Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

A.C. No. 7297               September 29, 2009

IMELDA BIDES-ULASO, Complainant, vs.ATTY. EDITA NOE-LACSAMANA, Respondent.

D E C I S I O N

BERSAMIN, J.:

The decisive question to be resolved in this administrative proceeding is whether or not the notarization of the jurat of the amended verification and affidavit of non-forum shopping attached to the initiatory pleading even before the plaintiff-client has affixed her own signature amounts to censurable conduct on the part of the notary-counsel.

The Integrated Bar of the Philippines (IBP) found respondent Atty. Edita Noe-Lacsamana, the notary-counsel, guilty of gross negligence and of a violation of the Notarial Law; and recommended her suspension from the practice of law for six months.1 She now pleads her cause before us.2

Antecedents

The respondent was the counsel of Irene Bides (Bides) when the latter filed a civil action in the Regional Trial Court (RTC) in Pasig City against complainant Imelda Bides-Ulaso (Ulaso), her own niece; Alan Ulaso (Ulaso’s husband); Bartolome Bides (Ulaso’s father and Bides’ brother); the Register of Deeds of Region II, Metro Manila; and the Revenue District Office of San Juan, Metro Manila. The action was docketed as Special Civil Action (SCA) No. 2481 and raffled to Branch 167 of the RTC.

Bides amended the complaint on June 23, 2003 to demand the declaration of nullity of the deed of sale dated May 27, 1996 pertaining to the parcel of land situated in San Juan, Metro Manila of which Bides was the registered owner. Bides averred that Ulaso had taken her owner’s certificate of title during her absence from her residence and that Ulaso had then caused the transfer of the property to herself through the fraudulent execution of the deed of sale.3

The amended complaint of Bides contained a so-called amended verification and affidavit of non-forum shopping dated June 18, 2003, on which was a signature preceded by the word "for" above the printed name "IRENE BIDES." The signature bore a positive resemblance to the respondent’s signature as the notary on the jurat of the amended verification and affidavit of non-forum shopping.4 Seeing the defective execution of the amended verification and affidavit of non-forum shopping, Ulaso and her co-defendants filed a motion to dismiss on July 22, 2003,5 citing the defect as a ground, along with another.

Through the respondent as her counsel, Bides opposed the motion to dismiss on August 6, 2003, claiming an inadvertent mistake committed in relation to the signature appearing above the printed name of the affiant, but offering the excuse that the defective amended verification and affidavit of

non-forum shopping had actually been only a "sample-draft" intended to instruct Irene Mallari, the respondent’s new secretary, on where Bides, as affiant, should sign. Bides also claimed that the respondent’s signature above the printed name of the affiant had not been intended to replace the signature of Bides as the affiant; that the correct amended verification and affidavit of non-forum shopping to be appended to the amended complaint had been executed only on June 23, 2003 due to her (Bides) delayed arrival from her home province of Abra; and that Mallari had failed to replace the defective document with the correct amended verification and affidavit of non-forum shopping.6

The RTC denied the motion to dismiss and even declared Ulaso and her co-defendants in default. The RTC ultimately decided the action in favor of Bides, granting reliefs like the nullification of the deed of sale between Bides, as seller, and Ulaso, as buyer.7

On appeal, the Court of Appeals affirmed the RTC’s judgment.8

Bides and the respondent brought other proceedings against Ulaso. On September 26, 2003, Bides sued Ulaso and others for ejectment in the Metropolitan Trial Court (MeTC) in San Juan, Metro Manila, to evict them from the premises of Bides’ property subject of the RTC case.9 She next formally charged Ulaso and two others with falsification of a public document in the Manila Prosecutor’s Office for the execution of the nullified deed of sale, resulting in the criminal prosecution of Ulaso and the others before the MeTC, Branch 17, in Manila.10 The respondent actively prosecuted the criminal charge against Ulaso after being granted by the MeTC the express authority for that purpose pursuant to the Rules of Court.11 The respondent herself commenced disbarment proceedings in the IBP against Atty. Yolando Busmente, Ulaso’s counsel; and proceedings for usurpation against Elizabeth de la Rosa, for appearing as Ulaso’s other counsel although she had not been a member of the Philippine Bar.12 The disbarment proceedings against Atty. Busmente were docketed as CBD Case No. 05-1462.

To counteract the aforestated moves of Bides and the respondent, Ulaso initiated this proceeding against the respondent on March 2, 2005, praying for the latter’s disbarment due to her act of signing the amended verification and affidavit of non-forum shopping attached to the amended complaint of Bides and notarizing the document sans the signature of Bides and despite the non-appearance of Bides before her.13

On July 21, 2005, Bides and Ulaso entered into a compromise agreement to settle the criminal case for falsification, whereby Bides agreed to drop the criminal charge against Ulaso in exchange for, among others, Ulaso’s withdrawal of the disbarment complaint against the respondent.14 The MeTC, Branch 17, in Manila approved the compromise agreement.

The agreement on the dropping of the criminal case notwithstanding, the complaint for disbarment continued against the respondent. The IBP Committee on Bar Discipline designated Atty. Patrick M. Velez as Investigating Commissioner. After due hearing, Atty. Velez submitted his report and recommendation dated December 8, 2005,15 in which he rendered the following resolution and findings, viz:

IV. RESOLUTION AND FINDINGS

We are not impressed with the excuses presented by the respondent. The lapse committed by the respondent is clear based on the facts and pieces of evidence submitted in this case.

The respondent admits signing the questioned verification and there is also no dispute that she notarized the same. Even if her tale is true, the fact that she notarized her own signature is inexcusable. It cannot even be pardoned as a simple act of negligence as the standards set by

notarial law are stringent enough to require all notaries public to exercise caution in order to protect the integrity and veracity of documents.

We also cannot understand the fact that all the pleadings submitted to the court do not bear the corrected verification and certification. It may be easy to convince us that she is really innocent of the charges if at least one of those documents or even that one copy furnished to the other party in that case would bear at least one such corrected verification. But no, there was none at all. This certainly militates against the position that respondent lawyer took.

We have already stated earlier that lawyers may be disciplined for misconduct as a notary public, and now emphasize that the respondent can not even hide behind the mantle of good faith or throw blame to her secretary. Even as the Supreme Court stated that:

"If the document he notarized turned out to have been falsified, without the fact being known to him at the time, he may still be admonished for not taking pains to ascertain the identity of the person who acknowledged the instrument before him." (Cailing vs. Espinoza, 103 Phil. 1165)

Indeed, we may even consider her being grossly negligent in allowing her secretary to commit that error. She gave her secretary blanket authority where she should have exercise sufficient prudence to protect the integrity of her documents. "The burden of preparing a complete pleading falls on counsel’s shoulders, not on the messenger" (Tan v. Court of Appeals, 295 SCRA 765 [1998]) and not even on the secretary.1avvphi1

Besides, even if the story she tells us is true, it would appear that the document was pre-notarized based on the very averments made in Irene Mallari’s Affidavit of Merit when she stated that:

"3. Atty. Lacsamana was scheduled for an out-of-town trip on Monday, June 23, 2003, thus she hurriedly notarized another prepared set of Amended Verification dated June 23, 2003, and repeatedly told me to file the amended complaint not later than that afternoon to this Honorable Court after replacing its old June 18, 2003-Amended Verification;"

"4. Irene Bides arrived only after lunch and after her niece cause her to sign the amended verification, I replaced the last page of the sets of the Amended Complaint without knowing that I missed its original copy and the copy I hurriedly sent to the counsel for the respondent."

Respondent was not around when the document was signed by the respondent’s client. That is a violation of notarial law and deceitful conduct of the part of a lawyer, since he is notarizing a document which he did not actually witness being signed in his presence.

Even page 8 of the respondent’s notarial register will not help her in this case. All that it shows is the alleged document no. 36, but what about document no. 35 which should appear in page 7 of Book no. 1? The second document was notarized on another page and it is incumbent on the respondent to show that the same was really not recorded as such. The failure of respondent to present such evidence should be treated as disputable presumption that the same would be detrimental to his interests if so presented. Thus, when the circumstances in proof tend to fix the liability on a party who has it in his power to offer evidence of all facts as they existed and rebut the inference which the circumstances in proof tend to establish, and he fails to offer such proof, the natural conclusion is that proof if produced, instead of rebutting, would support the inference against him, and the court is justified in acting upon that conclusion (Herrera, Remedial Law, VI, 1999 ed p. 63 citing Worcester vs. Ocampo, 22 Phil. 42).

This commission feels that respondent is not being truthful with her defenses. The problem with using such unjustified excuses is that one lie will pile up over the other. Somewhere along the way, the story will leak out its sordid details exposing the excuse as a mere concocted tale and nothing more.

We have the impression that respondent is trying to mislead this Commission, which we cannot allow.

The issue in this case is really limited and focused on the signature and the notarization of the verification and certification against forum shopping for "Irene Bides". Does it constitute actionable misconduct? The other matters raised by the respondent have little bearing herein because it refers to other cases which she has against the complainant. But the causes of action are different so we will deign to entertain such other matters.

The practice of law is a privilege and respondent has gravely abused the same:

"The practice of law is a privilege burdened with conditions. Adherence to rigid standards of mental fitness, maintenance of the highest degree of morality and faithful compliance with the rules of the legal profession are the conditions required for remaining member of good standing of the bar and for enjoying the privilege to practice law. Any breach by lawyer of any of these conditions makes him unworthy of the trust and confidence which courts and clients must, by necessity, repose in him or unfit to continue in the exercise of his professional privilege. His misconduct justifies disciplinary action against him or the withdrawal of his privilege to practice law." (Agpalo, Legal Ethics, 1989 Ed., 392; citation of cases omitted.)

What is far worse is that the respondent has taken a habit of making such excuses for similar mistakes she committed. This Commission notes that the respondent herein is also a complainant in a different case against Atty. Yolando Busmente docketed as CBD case no. 05-1462. In that case, again no certification against non-forum shopping was made in that case, but instead of admitting the lack thereof (as it is not absolutely required in CBD cases) she went on to create a different story that her lawyer was negligent. Unfortunately said lawyer is already dead and cannot answer her accusations. She tried to pass off another set of certification which allegedly was not included with the original documents. What is however telling is that in all the seven (7) copies submitted to the CBD and that one (1) copy furnished to the respondents in that case, no such certification appears.

