainant in court that the bankneeded P240,000.00 for the redemption of the property will have no bearingon the actuation of the complainant who has been required todeposit P65,000.00 by his lawyer. The Undersigned Commission has no

alternative but to believe in the credibility and truthfulness of complainantsnarration that of Mrs. Erlinda Tarog and Vidal Miralles.

10

Commissioner Reyes concluded that Atty. Ricafort violated Canon 15, andRules 16.01, 16.02 and 16.03 of Canon 16 of the Code of ProfessionalResponsibility by taking advantage of the vulnerability of his clients and bybeing dishonest in his dealings with them by refusing to return the amountof P65,000.00 to them.

On November 4, 2004, the IBP Board of Governors adopted Resolution No.XVI-2004-473,

11resolving to return the matter to Commissioner Reyes for a
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clarification of whether or not there was evidence to support the claim thatthe P65,000.00 had been in payment of attorneys fees and other expenses.

On October 11, 2005, Commissioner Reyes issued a second Report andRecommendation,

12in which he declared that Atty. Ricafort did not present

any retainer agreement or receipt to prove that the amount ofP65,000.00

had been part of his attorneys fees; that Atty. Ricafort had willfully ignoredthe demand of Arnulfo by not replying to the demand letter; that, instead,Atty. Ricafort had insisted that the househelp who had received the demandletter had not given it to him; and that in his (Commissioner Reyes)presence, Atty. Ricafort had also promised to the complainant that he wouldsettle his liability, but Atty. Ricafort did not make good his promise despiteseveral resettings to allow him to settle his obligation.

Action of IBP Board of Governors

Through Resolution No. XVII-2006-569,13

therefore, the IBP Board ofGovernors adopted and approved the Report and Recommendation ofCommissioner Reyes and recommended the disbarment of Atty. Ricafortand the order for him to return the amounts of P65,000.00 and P15,000.00to Erlinda, viz:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED andAPPROVED, the Report and Recommendation of the InvestigatingCommissioner of the above-entitled case herein made part of this Resolutionas Annex "A" and, finding the recommendation fully supported by theevidence on record and the applicable laws and rules, and considering thatRespondent has taken advantage of his client [sic] vulnerability and hasbeen dishonest with his dealings to his client, Atty. Romulo L. Ricafort ishereby DISBARRED and Ordered to Return the amount of P65,000and P15,000 to complainant.

Atty. Ricafort moved for reconsideration,14

maintaining that a retaineragreement was immaterial because he had affirmed having receivedthe P65,000.00 and having issued a receipt for the amount; that he had notkept the receipt because "the practice of lawyers in most instances is thatreceipt is issued without duplicate as it behooves upon the client to demandfor a receipt;"15that considering that the Tarogs had produced a photocopyof the receipt he had issued for the P30,000.00 in connection with theirappeal, it followed that a similar receipt for attorneys fees had been made atthe time when the case had been about to be filed in the RTC; that thetestimonies of Erlinda and Vidal were inconsistent with Arnulfos affidavit;and that he did not receive Arnulfos demand letter, which was received by

one Gemma Agnote (the name printed on the registry receipt), whom he didnot at all know.

Acting on Atty. Ricaforts motion for reconsideration, the IBP Board ofGovernors downgraded the penalty from disbarment to indefinitesuspension,16thus:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED andAPPROVED the Recommendation of the Board of Governors First Divisionof the above-entitled case, herein made part of this Resolution as Annex "A";and, finding the recommendation fully supported by the evidence on recordand the applicable laws and rules, the Motion for Reconsideration is herebyDENIED with modification of Resolution No. XVII-2006-509 of the Board ofGovernors dated 18 November 2006, that in lieu of the Disbarment of Atty.Romulo Ricafort, he is INDEFINITELY SUSPENDED from the practice oflaw and Ordered to return the amount of P65,000 and P15,000 tocomplainant.

Atty. Ricafort filed a second motion for reconsideration,17

assailing theresolution of the IBP Board of Governors for violating Section 12, Rule 139-Bof the Rules of Court requiring the decision of the IBP Board of Governors tobe in writing and to clearly and distinctly state the facts and reasons onwhich the decision was based.

Hence, the administrative case is now before the Court for resolution.

Ruling

We affirm the findings of the Commissioner Reyes, because they weresupported by substantial evidence. However, we impose the penalty ofdisbarment instead of the recommended penalty of indefinite suspension,

considering that Atty. Ricafort committed a very serious offense that wasaggravated by his having been previously administratively sanctioned for asimilar offense on the occasion of which he was warned against committinga similar offense.

A.Version of the complainants was more credible than version of Atty.Ricafort

Atty. Ricafort admitted receiving the P65,000.00 from the Tarogs. Even so,we have two versions about the transaction. On the one hand, the Tarogs
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