This unacceptable pattern of behavior compels us to recommend stricter measures to ensure that respondent lawyer is reminded of her solemn duty and obligation to be truthful and honest.

WHEREFORE, it is hereby recommended that the respondent lawyer, Atty. Edita Noe-Lacsamana be suspended from the practice of law for a period of not less than two (2) years and that she be required to take three (3) units of MCLE required legal ethics before she may be allowed to practice law again.16

In its Resolution No. XVII-2006-272 dated May 26, 2006, the IBP Board of Governors approved the report and recommendation of the Investigating Commissioner with modification,17 to wit:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and for notarizing a verification which she has executed, gross negligence and violation of the notarial law, Atty. Edita Noe-Lacsamana is hereby SUSPENDED from the practice of law for six (6) months.

Respondent’s Motion for Reconsideration

On August 29, 2006, the respondent came to the Court to seek the overturning of the IBP resolution, contending that:

I.

THE METED 6-MONTH SUSPENSION FROM THE LAW PRACTICE OF THE RESPONDENT IS REPUGNANT TO THE FAILURE OF THE COMPLAINANT TO SHOW PROOF OF HER ALLEGED GROSS NEGLIGENCE AND VIOLATION OF THE NOTARIAL LAW, AS EVENTUALLY SELF-MANIFESTED BY THE COMPLAINANT, WHO, ABSENT KNOWLEDGE OR INVOCATION OF THE RESPONDENT, WITHDREW HER INSTANT COMPLAINT, AS EMBODIED IN THE JULY 22, 2005-DECISION OF HON. GERMANO FRANCISCO D. LEGASPI OF BRANCH 17, METROPOLITAN TRIAL COURT OF MANILA.

II.

THE BLEMISH CAUSED ON THE MORE THAN 26-YEARS OF UNSULLIED REPUTATION OF THE RESPONDENT AS A LAWYER IS COMPELLING HER TO ENTREAT THE HONORABLE BAR CONFIDANT TO ASSESS AND RECONSIDER THE UNJUST AND SPECULATIVE PORTRAYAL OF INVESTIGATING COMMISSIONER PATRICK M. VELEZ IN HIS DECEMBER 8, 2005-REPORT AND RECOMMENDATION TO THE IBP, THAT RESPONDENT IS GUILTY OF DISHONESTY AND/OR GROSS NEGLIGENCE, WITH AN "UNACCEPTABLE PATTERN OF BEHAVIOR", WHICH ALTHOUGH NOT SPECIFIED, IS COMPATIBLE WITH A DEROGATORY CONCLUSION THAT SHE LACKS THE REQUIRED CANDOR, INTEGRITY AND PROFESSIONAL DECORUM OF A MEMBER OF THE BAR, IN REPUGNANCE TO THE MANDATE IN MANUBAY VS. GARCIA, 330 SCRA 237, THAT:

The lawyer’s guilt cannot be presumed. Allegation is never equivalent to proof and a bare charge cannot be equated with liability.

III.

THE FALLACIES OF THE COMPLAINANT WERE MISSED, DELIBERATELY OR OTHERWISE, IN THE INVESTIGATION OF THIS ADMINISTRATIVE CASE, PARTICULARLY ON THE FACT THAT THE COMPLAINT IS CONFINED ON A REHASH OF THE QUESTIONED AMENDED VERIFICATION AND AFFIDAVIT OF NON-FORUM SHOPPING, TWO (2) YEARS AFTER ITS DISPUTE WAS SETTLED AT THE LOWER COURT AND AT THE COURT OF APPEALS, THUS, FILED OUT OF RANCOR OF THE COMPLAINANT FOR HAVING LOST ALL HER CASES AGAINST THE RESPONDENT’S PRO BONOCLIENT, THUS, SHE WAS UNJUSTLY DENIED OF THE RULE IN SANTOS VS. DICHOSO, 84 SCRA 622, THAT:

"The success of a lawyer in his profession depends almost entirely on his reputation. Anything which will harm his good name is to be deplored. Private persons and particularly disgruntled opponents may not, therefore, be permitted to use the courts as vehicles through which to vent their rancor on members of the bar." (underscoring supplied)

Ruling

We affirm the findings against the respondent.

A. Preliminary Considerations

The respondent argues that this proceeding should be abated by virtue of its withdrawal by Ulaso pursuant to the compromise agreement concluded in the criminal case and approved by the trial court.

The respondent’s argument is unwarranted.

The agreement between Bides and Ulaso stipulating the withdrawal of the disbarment case against the respondent did not terminate or abate the jurisdiction of the IBP and of this Court to continue the present administrative proceeding against the respondent as a member of the Philippine Bar. We explained why in Rayos-Ombac v. Rayos,18 viz:

The affidavit of withdrawal of the disbarment case allegedly executed by complainant does not, in any way, exonerate the respondent. A case of suspension or disbarment may proceed regardless of interest or lack of interest of the complainant. What matters is whether, on the basis of the facts borne out by the record, the charge of deceit and grossly immoral conduct has been duly proven. xxx. 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. xxx.

The respondent next contends that we should reject the disbarment complaint because it was filed only after the lapse of two years from the occurrence of the cause; and that personal vendetta impelled its filing.

The respondent’s contention cannot be upheld.

Neither the lapse of time from the occurrence of the cause nor the motivation for the filing of the complaint diminished the Court’s inherent power to discipline a member of the Bar whenever appropriate. First of all, the ordinary statutes of limitation had no application to disbarment or suspension proceedings against members of the Bar.19 Indeed, such proceedings are sui generis. They are not akin to the trials of actions or suits in which interests and rights are enforced by the plaintiffs against the defendants, but are rather investigations into the conduct of the members of the Bar made by the Supreme Court within the context of its plenary powers expressly granted by the Constitution to regulate the practice of law.20 The proceedings, which the Court may even motu proprio initiate, have neither plaintiffs nor prosecutors. The public interest is their primary objective, the true question for determination being whether or not the respondent members of the Bar are still fit to be allowed to retain their memberships and to enjoy the privileges appurtenant to such memberships.21

B. Basis for Disciplinary Action

Ulaso insists that the respondent’s act of signing the amended verification and affidavit of non-forum shopping for Bides as plaintiff-affiant violated the penal law, the 1997 Rules of Civil Procedure, the Lawyer’s Oath, the Code of Professional Responsibility, and the Notarial Law.

In contrast, the respondent maintains that her signature was made not to fool the trial court, but only to illustrate to her new secretary how and where Bides should sign the form; and that the amended verification and affidavit of non-forum shopping, merely a "sample-draft," was wrongly attached.

Investigating Commissioner Velez found that the respondent had deliberately and with malice led the trial court to believe that her signature in the amended verification and affidavit of non-forum shopping had been that of Bides.

We regard the finding of deliberation and malice to be unjustified. The admitted precedence by the word "for" of the signature on the amended verification and affidavit of non-forum shopping was an indicium that the respondent did not intend to misrepresent the signature as that of Bides. The apparent resemblance of the signature after the word "for" with the respondent’s signature as the notary executing the jurat rendered improbable that the respondent had intended to deceive, considering that the respondent would have instead written the name Irene Bides or forged the signature of Bides had she wanted to pass the signature off as that of Bides.

The respondent, by notarizing the document sans the signature of Bides, was only anticipating that Bides would subsequently sign, because, after all, Bides had already signed the original verification and affidavit. Ostensibly, the amended verification and affidavit of non-forum shopping was intended to replace the original one attached to the initiatory pleading of Bides. Thus, bad faith did not motivate the respondent into notarizing the amended verification and affidavit of non-forum shopping.

The lack of bad faith notwithstanding, we nonetheless concur with the findings of Investigating Commissioner Velez that the respondent’s notarizing the amended verification and affidavit of non-forum shopping in the absence of Bides as the affiant constituted a clear breach of the notarial protocol and was highly censurable.22

The jurat is that end part of the affidavit in which the notary certifies that the instrument is sworn to before her. As such, the notarial certification is essential. Considering that notarization is not an empty, meaningless, routinary act,23 the faithful observance and utmost respect of the legal solemnity of the oath in the jurat are sacrosanct.24

Specifically, the notarial certification contained in the jurat of the amended verification and affidavit of non-forum shopping – "SUBSCRIBED AND SWORN TO BEFORE ME, on this 18th day of June 2003, affiant IRENE BIDES, showing to me her CTC Nos. 11833475 issued on November 21, 2002, in Manila"25 – indicated both the necessity for the physical presence of Bides as the affiant and the fact that the signing was done in the presence of the respondent as the notary. The physical presence of Bides was required in order to have her as the affiant swear before the respondent that she was that person and in order to enable the respondent as the notary to ascertain whether Bides had voluntarily and freely executed the affidavit.26 Thus, the respondent, by signing as notary even before Bides herself could appear before her, failed to give due observance and respect to the solemnity.

Being a lawyer commissioned as a notary, the respondent was mandated to discharge with fidelity the sacred duties appertaining to her notarial office. Such duties being dictated by public policy and impressed with public interest, she could not disregard the requirements and solemnities of the Notarial Law.27 It was emphatically her primary duty as a lawyer-notary to obey the laws of the land and to promote respect for the law and legal processes.28 She was expected to be in the forefront in the observance and maintenance of the rule of law. She ought to have remembered that a graver responsibility was placed upon her shoulders by virtue of her being a lawyer.29

1avvphi1

In imposing the penalty upon the respondent, however, we opt to reprimand her instead of suspending her from the practice of law for three months, as the IBP recommended. This we do after we take into account, firstly, the absence of bad faith in her notarizing the unsigned document; secondly, the fact that the infraction was the first lodged against her in her long years of membership

in the Bar; and thirdly, her recuperating from the debilitating stroke that had left her unable to perform any work since July 11, 2007.30

ACCORDINGLY, we modify the recommendation of the Integrated Bar of the Philippines by reprimanding respondent Atty. Edita Noe-Lacsamana, with a warning that a similar infraction in the future will be dealt with more severely.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

A.C. No. 8242               October 2, 2009

REBECCA J. PALM, Complainant, vs.ATTY. FELIPE ILEDAN, JR., Respondent.

D E C I S I O N

CARPIO, J.:

The Case

The case before the Court is a disbarment proceeding filed by Rebecca J. Palm (complainant) against Atty. Felipe Iledan, Jr. (respondent) for revealing information obtained in the course of an attorney-client relationship and for representing an interest which conflicted with that of his former client, Comtech Worldwide Solutions Philippines, Inc. (Comtech).

The Antecedent Facts

Complainant is the President of Comtech, a corporation engaged in the business of computer software development. From February 2003 to November 2003, respondent served as Comtech’s retained corporate counsel for the amount of P6,000 per month as retainer fee. From September to October 2003, complainant personally met with respondent to review corporate matters, including potential amendments to the corporate by-laws. In a meeting held on 1 October 2003, respondent suggested that Comtech amend its corporate by-laws to allow participation during board meetings, through teleconference, of members of the Board of Directors who were outside the Philippines.

Prior to the completion of the amendments of the corporate by-laws, complainant became uncomfortable with the close relationship between respondent and Elda Soledad (Soledad), a former officer and director of Comtech, who resigned and who was suspected of releasing unauthorized disbursements of corporate funds. Thus, Comtech decided to terminate its retainer agreement with respondent effective November 2003.

In a stockholders’ meeting held on 10 January 2004, respondent attended as proxy for Gary Harrison (Harrison). Steven C. Palm (Steven) and Deanna L. Palm, members of the Board of Directors, were present through teleconference. When the meeting was called to order, respondent

objected to the meeting for lack of quorum. Respondent asserted that Steven and Deanna Palm could not participate in the meeting because the corporate by-laws had not yet been amended to allow teleconferencing.

On 24 March 2004, Comtech’s new counsel sent a demand letter to Soledad to return or account for the amount of P90,466.10 representing her unauthorized disbursements when she was the Corporate Treasurer of Comtech. On 22 April 2004, Comtech received Soledad’s reply, signed by respondent. In July 2004, due to Soledad’s failure to comply with Comtech's written demands, Comtech filed a complaint for Estafa against Soledad before the Makati Prosecutor’s Office. In the proceedings before the City Prosecution Office of Makati, respondent appeared as Soledad’s counsel.

On 26 January 2005, complainant filed a Complaint1 for disbarment against respondent before the Integrated Bar of the Philippines (IBP).

In his Answer,2 respondent alleged that in January 2002, Soledad consulted him on process and procedure in acquiring property. In April 2002, Soledad again consulted him about the legal requirements of putting up a domestic corporation. In February 2003, Soledad engaged his services as consultant for Comtech. Respondent alleged that from February to October 2003, neither Soledad nor Palm consulted him on confidential or privileged matter concerning the operations of the corporation. Respondent further alleged that he had no access to any record of Comtech.

Respondent admitted that during the months of September and October 2003, complainant met with him regarding the procedure in amending the corporate by-laws to allow board members outside the Philippines to participate in board meetings.

Respondent further alleged that Harrison, then Comtech President, appointed him as proxy during the 10 January 2004 meeting. Respondent alleged that Harrison instructed him to observe the conduct of the meeting. Respondent admitted that he objected to the participation of Steven and Deanna Palm because the corporate by-laws had not yet been properly amended to allow the participation of board members by teleconferencing.

Respondent alleged that there was no conflict of interest when he represented Soledad in the case for Estafa filed by Comtech. He alleged that Soledad was already a client before he became a consultant for Comtech. He alleged that the criminal case was not related to or connected with the limited procedural queries he handled with Comtech.

The IBP’s Report and Recommendation

In a Report and Recommendation dated 28 March 2006,3 the IBP Commission on Bar Discipline (IBP-CBD) found respondent guilty of violation of Canon 21 of the Code of Professional Responsibility and of representing interest in conflict with that of Comtech as his former client.

The IBP-CBD ruled that there was no doubt that respondent was Comtech’s retained counsel from February 2003 to November 2003. The IBP-CBD found that in the course of the meetings for the intended amendments of Comtech’s corporate by-laws, respondent obtained knowledge about the intended amendment to allow members of the Board of Directors who were outside the Philippines to participate in board meetings through teleconferencing. The IBP-CBD noted that respondent knew that the corporate by-laws have not yet been amended to allow the teleconferencing. Hence, when respondent, as representative of Harrison, objected to the participation of Steven and Deanna Palm through teleconferencing on the ground that the corporate by-laws did not allow the participation, he made use of a privileged information he obtained while he was Comtech’s retained counsel.

The IBP-CBD likewise found that in representing Soledad in a case filed by Comtech, respondent represented an interest in conflict with that of a former client. The IBP-CBD ruled that the fact that respondent represented Soledad after the termination of his professional relationship with Comtech was not an excuse.

The IBP-CBD recommended that respondent be suspended from the practice of law for one year, thus:

WHEREFORE, premises considered, it is most respectfully recommended that herein respondent be found guilty of the charges preferred against him and be suspended from the practice of law for one (1) year.4

In Resolution No. XVII-2006-5835 passed on 15 December 2006, the IBP Board of Governors adopted and approved the recommendation of the Investigating Commissioner with modification by suspending respondent from the practice of law for two years.

Respondent filed a motion for reconsideration.6

In an undated Recommendation, the IBP Board of Governors First Division found that respondent’s motion for reconsideration did not raise any new issue and was just a rehash of his previous arguments. However, the IBP Board of Governors First Division recommended that respondent be suspended from the practice of law for only one year.

In Resolution No. XVIII-2008-703 passed on 11 December 2008, the IBP Board of Governors adopted and approved the recommendation of the IBP Board of Governors First Division. The IBP Board of Governors denied respondent’s motion for reconsideration but reduced his suspension from two years to one year.

The IBP Board of Governors forwarded the present case to this Court as provided under Section 12(b), Rule 139-B7 of the Rules of Court.

The Ruling of this Court

We cannot sustain the findings and recommendation of the IBP.

Violation of the Confidentiality of Lawyer-Client Relationship

Canon 21 of the Code of Professional Responsibility provides:

Canon 21. A lawyer shall preserve the confidence and secrets of his client even after the attorney-client relationship is terminated. (Emphasis supplied)

We agree with the IBP that in the course of complainant’s consultations, respondent obtained the information about the need to amend the corporate by-laws to allow board members outside the Philippines to participate in board meetings through teleconferencing. Respondent himself admitted this in his Answer.

However, what transpired on 10 January 2004 was not a board meeting but a stockholders’ meeting. Respondent attended the meeting as proxy for Harrison. The physical presence of a stockholder is not necessary in a stockholders’ meeting because a member may vote by proxy unless otherwise provided in the articles of incorporation or by-laws.8 Hence, there was no need for Steven and

Deanna Palm to participate through teleconferencing as they could just have sent their proxies to the meeting.

In addition, although the information about the necessity to amend the corporate by-laws may have been given to respondent, it could not be considered a confidential information. The amendment, repeal or adoption of new by-laws may be effected by "the board of directors or trustees, by a majority vote thereof, and the owners of at least a majority of the outstanding capital stock, or at least a majority of members of a non-stock corporation."9 It means the stockholders are aware of the proposed amendments to the by-laws. While the power may be delegated to the board of directors or trustees, there is nothing in the records to show that a delegation was made in the present case. Further, whenever any amendment or adoption of new by-laws is made, copies of the amendments or the new by-laws are filed with the Securities and Exchange Commission (SEC) and attached to the original articles of incorporation and by-laws.10 The documents are public records and could not be considered confidential. 1avvphi1

It is settled that the mere relation of attorney and client does not raise a presumption of confidentiality.11 The client must intend the communication to be confidential.12 Since the proposed amendments must be approved by at least a majority of the stockholders, and copies of the amended by-laws must be filed with the SEC, the information could not have been intended to be confidential. Thus, the disclosure made by respondent during the stockholders’ meeting could not be considered a violation of his client’s secrets and confidence within the contemplation of Canon 21 of the Code of Professional Responsibility.

Representing Interest in Conflict With the Interest of a Former Client

The IBP found respondent guilty of representing an interest in conflict with that of a former client, in violation of Rule 15.03, Canon 15 of the Code of Professional Responsibility which provides:

Rule 15.03 - A lawyer shall not represent conflicting interest except by written consent of all concerned given after a full disclosure of the facts.

We do not agree with the IBP.

In Quiambao v. Bamba,13 the Court enumerated various tests to determine conflict of interests. One test of inconsistency of interests is whether the lawyer will be asked to use against his former client any confidential information acquired through their connection or previous employment.14 The Court has ruled that what a lawyer owes his former client is to maintain inviolate the client’s confidence or to refrain from doing anything which will injuriously affect him in any matter in which he previously represented him.15

We find no conflict of interest when respondent represented Soledad in a case filed by Comtech. The case where respondent represents Soledad is an Estafa case filed by Comtech against its former officer. There was nothing in the records that would show that respondent used against Comtech any confidential information acquired while he was still Comtech’s retained counsel. Further, respondent made the representation after the termination of his retainer agreement with Comtech. A lawyer’s immutable duty to a former client does not cover transactions that occurred beyond the lawyer’s employment with the client.16 The intent of the law is to impose upon the lawyer the duty to protect the client’s interests only on matters that he previously handled for the former client and not for matters that arose after the lawyer-client relationship has terminated.17

WHEREFORE, we DISMISS the complaint against Atty. Felipe Iledan, Jr. for lack of merit.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

A.C. No. 7433               December 23, 2009[Formerly CBD Case No. 05-1554]

CESAR TALENTO and MODESTA HERRERA TALENTO, Petitioners, vs.ATTY. AGUSTIN F. PANEDA, Respondent.

D E C I S I O N

LEONARDO-DE CASTRO, J.:

Before us is the administrative complaint filed by mother and son Modesta Herrera Talento and Cesar Talento charging Atty. Agustin F. Paneda of violation of his oath as a lawyer and neglect of duty.

This case was initiated by petitioners with the filing of a Complaint1 before the Integrated Bar of the Philippines (IBP) on August 29, 2005. In the said Complaint, petitioners alleged the following:

"a. Sometime in October 17, 2000, a civil complaint was filed by Leticia Herrera. The same complaint was raffled to Regional Trial Court Branch 31, Agoo, La Union presided by Hon. Clifton U. Ganay;

b. This case was entitled: LETICIA HERERRA, Plaintiff vs. MODESTA H. TALENTO and CESAR TALENTO as Defendants for Quieting of Title, docketed as Civil Case No. A-2043;

c. [Petitioners] secured the services of Atty. Agustin Paneda to help and defend [them] in the aforementioned case. [Petitioners] paid the attorneys’ fees he required from [them] in order that [they] could avail of his services as counsel;

d. Atty. Paneda filed [petitioners’] answer to the complaint on November 14, 2000 and the case was set for pre-trial. The Honorable Court in an order required both parties’ counsels to submit their respective pre-trial briefs and appear during the scheduled pre-trial hearing on December 18, 2000;

e. Despite the order and notice to [their] counsel, he did not file or submit a pre-trial brief for [petitioners’] behalf. Much more to [their] surprise and predicament, although [petitioners] attended the pre-trial hearing, he did not appear;

f. As a result of his non-appearance, the counsel for the other party spoke of things beyond our knowledge which the Honorable Court granted being expressly stated and provided in the Rules of Court. [Petitioners] were declared in default because of the failure of [their] counsel to file and submit [petitioners’] pre-trial brief. The Honorable Court allowed the case to be heard ex parte much to our damage and prejudice;

g. The Honorable Court issued a decision against [petitioners] simply for failure of [their] counsel Atty. Paneda to submit [petitioners’] pre-trial brief and for his failure to attend the pre-trial of the case. It was simply because of technicality and not based on the merits of the allegations of both parties that [petitioners] lost the case;

h. Atty. Paneda filed a Motion for Reconsideration dated December 27, 2000, but the same was dismissed by the Honorable Court;

i. Atty. Paneda told [petitioners] that he will appeal the case to the Court of Appeals and [they] agreed because [they were] confident of [petitioners’] claim over the parcel of land subject of this case. He filed a notice of appeal on February 8, 2001. [Petitioners] paid the required fees and he even required [petitioners] to shell out more money for the preparation of the Appeal brief;

j. [Petitioners] waited for so long for the decision of the Honorable Court of Appeals and [petitioners] found out later that [petitioners’] appeal was dismissed due to lack of an appeal brief only when [petitioners] went to Atty. Paneda."2

In the Order3 dated August 30, 2005 issued by the IBP Commission on Bar Discipline (Commission), respondent was required to submit his Answer to the Complaint within fifteen (15) days from receipt of the notice. Respondent filed his Answer4 on October 24, 2005.

In his Answer, respondent states that he honestly believed that he had not violated his oath as a lawyer nor did he commit negligence in handling the case of the petitioners. He likewise avers that there were other considerations and incidents which had intervened in the case that produced adverse reactions. He cites as reason for the non-filing of the Pre-trial Brief the fact that, before the date set for pre-trial hearing, respondent was informed by petitioners that they had already entered into an Amicable Settlement with the plaintiff. Respondent advised petitioners to submit the said agreement to the Regional Trial Court (RTC) in lieu of the Pre-trial Brief. Respondent did not appear during the pre-trial conference scheduled in the morning of December 19, 2000 because he chose instead to attend the pre-trial conference of the replevin case involving his personal vehicle in Dagupan City which was also set on that same morning.5 With regard to his failure to file the required Appellants’ Brief before the Court of Appeals (CA), he points to his secretary’s oversight in promptly informing him of the latter’s receipt of the Notice of Submission of Appellants’ Brief.6 Respondent insists that he was not negligent in his practice but there were circumstances beyond his control and were unavoidable. He contends that petitioners should not altogether blame him but they should also accept that the debacle was due to their inaction.7

Petitioners refute the foregoing assertions of the respondent.8 They vehemently deny respondent’s claim that they allegedly informed him of the Amicable Settlement prior to the date of pre-trial hearing. In fact, they intended to show the document to him for the very first time at the pre-trial conference in which he did not appear. They likewise belie respondent’s claim that he gave instructions to petitioners on what to do during the pre-trial conference in his absence. They further deny respondent’s claim that he had informed them beforehand of his inability to attend due to a conflict of schedule. Granting that there was indeed a conflict of schedule, petitioners maintain that respondent is required by Rule 18, Sec. 6 of the Rules of Court9 to file the Pre-trial Brief at least three (3) days before the date of pre-trial conference. Finally, petitioners insist that, contrary to respondent’s assertion in his Answer, respondent did not exert his best efforts for his clients because, after negligently abandoning them at the RTC, respondent likewise failed to fulfill his duty of safeguarding their interests in the CA when respondent failed to perform a basic legal requirement of filing an Appeal Brief in order for the said court to take cognizance of their Appeal.

The parties were then required by the Commission to appear at a mandatory conference held on November 30, 2005. Petitioner Cesar Talento appeared together with his counsel, Atty. Matthew L. Dati. Co-petitioner Modesta Herrera Talento executed a Special Power of Attorney in favor of Cesar Talento and Atty. Dati. Respondent appeared on his behalf.

After the termination of the hearing, the parties were directed to file their respective verified position papers within ten (10) days from receipt of the Order10 and were informed that with or without said position papers, the case shall be deemed submitted for report and recommendation. Only petitioners submitted a Position Paper11 which was received by the Commission on January 4, 2009.

On April 28, 2006, Commissioner Rebecca Villanueva-Maala submitted her Report and Recommendation finding respondent guilty of gross violation of his duties as a lawyer and of inexcusable negligence with the recommendation that respondent be suspended from the practice of law for a period of one (1) year. The salient portion of the Report reads:

"Respondent’s failure to file complainants’ Pre-trial Brief, his failure to appear during the Pre-trial Conference because he has to attend to another case, his failure to file complainants’ Appeal Brief and his failure to inform complainants of the dismissal of the case at the Court of Appeals are in gross violation of his duties as a lawyer and show inexcusable negligence on his part.

His contention that he told complainants to present the Amicable Settlement agreed upon by the parties for the court’s appreciation does not excuse him of his obligation to his clients, much more his allegation that he advised complainants of the futility of the case. It should be noted that the Amicable Settlement was forged by the parties after the case was already filed in court, therefore the same has no legal effect.

The lawyer owes a duty to his client to be competent to perform the legal services which the lawyer undertakes on his behalf. The lawyer should serve his client in a conscientious, diligent and efficient manner and he should provide a quality of service at least equal to that which lawyers generally would expect of a competent lawyer in a like situation (citation omitted).

WHEREFORE, premises considered, we hereby recommend that respondent ATTY. AGUSTIN F. PANEDA beSUSPENDED for a period of ONE YEAR from receipt hereof from the practice of his profession as a lawyer and as a member of the Bar."12

On November 18, 2006, the IBP Board of Governors passed Resolution No. XVII-2006-495 adopting the aforequoted Investigating Commissioner’s Report and Recommendation, thus:

"RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A"; and finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering Respondent’s inexcusable negligence, Atty. Agustin F. Paneda is hereby SUSPENDED from the practice of law for one (1) year."13

The only issue to be resolved in this case is whether or not respondent committed gross negligence or misconduct in handling petitioners’ case both on trial in the RTC and on appeal in the CA which led to its dismissal without affording petitioners the opportunity to present their evidence.

After a careful consideration of the records of the instant case, this Court agrees with the IBP in its findings and conclusion that respondent’s documented acts fall extremely short of the standard of professional duty that all lawyers are required to faithfully adhere to.

The pertinent Canons of the Code of Professional Responsibility provide:

CANON 17 – A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM.

CANON 18 – A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.

x x x x x

Rule 18.02 – A lawyer shall not handle any legal matter without adequate preparation.

Rule 18.03 – A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable.

There is no doubt that respondent was woefully remiss in his duty to display utmost diligence and competence in protecting the interests of his clients. The records of this case clearly detailed dire instances of professional neglect which undoubtedly showed respondent’s failure to live up to his duties and responsibilities as a member of the legal profession. Petitioners lost Civil Case No. A-2043 in the RTC mainly because they were barred from presenting their evidence in court. This was a result of their being declared in default in the said case as a consequence of respondent’s failure to appear at the pre-trial conference. Respondent defended his non-appearance by stating that he had informed petitioners beforehand of a conflict of schedule and that he had instructed them on what to do in his absence, but petitioners vehemently denied this claim.

Even if we are to give credence to respondent’s justification, this does not excuse him from the fact that he was unable to file a Pre-trial Brief at least three (3) days prior to the scheduled pre-trial conference, as required by the Rules. Respondent alleges that he already prepared the Pre-trial Brief but did not push through with filing it because he was allegedly furnished by petitioner Modesta Herrera Talento with an Amicable Settlement that was forged between the parties before the Barangay Lupon of San Pedro, Agoo, La Union. He claims that he instructed his clients to present said document during the pre-trial conference as he had another hearing to attend.14 However, respondent’s excuse is untenable as any lawyer worth his salt would readily know that once a case has been filed in court, any amicable settlement between the parties must be approved by the court in order for it to be legally binding in accordance with Section 41615 of the Local Government Code of 1991 in relation to the last paragraph of Section 40816 of the same Code. Thus, he cannot assume that the case will be deemed closed by virtue of the supposed amicable settlement so as to excuse him from filing the Pre-trial Brief and from appearing at the pre-trial set by the court.

With regard to his subsequent error of failing to file the required Appeal Brief which led to the dismissal of his clients’ appeal before the CA, respondent did not give any plausible explanation other than merely placing the blame on the incompetence of his secretary in not promptly informing him about her receipt of the Notice of Submission of Appellants’ Brief.17 This mistake by respondent is exacerbated by the fact that he did not care to inform his clients of the dismissal of their appeal in 2002 and it was only in 2005 that his clients learned about this unfortunate turn of events.

It is beyond dispute that respondent is duty-bound by his oath as a lawyer to diligently prosecute the case of his clients to the best of his ability within the bounds of law. Regrettably, the facts of this case illustrate respondent’s dismal performance of that responsibility, which in its totality could amount to a reprehensible abandonment of his clients’ cause. 1avvphi1

A lawyer, when he undertakes his client’s cause, makes a covenant that he will exert all efforts for its prosecution until its final conclusion. He should undertake the task with dedication and care, and he should do no less, otherwise, he is not true to his lawyer’s oath.18

As held in the case of Vda. De Enriquez v. San Jose:19

The Code of Professional Responsibility in Rule 18.03 enjoins a lawyer not to neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable. A lawyer engaged to represent a client in a case bears the responsibility of protecting the latter’s interest with utmost diligence. It is the duty of a lawyer to serve his client with competence and diligence and he should exert his best efforts to protect, within the bounds of the law, the interest of his client. It is not enough that a practitioner is qualified to handle a legal matter; he is also required to prepare adequately and give the appropriate attention to his legal work.

In Balatbat v. Arias,20 the Court also held that:

It must be stressed that public interest requires that an attorney exert his best efforts in the prosecution or defense of a client’s cause. A lawyer who performs that duty with diligence and candor not only protects the interests of his client, he also serves the ends of justice, does honor to the bar and helps maintain the respect of the community to the legal profession. Lawyers are indispensable part of the whole system of administering justice in this jurisdiction. At a time when strong and disturbing criticisms are being hurled at the legal profession, strict compliance with one’s oath of office and the canons of professional ethics is an imperative.

Accordingly, for seriously prejudicing his clients’ interests due to inexcusable neglect of his professional duties as a lawyer, the IBP Investigating Commissioner recommended the suspension of respondent for one (1) year from the practice of law. The IBP Board of Governors acceded to this recommendation.

WHEREFORE, we find respondent Atty. Agustin F. Paneda GUILTY of violating Canons 17 and 18 as well as Rules 18.02 and 18.03 of the Code of Professional Responsibility. Accordingly, we SUSPEND respondent from the practice of law for ONE (1) YEAR effective upon finality of this Decision.

Let copies of this Decision be furnished the Office of the Bar Confidant, to be appended to respondent’s personal record as attorney. Likewise, copies shall be furnished to the Integrated Bar of the Philippines and all courts in the country for their information and guidance.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. 183975               September 20, 2010

GREGORIO DIMARUCOT y GARCIA, Petitioner vs.PEOPLE OF THE PHILIPPINES, Respondent.

R E S O L U T I O N

VILLARAMA, JR., J.:

For resolution in this petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, is the Resolution1 dated July 23, 2008 of the Court of Appeals (CA) in CA-G.R. CR No. 30466 denying petitioner’s omnibus motion to reconsider the August 29, 2007 Resolution dismissing his appeal, to expunge the same from the Book of Entries of Judgment, and to give petitioner a period of thirty (30) days within which to file the appellant’s brief.

The antecedents:

Petitioner is the accused in Criminal Case No. 98-M-98 for Frustrated Murder in the Regional Trial Court (RTC) of Malolos, Bulacan, under the following Information:

That on or about the 18th day of August, 1997, in the municipality of Malolos, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with an iron pipe and with intent to kill one Angelito Rosini y Go, did then and there wilfully, unlawfully and feloniously, with treachery and evident premeditation, attack, assault and hit with the said iron pipe the said Angelito Rosini y Go, hitting him on his head, thereby inflicting upon him physical injuries, which ordinarily would have caused the death of the said Angelito Rosini y Go, thus performing all acts of execution which should have produced the crime of murder as a consequence, but nevertheless did not produce it by reason of causes independent of his will, that is, by the timely and able medical assistance rendered to the said Angelito Rosini y Go which prevented his death.

Contrary to law.2

After trial, on September 11, 2006, the RTC promulgated its Decision3 convicting petitioner of frustrated homicide, and sentencing him as follows:

WHEREFORE, finding accused GREGORIO aka GEORGE DIMARUCOT y GARCIA liable of (sic) the lesser offense of Frustrated Homicide, this Court hereby sentences him to an indeterminate penalty of four (4) years and two (2) months and one (1) day, as minimum, to eight (8) years and one (1) day, as maximum, of imprisonment.

Accused is further directed to pay complainant Angelito Rosini y Go, actual damages broken down as follows: the amount of Nineteen Thousand One Hundred Ten Pesos and Sixty Five Centavos (P19,110.65) for the hospitalization/medical bills and the amount of Thirty Six Thousand Pesos (P36,000.00) as loss of income.

With costs against the accused.

SO ORDERED.4

Upon receiving the notice to file appellant’s brief, petitioner thru his counsel de parte requested and was granted additional period of twenty (20) days within which to file said brief.5 This was followed by three (3) successive motions for extension which were all granted by the CA.6 On August 29, 2007, the CA issued a Resolution dismissing the appeal, as follows:

Considering the JRD verification report dated July 24, 2007 that the accused-appellant failed to file his appellant’s brief within the reglementary period which expired on June 6, 2007, his appeal is

considered ABANDONED and thus DISMISSED, pursuant to Sec. 1 (e), Rule 50, 1997 Revised Rules of Civil Procedure.

SO ORDERED.7

Petitioner filed a motion for reconsideration,8 his counsel admitting that he was at fault in failing to file the appellant’s brief due to "personal problems emanating from his [counsel’s] wife’s recent surgical operation." It was thus prayed that the CA allow petitioner to file his appellant’s brief which counsel undertook to submit within seven (7) days or until October 4, 2007. By Resolution9 dated November 27, 2007, the CA, finding the allegations of petitioner unpersuasive and considering that the intended appellant’s brief was not at all filed on October 4, 2007, denied the motion for reconsideration. As per Entry of Judgment, the Resolution of August 29, 2007 became final and executory on January 4, 2008.10

On May 8, 2008, petitioner filed an Omnibus Motion (1) To Reconsider August 29, 2007 Resolution, (2) To Expunge The Same From Book Of Entries Of Judgment, and (3) To Give Accused-Appellant A Final Period Of Thirty Days To File Appellant’s Brief. Petitioner reiterated that his failure to file the appeal brief was solely the fault of his lawyer who is reportedly suffering from personal problems and depression. He also cited his advanced age (he will turn 76 on May 30, 2008) and medical condition (hypertension with cardiovascular disease and pulmonary emphysema), attaching copies of his birth certificate, medical certificate and certifications from the barangay and church minister.11

In the assailed Resolution dated July 23, 2008, the CA denied the omnibus motion holding that petitioner is bound by the mistakes and negligence of his counsel, such personal problems of a counsel emanating from his wife’s surgical operation are not considered mistake and/or negligence contemplated under the law as to warrant reconsideration of the dismissal of petitioner’s appeal for failure to file appellant’s brief. Thus, when appellant did not file a petition before this Court to assail the validity of the August 29, 2007 and November 27, 2007 resolutions, the August 29, 2007 resolution attained finality and entry of judgment thereof is in order.12

The petition has no merit.

Section 8, paragraph 1, Rule 124 of the Revised Rules of Criminal Procedure, as amended, provides:

SEC. 8. Dismissal of appeal for abandonment or failure to prosecute. – The Court of Appeals may, upon motion of the appellee or motu proprio and with notice to the appellant in either case, dismiss the appeal if the appellant fails to file his brief within the time prescribed by this Rule, except where the appellant is represented by a counsel de oficio.

x x x x

It is clear under the foregoing provision that a criminal case may be dismissed by the CA motu proprio and with notice to the appellant if the latter fails to file his brief within the prescribed time. The phrase "with notice to the appellant" means that a notice must first be furnished the appellant to show cause why his appeal should not be dismissed.13

In the case at bar, there is no showing that petitioner was served with a notice requiring him to show cause why his appeal should not be dismissed for failure to file appellant’s brief. The purpose of such a notice is to give an appellant the opportunity to state the reasons, if any, why the appeal

should not be dismissed because of such failure, in order that the appellate court may determine whether or not the reasons, if given, are satisfactory.14

Notwithstanding such absence of notice to the appellant, no grave abuse of discretion was committed by the CA in considering the appeal abandoned with the failure of petitioner to file his appeal brief despite four (4) extensions granted to him and non-compliance to date. Dismissal of appeal by the appellate court sans notice to the accused for failure to prosecute by itself is not an indication of grave abuse. Thus, although it does not appear that the appellate court has given the appellant such notice before dismissing the appeal, if the appellant has filed a motion for reconsideration of, or to set aside, the order dismissing the appeal, in which he stated the reasons why he failed to file his brief on time and the appellate court denied the motion after considering said reasons, the dismissal was held proper. Likewise, where the appeal was dismissed without prior notice, but the appellant took no steps either by himself or through counsel to have the appeal reinstated, such an attitude of indifference and inaction amounts to his abandonment and renunciation of the right granted to him by law to prosecute his appeal.15

Here, the Court notes the repeated non-observance by petitioner and his counsel of the reglementary periods for filing motions and perfecting appeal. While still at the trial stage, petitioner’s motion to admit and demurrer to evidence was denied as it was not seasonably filed (petitioner was granted fifteen (15) days from August 8, 2001 within which to file demurrer to evidence but filed his motion to dismiss only on September 4, 2001), in accordance with Section 23, Rule 119 of the Revised Rules of Criminal Procedure, as amended.16 Before the CA, petitioner and his counsel filed no less than four (4) motions for extension to file brief, which was never filed nor attached in the motion for reconsideration of the August 29, 2007 Resolution dismissing the appeal. The last extension given expired on June 6, 2007, without any brief submitted by petitioner or his counsel. And even when he filed the Omnibus Motion on May 8, 2008, still no appellant’s brief was attached by petitioner. Neither did petitioner file any petition before this Court questioning the validity of the August 29, 2007 resolution and the November 27, 2007 denial of his motion for reconsideration. The dismissal of his appeal having become final, it was indeed too late in the day for petitioner to file the Omnibus Motion on May 8, 2008, which was four (4) months after the finality of the resolution dismissing the appeal.

Having been afforded the opportunity to seek reconsideration and setting aside of the motu proprio dismissal by the CA of his appeal for non-filing of the appeal brief, and with his subsequent inaction to have his appeal reinstated after the denial of his motion for reconsideration, petitioner cannot impute error or grave abuse on the CA in upholding the finality of its dismissal order. Non-compliance with the requirement of notice or show cause order before the motu proprio dismissal under Section 8, paragraph 1 of Rule 124 had thereby been cured.17Under the circumstances, the petitioner was properly declared to have abandoned his appeal for failing to diligently prosecute the same.

Petitioner cannot simply harp on the mistakes and negligence of his lawyer allegedly beset with personal problems and emotional depression. The negligence and mistakes of counsel are binding on the client.18 There are exceptions to this rule, such as when the reckless or gross negligence of counsel deprives the client of due process of law, or when the application of the general rule results in the outright deprivation of one’s property or liberty through a technicality. However, in this case, we find no reason to exempt petitioner from the general rule.19The admitted inability of his counsel to attend fully and ably to the prosecution of his appeal and other sorts of excuses should have prompted petitioner to be more vigilant in protecting his rights and replace said counsel with a more competent lawyer. Instead, petitioner continued to allow his counsel to represent him on appeal and even up to this Court, apparently in the hope of moving this Court with a fervent plea for relaxation of

the rules for reason of petitioner’s age and medical condition. Verily, diligence is required not only from lawyers but also from their clients.20

Negligence of counsel is not a defense for the failure to file the appellant’s brief within the reglementary period. Thus, we explained in Redeña v. Court of Appeals:21

In seeking exemption from the above rule, petitioner claims that he will suffer deprivation of property without due process of law on account of the gross negligence of his previous counsel. To him, the negligence of his former counsel was so gross that it practically resulted to fraud because he was allegedly placed under the impression that the counsel had prepared and filed his appellant’s brief. He thus prays the Court reverse the CA and remand the main case to the court of origin for new trial.

Admittedly, this Court has relaxed the rule on the binding effect of counsel’s negligence and allowed a litigant another chance to present his case (1) where the reckless or gross negligence of counsel deprives the client of due process of law; (2) when application of the rule will result in outright deprivation of the client’s liberty or property; or (3) where the interests of justice so require. None of these exceptions obtains here.

For a claim of counsel’s gross negligence to prosper, nothing short of clear abandonment of the client’s cause must be shown. Here, petitioner’s counsel failed to file the appellant’s brief. While this omission can plausibly qualify as simple negligence, it does not amount to gross negligence to justify the annulment of the proceeding below. (Emphasis supplied.) 1avvphi1

The right to appeal is not a natural right and is not part of due process. It is merely a statutory privilege, and may be exercised only in accordance with the law. The party who seeks to avail of the same must comply with the requirements of the Rules. Failing to do so, the right to appeal is lost.22

Strict compliance with the Rules of Court is indispensable for the orderly and speedy disposition of justice. The Rules must be followed, otherwise, they will become meaningless and useless.23

WHEREFORE, the petition is DENIED for lack of merit. The Resolution dated July 23, 2008 of the Court of Appeals in CA-G.R. CR No. 30466 is AFFIRMED.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 164886               November 24, 2009

JOSE FELICIANO LOY, JR., RAYMUNDO HIPOLITO III, and EDGARDO RIDAO, Petitioners, vs.SAN MIGUEL CORPORATION EMPLOYEES UNION-Philippine Transport and General Workers Organization (SMCEU-PTGWO), as represented by its President Ma. PILAR B. AQUINO and SAN MIGUEL CORPORATION CREDIT COOPERATIVE, INC., as represented by its President Daniel Borbon,Respondents.

D E C I S I O N

DEL CASTILLO, J.:

Summary judgments are sanctioned by the Rules of Court as a device to simplify and expedite the resolution of cases when, as shown by pleadings, affidavits, depositions or admissions on the records, there are no genuine issues which would entail an expensive, lengthy and protracted trial. However, if there is a genuine issue of material fact which calls for the presentation of evidence, resort to summary judgment would not be proper. Stated otherwise, if there exists an issue of fact, the motion for summary judgment should be denied.

The instant case is not ripe for summary judgment because the determination of the amount of reasonable attorney’s fees requires presentation of evidence and a full-blown trial.

This Petition for Review on Certiorari1 assails the Decision2 dated September 29, 2003 of the Court of Appeals in CA-G.R. CV No. 66261. The Court of Appeals nullified the Decision3 rendered by the Regional Trial Court (RTC) of Manila, Branch 53, in Civil Case No. 93-67275, which granted the motion for summary judgment and ordered the release of the P3 million garnished funds in favor of petitioners Jose Feliciano Loy, Jr. (Loy, Jr.), Raymundo Hipolito III (Hipolito III) and Edgardo Ridao (Ridao), as payment for their claim for attorney’s fees.

Petitioners’ Factual Allegations

Petitioners filed a Complaint with Application for Preliminary Attachment4 for the collection of unpaid attorney’s fees for the legal services they rendered to respondent San Miguel Corporation Employees Union - Philippine Transport and General Workers Organization (SMCEU-PTGWO), herein referred to as the Union. Also impleaded as defendants in said complaint were Raymundo Hipolito, Jr. (Hipolito, Jr.), Efren Carreon (Carreon), Josefina Tongol (Tongol) and Pablo Dee (Dee), who were then the President, Vice-President, Treasurer and Auditor of the Union, respectively.

Petitioners averred that they acted as counsel for the Union in the negotiations of the 1992-1995 Collective Bargaining Agreement (CBA) between the management of three corporations (San Miguel Corporation, Magnolia Corporation and San Miguel Foods, Incorporated) and the Union. They claimed that the legal services they rendered to the Union amounted to at least P3 million. In support of their claim, petitioners presented Board Resolution No. 93-02-285 allegedly issued by the Union’s Board of Directors on February 27, 1993 where it was allegedly resolved that herein petitioners are entitled to 5% attorney’s fees based on the 10% assessment fee collected from union members and 10% agency fee collected from non-union members. Petitioners also alleged that pending resolution of the case, they are entitled to the protection of attachment of some of the Union’s properties.

On August 24, 1993, the RTC issued an Order6 attaching all the properties of the Union.

Respondents’ Factual Allegations

The Union, Carreon and Tongol filed a Motion to Discharge Writ of Attachment and Dismiss Complaint.7They alleged that Board Resolution No. 93-02-28 was not validly passed by the Union’s Board or ratified by the Union’s general membership. Carreon also alleged that no demand to pay attorney’s fees was made to the Union or any of the defendants and that petitioners had already been paid for their services.

On the other hand, defendants Hipolito, Jr. and Dee filed an Answer with Cross-Claim.8 They admitted that demand was made for the Union to pay attorney’s fees and that the Union was liable therefor. They, however, denied any personal liability over the same. They also claimed that Carreon

and Tongol have absconded with the Union’s money. Thus, by way of cross-claim, Hipolito, Jr. and Dee prayed that Carreon and Tongol be ordered to indemnify them in the event they shall be adjudged personally liable to pay petitioners.

By way of Reply with Counterclaim (to Answer with Cross Claim),9 Carreon and Tongol denied the allegations against them and reiterated their position regarding the defective board resolution.

Proceedings before the Regional Trial Court

On January 3, 1994, the RTC denied the Motion to Discharge Writ of Attachment and Dismiss Complaint.10In its Order dated January 4, 1994,11 the RTC ordered the garnishees – San Miguel Corporation, Magnolia Corporation, San Miguel Foods, Inc., and United Coconut Planters Bank (UCPB) – to deliver the garnished funds to the Clerk of Court, RTC-Manila. Meanwhile, San Miguel Corporation Credit Cooperative, Inc. (Credit Cooperative) moved to intervene in the case claiming that the garnished funds included cooperative dues, the seed capital of which appears to have come from the union funds. In its Answer in Intervention,12 the Credit Cooperative prayed for the lifting of the garnishment of its funds, arguing that said funds do not belong to or are owned by the Union but actually came from the individual share capital of its members.

On September 29, 1994, a Compromise Agreement13 was entered into by petitioners and Hipolito, Jr., the latter acting in his capacity as President of the Union and obligating the Union to pay petitioners’ claim for attorney’s fees in the reduced amount of P1.5 million. This Compromise Agreement, although initially approved by the RTC, was later on invalidated and set aside by the trial court on the ground of irregularities surrounding its execution.14

The case was then set for pre-trial conference.

Meanwhile, in a local union election of officers held on August 21,

1996, Ma. Pilar B. Aquino (Aquino) and Marcial A. Frisnedi (Frisnedi) were elected as the President and Vice-President, respectively. As newly elected officers of the Union, they filed a Motion for Substitution/Intervention,15 which was granted in an Order of the RTC dated May 7, 1997.16 The RTC also allowed the Union, under its new set of officers, to amend its answer to the complaint. As a result, an Answer with Counterclaim17 was filed on September 29, 1997.

The RTC ordered the garnished funds of the Union in the amount of P3 million to be deposited with the Philippine National Bank.18 On May 6, 1999, the trial court denied the Union’s motion to resume pre-trial and instead, set the trial of the case on June 17, July 1 and 15, 1999.19

However, on June 16, 1999, petitioners filed a Motion for Summary Judgment.20 They averred that the case was ripe for Summary Judgment because there was a judicial admission that legal services were indeed rendered which resulted to the benefits enjoyed by the workers in the 1992-1995 CBA.

The Union opposed the motion arguing that it only admitted the allegation in the complaint insofar as the benefits enjoyed by the workers in the 1992-1995 CBA are concerned but not the legal services allegedly rendered by petitioners. Further, it alleged that the amount claimed as attorney’s fees was unconscionable.

On September 14, 1999, the trial court rendered its Decision granting the motion for summary judgment. It held that the case was ripe for summary judgment in view of the Union’s admission,

through Hipolito, Jr., of its monetary obligation to petitioners in the amount of P3 million for the legal services they rendered. The dispositive portion of the Decision reads:

WHEREFORE, premises considered, the Motion for Summary Judgment is granted and judgment is hereby rendered in favor of the plaintiffs as alleged in their complaint.

The PNB, Escolta Branch, is therefore ordered to release immediately the Three Million Pesos (P3,000,000.00) garnished funds in the name of Regional Trial Court of Manila, Branch 53, in connection with Civil Case No. 93-67275 in favor of herein plaintiffs, in compliance with this judgment.

SO ORDERED.21

Proceedings before the Court of Appeals

The Union appealed to the Court of Appeals which rendered the assailed September 29, 2003 Decision,22nullifying the RTC’s Decision and remanding the case to the trial court for further proceedings. The appellate court noted that in the amended answer, the Union denied the legal services which petitioners claimed to have been rendered. It was also alleged therein that Hipolito, Jr. fraudulently executed the compromise agreement where he acceded, allegedly on behalf of the Union, to pay the reduced amount of P1.5 million as attorney’s fees. Moreover, it was claimed that Board Resolution No. 93-02-28 was not validly acted upon by the Board or ratified by the general membership of the Union. The P3 million attorney’s fees was also described as unconscionable. Finally, the intervenor Credit Cooperative denied that the Union owned the funds that were garnished. As found by the Court of Appeals, these were issues which required the presentation of evidence and which could only be resolved through full-blown trial and proceedings.

The dispositive portion of the Decision of the Court of Appeals reads:

WHEREFORE, finding merit in the appeal, the assailed decision of September 14, 1999 is NULLIFIED and SET ASIDE. Let the records be remanded to the court a quo for further proceedings.

SO ORDERED.23

Petitioners filed a motion for reconsideration but it was denied.

Issues

Hence, this petition anchored on the following grounds:

THE HONORABLE COURT OF APPEALS HAS DECIDED THE CASE CONTRARY TO LAW ON SUMMARY JUDGMENT AND TOTALLY IGNORING THE TWO (2) APPLICABLE AND SIMILAR DECISION24 AND RESOLUTION25 OF THE HONORABLE SUPREME COURT INVOLVING THE SAME PARTIES, SAME ISSUES AND/OR SAME INCIDENT.

THE HONORABLE COURT OF APPEALS ERRONEOUSLY RECOGNIZED INTERVENOR-RESPONDENT SAN MIGUEL CORPORATION EMPLOYEES CREDIT COOPERATIVE INC., CONTRARY TO LAW UNDER ARTICLE 242 (D) AND (F) OF THE LABOR CODE, AS AMENDED AND WHOSE IDENTITY TO BE THAT OF THE DEFENDANT UNION HAD ALREADY BEEN FINALLY RULED BY THE COURT A QUO.26

Petitioners contend that there are no genuine issues necessitating a full-blown trial in view of the Answer with Cross-Claim27 filed by Hipolito, Jr. and Dee, which essentially admitted all the allegations of the complaint. They argue that the Court of Appeals erred in holding that the Answer with Cross-Claim was superseded and replaced by the Amended Answer with Counterclaim28 filed by the Union through its new set of officers in 1997. They allege that their right to be compensated for their legal services and the reasonableness of the amount of their claim were already heard, tried and upheld in Hipolito, Jr. v. Ferrer-Calleja29 and Aquino and Frisnedi v. Atty. Raymundo Hipolito III. 30 Therefore, the controversy cannot anymore be heard again on the theory of conclusiveness of judgment. Finally, they claim that the Credit Cooperative has no locus standi before the Court of Appeals and this Court since it did not appeal from the RTC’s Decision as well as the RTC’s Order31 declaring that its funds were part of union funds and were, therefore, properly garnished. Hence, the Court of Appeals should not have remanded the case to the RTC but instead affirmed the September 14, 1999 Decision.

Our Ruling

The petition is partially meritorious.

The Answer with Counterclaim filed by Aquino and Frisnedi merely supplemented the Answer with Cross-Claim filed by Hipolito, Jr. and Dee; it cannot be deemed to have replaced the same.

The voluminous records of this case disclose that on September 23, 1993, an Answer with Cross-Claim32essentially admitting all the allegations of the Complaint33 was filed by defendants Hipolito, Jr. and Dee, as incumbent officers of the Union. Four years later, or on September 29, 1997, another Answer with Counterclaim34 was filed by the Union through its new set of officers. Petitioners contend that it was error for the Court of Appeals to consider the first answer as expunged by the subsequent answer filed by the new Union officers. In refutation, respondent Union asserts that the former answer has been superseded by its amended answer, which disputes the material allegations of the complaint.

On this point, we agree with petitioners’ contention that the first answer cannot be deemed to have been replaced by the subsequent answer filed by the new Union officers. Pleadings are amended in order to allege facts which occurred prior to the filing of the original pleading. An amended pleading supersedes the pleading that it amends.35 In the case at bar, the subsequent answer could neither validly amend the first answer nor result in the withdrawal of the latter. It is to be noted that the new Union officers, upon their election, moved for their intervention and substitution on the premise that they became the real party in interest since the defendants in the case have ceased to be the legal representatives of the Union. Certainly, their election as new officers is an occurrence which arose after the filing of the first answer. Hence, the purported amended answer should have been designated as a supplemental answer. A supplemental pleading states the transactions, occurrences or events which took place since the time the pleading sought to be supplemented was filed.36 A supplemental pleading is meant to supply deficiencies in aid of the original pleading and not to dispense with or substitute the latter. It does not supersede the original, but assumes that the original pleading is to stand.37 As such, the Answer with Counterclaim filed by Aquino and Frisnedi did not result in the withdrawal of the Answer with Cross-Claim filed by the original defendants in this case, but was merely supplemented by the subsequent answer.

There is an implied admission that petitioners rendered legal services to the Union.

The supplemental answer contains an averment that petitioners were already duly paid for their legal services as shown by a Statement of Receipt and Disbursements38 issued by the union officers confirming payment of petitioners’ legal fees. The same averment was likewise evident in the Motion

to Discharge Writ of Attachment and Dismiss Complaint39 filed by defendants Carreon and Tongol. Indubitably, even without considering the first answer, which admitted the allegations in the complaint, an implied admission that petitioners rendered legal services for the Union is apparent in the pleadings filed by the defendants in the case.

At any rate, the records of the case reveal that petitioners indeed took part in the negotiations for the consummation of the CBA. The letter of the Union President addressed to San Miguel Corporation dated July 8, 1992, regarding the Union’s CBA proposals for 1992,40 as well as the Minutes of the First CBA Negotiation Meeting held on July 23, 1992,41 indicated petitioners as members of the union negotiating panel. Furthermore, the Integrated Bar of the Philippines (IBP) confirmed petitioners’ representation for the Union in the 1992-1995 collective bargaining negotiations, as shown in an investigation conducted in connection with the disbarment case filed against petitioner Hipolito III.

Based on the foregoing, we find that petitioners indeed rendered legal services to the Union.

The absence of an express authority from the Board is not a bar to the recovery of attorney’s fees.

The validity of the board resolution put forth by petitioners as basis for their claim as well as the absence of a written agreement as to the amount of attorney’s fees were questioned. However, it is relevant to mention that in Hipolito, Jr. v. Ferrer-Calleja,42 we ruled that, notwithstanding the absence of an express authority from the board, a lawyer who represented the union with the knowledge and acquiescence of the board, and the acceptance of benefits arising from the service rendered, is entitled to a reasonable value of his professional services on a quantum meruit basis. This finds application in this case considering that the record establishes clearly that petitioners acted as union counsel in the negotiation and consummation of the 1992-1995 CBA and that the benefits from the CBA had been enjoyed by the Union.

In Research and Services Realty, Inc. v. Court of Appeals,43 we enunciated that quantum meruit simply means "as much as he deserves." In no case, however, must a lawyer be allowed to recover more than what is reasonable, pursuant to Section 24, Rule 138 of the Rules of Court.44

The determination of the amount of reasonable attorney’s fees would require presentation of evidence and a full-blown trial.

The Rules of Court allows the rendition of a summary judgment if the pleadings, supporting affidavits, depositions and admissions on file, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.45 There can be no summary judgment where questions of fact are in issue or where material allegations of the pleadings are in dispute.46

In fixing a reasonable compensation for the services rendered by a lawyer on the basis of quantum meruit, the elements to be considered are generally (1) the importance of the subject matter in controversy, (2) the extent of services rendered and (3) the professional standing of the lawyer. A determination of these factors would indispensably require nothing less than a full-blown trial where the party can adduce evidence to establish the right to lawful attorney's fees and for the other party to oppose or refute the same.47

The Union considers the attorney’s fees in the amount of P3 million as unreasonable, unconscionable and without basis. In fixing said amount of attorney’s fees, the RTC ratiocinated that the issue of the reasonableness of the amount claimed as attorney’s fees had been heard by the IBP in the disbarment case. It also relied on the testimony given by Ms. Oswalda Abuerne (Abuerne), the Credit Cooperative’s bookkeeper, on October 4, 1994, as follows:

Q Now, according to your earlier statement in open Court you said that P589,992.83 of the money now in the possession of the San Miguel Corporation Employees Credit Cooperative, Inc., came from union members?

A Yes, sir.

Q How did you happen to collect these from the union members, to receive these from the union members?

A Based on the records of the cooperative, I think it was 1990 CBA, that the union, I mean, there is an agreement between the members, that the members of the union, I think all the employees of the San Miguel Corporation signed an agreement that the lump sum money they will receive they will give five (5%) percent for attorney’s fee and that five (5%) percent, 4% is for attorney’s fee and one (1%) percent is for the seed capital of the cooperative.48

Based on this testimony, the RTC concluded that:

The question of unconscionableness of P3,000,000,00 Attorney’s fees of Atty. Hipolito has been heard and tried by the Integrated Bar of the Philippines. Hence, all defenses and claims of defendant Union now through the new president Aquino shall be dismissed under Section 7, Rule 9, 1997 Rules of Civil Procedure necessitating a Summary judgment, attaching therewith the various transcripts of stenographic notes of the Integrated Bar of the Philippines. That there is [sic] no more triable issues otherwise what was heard by the IBP on unconscionable attorney’s fees would be heard again. That if the defendant Union in 1990 prior to the instant case paid a single lone-lawyer of the Union of 5% broken down as follows: 4% (2.3 Million as Attorney’s fees) and 1% (670,799.52 as seed capital of the Union’s cooperative) as shown in the Court’s T.S.N. dated October 4, 1994; the defendant Union can not now claim the P3 Million Attorney’s fees for three (3) lawyers with a higher and subsequent 1993 CBA benefits as unconscionable.49

We find that the RTC erroneously ruled on this matter. First, it does not appear from the Report and Recommendation50 of Commissioner Jaime M. Vibar, the IBP Commissioner who tried the disbarment case, that a pronouncement was made as to how much Hipolito III (petitioner herein) should receive as attorney’s fees. The IBP merely sustained Hipolito III’s entitlement to compensation for acting as union counsel in collaboration with Loy, Jr. and Ridao (co-petitioners herein) in concluding the 1992-1995 CBA, but refused to fix an amount as the matter was already being heard in court. Second, the testimony of Abuerne was unsubstantiated by evidence, thereby making her an incompetent witness to testify on such matters. The records of the Credit Cooperative were not presented to substantiate Abuerne’s statements. The lawyer who was allegedly paid P2.3 million attorney’s fees in 1990 was not also presented to testify. No proof was proffered to show that Hipolito III was entitled to or actually received the amount. Hence, the RTC arbitrarily fixed petitioners’ attorney’s fees at P3 million despite insufficient factual basis.

When material allegations are disputed, it cannot be asserted that there is no real issue necessitating a formal trial.51 We deem it necessary, therefore, that further inquiry should be made in order for petitioners to prove the extent of the services they rendered, the time they consumed in the negotiations and such other matters necessary for the determination of the reasonable value of their services.

Mindful that the instant case has been pending for more than a decade, we painstakingly reviewed the records. Unfortunately, we find them inadequate and insufficient to determine the reasonableness of the amount claimed or to fix, for that matter, a reasonable amount of attorney’s fees in order to finally resolve the present controversy. Thus, in order to adequately afford both

parties ample opportunity to present their evidence in support of their respective claims, a remand is inevitable, but only for the purpose of determining the reasonable amount of attorney’s fees on quantum meruit basis.

The imposition of interest on the amount claimed is not warranted.

The imposition of any interest, as prayed for in this instant petition, on any amount payable to petitioners is, however, unwarranted. Contracts for attorney’s services are unlike any other contracts for the payment of compensation for any other services which allow the imposition of interest in case of delay under the provisions of the Civil Code.52 The practice of law is a profession, not a moneymaking venture.53

The Credit Cooperative has no locus standi for failure to file an appeal.

Petitioners correctly argue that the Credit Cooperative has no locus standi on appeal, since it failed to file a notice of appeal to the RTC’s September 14, 1999 Decision granting the motion for summary judgment. It was only the Union which appealed the case through a notice of appeal filed by its counsel, Atty. Luciano R. Caraang (Atty. Caraang). There is also no showing that Atty. Caraang represented both the Union and the Credit Cooperative in filing such notice of appeal. In fact, the Credit Cooperative did not deny its failure to file an appeal; however, it argued that it filed with the Court of Appeals an appellant’s brief in compliance with the appellate court’s directive to submit one. Suffice it to state that the Court of Appeals’ directive for the Credit Cooperative to file its brief did not clothe the Credit Cooperative with locus standi on appeal. The purpose of the filing of the brief is merely to present, in coherent and concise form, the points and questions in controversy, and by fair argument on the facts and law of the case, to assist the court in arriving at a just and proper conclusion.54 The Court of Appeals may have ordered the Credit Cooperative to submit its brief to enable it to properly dispose of the case on appeal. However, in the Credit Cooperative’s brief, not only did it ask for the reversal of the Summary Judgment but also prayed for the return of its garnished funds. This cannot be allowed. It would be grave error to grant the relief prayed for without violating the well-settled rule that a party who does not appeal from the decision may not obtain any affirmative relief from the appellate court other than what he has obtained from the lower court, if any, whose decision is brought up on appeal.55 The rule is clear that no modification of judgment could be granted to a party who did not appeal.56

WHEREFORE, the petition is PARTIALLY GRANTED. The Decision of the Court of Appeals is AFFIRMEDwith MODIFICATION that the case is ordered remanded to the court of origin for further trial but only for the purpose of fixing the petitioners’ attorney’s fees (without interest) on quantum meruit basis, to be conducted with deliberate dispatch in accordance with this Decision.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

A.C. No. 6166               October 2, 2009

MARIA EARL BEVERLY C. CENIZA, Complainant, vs.ATTY. VIVIAN G. RUBIA, Respondent.

D E C I S I O N

YNARES-SANTIAGO, J.:

In a verified complaint1 dated July 25, 2003 filed with the Office of the Bar Confidant, Maria Earl Beverly C. Ceniza charged Atty. Vivian G. Rubia with grave misconduct, gross ignorance of the law and falsification of public documents.

The facts of the case are as follows:

On May 3, 2002, complainant sought the legal services of the respondent in regard to the share of her mother-in-law in the estate of her husband Carlos Ceniza. As she had no money to pay for attorney’s fees since her mother-in-law would arrive from the United States only in June 2002, respondent made her sign a promissory note for P32,000.00, which amount was lent by Domingo Natavio. After her mother-in-law arrived and paid the loan, respondent furnished them a copy of the complaint for partition and recovery of ownership/possession representing legitime but with no docket number on it. They kept on following up the progress of the complaint. However, three months lapsed before respondent informed them that it was already filed in court. It was then that they received a copy of the complaint with "Civil Case No. 4198" and a rubber stamped "RECEIVED" thereon. However, when complainant verified the status of the case with the Clerk of Court of the Regional Trial Court of Davao del Sur, she was informed that no case with said title and docket number was filed.2

Further, complainant alleged that respondent was guilty of gross ignorance of the law for intending to file the complaint in Davao del Sur when the properties to be recovered were located in Koronadal, South Cotabato and Malungon, Sarangani Province, in violation of the rule on venue that real actions shall be filed in the place where the property is situated. Complainant also alleged that respondent forged the signature of her husband, Carlito C. Ceniza, in the Affidavit of Loss attached to a petition for the issuance of a new owner’s duplicate certificate of title filed with the Regional Trial Court (RTC) of Digos City, Branch 20, in Misc. Case No. 114-2202.3

In her comment, respondent assailed the personality of the complainant to institute the administrative complaint for disbarment as she was not a party to the action for partition and recovery of ownership/possession. As such, her allegations in the administrative complaint were all hearsay, self-serving and unsubstantiated. Further, the charge of forgery of the Affidavit of Loss was belied by the March 3, 2003 decision of the trial court, wherein Carlito C. Ceniza affirmed his statements in the said affidavit when he was called to testify.4

On February 2, 2004, the Court resolved to refer the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.

On April 29, 2004, respondent filed a Supplemental Comment explaining the rubber stamped "RECEIVED" on the complaint. According to her, when her staff Jan Kirt Lester Soledad was at the RTC Office of the Clerk of Court, she called him through cellular phone and directed him to stop the filing of the complaint as the same lacked certain attachments. However, one copy thereof was already stamped "RECEIVED" by the receiving court personnel, who also assigned a docket number. She kept the copies of the complaint, including the one with the stamp, to be filed later when the attachments are complete.

Meanwhile, on November 7, 2005, respondent filed a Manifestation with Urgent Motion praying that the administrative complaint be likewise dismissed in view of the dismissal of the criminal case due to complainant’s apparent lack of interest to prosecute.

On January 19, 2007, the IBP Investigating Commissioner recommended that respondent be found guilty of falsification of public document and be meted the penalty of suspension from the practice of law for a period of three years. The report reads in part, as follows:

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. It involved no private interest. The complainant or person who called the attention of the court to the attorney’s misconduct is in no sense a party and has generally no interest in its outcome except as all good citizens may have in the proper administration of justice. It affords no redress for private grievance. (Tejan v. Cusi, 57 SCRA 154)

Prescinding from the aforequoted ruling, it is therefore irrelevant and immaterial if herein complainant is not a party to the subject civil complaint prepared by the respondent. A case of suspension or disbarment may proceed regardless of interest or lack of interest of the complainant. What matters is whether on the basis of the facts borne out by the record, the charge has been proven.

On the payment of the acceptance fee in the amount of P32,000.00, respondent’s contention that she acted as guarantor of Carlos Ceniza, complainant’s husband, when he borrowed money from a money lender, Domingo Natavio, the amount representing the acceptance, does not inspire belief. The promissory note dated May 3, 2002, appended as Annex "A" of the complaint-affidavit eloquently shows that consistent with the complainant’s allegation, she was made to borrow said amount to be paid as respondent’s acceptance fee. It bears stress that the date of the promissory note is the same date when respondent’s services were engaged leading to the preparation of the subject civil complaint. Complainant’s allegation is further enhanced by the fact that such promissory note was even notarized by the respondent.

On the alleged filing of the subject civil complaint, it is undisputed that the same was not filed before the Office of the Clerk of Court, RTC Davao Del Sur, as evidenced by a Certification from the said office appended as Annex "A" of complainant’s Manifestation dated October 14, 2005. Thus, the claim of complainant that respondent falsified or caused it to falsify the stamp marked received dated May 10, 2002 including the case number "4198", finds factual and legal bases.

It bears stress that a copy of the subject civil complaint was obtained by complainant from the respondent herself who tried to impress upon the former that contrary to her suspicion, the subject civil complaint was already filed in court. However, inquiry made by the complainant shows otherwise.

Respondent’s contention that after one copy of the complaint was already stamped by court personnel in preparation for receiving the same and entering in the court’s docket, she caused it to be withdrawn after realizing that the same lacked certain attachments, is bereft of merit.

In the first place, respondent miserably failed to mention these lacking attachments that allegedly caused the withdrawal of the complaint. Secondly, and assuming arguendo that the withdrawal was due to lacking attachments, how come the same was not filed in the next office day complete with attachments. And lastly, the Certification of the Clerk of Court clearly states that Civil Case No. 4188 is not the case of Mercedes Callejo vda. De Ceniza, et al. vs. Charlotte Ceniza, et al.

x x x x

The fact that the City Prosecutor’s Office of Digos, upon motion for reconsideration of the respondent, dismissed a similar complaint filed by herein complainant will not in anyway affect the above captioned administrative complaint.

The pendency of a criminal action against the respondent, from the facts of which the disciplinary proceeding is predicated, does not pose prejudicial question to the resolution of the issues in the disbarment case. (Calo vs. Degano, 20 SCRA 447) His conviction is not necessary to hold the lawyer administratively liable because the two proceedings and their objectives are different and it is not sound public policy to await the final resolution of a criminal case before the court act on a complaint against a lawyer as it may emasculate the disciplinary power of the court. (In re Brillantes, 76 SCRA 1) Nor is his acquittal, by this fact alone, a bar to an administrative complaint against him. (Piatt vs. Abordo, 58 Phil. 350).

The other allegations in the complaint about ignorance of the law are found to be without basis.

R E C O M M E N D A T I O N

WHEREFORE, it is most respectfully recommended that herein respondent Atty. Vivian C. Rubia, be found guilty of the charge of falsification of public document and be meted the penalty of suspension from the practice of law for a period of three (3) years.

On May 31, 2007, the Board of Governors of the IBP issued a Resolution adopting the Investigating Commissioner’s recommendation with modification, as follows:

RESOLUTION NO. XVII-2007-237

Adm. Case No. 6166

Maria Earl Beverly C. Ceniza vs.Atty. Vivian G. Rubia

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A"; and finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering Respondent’s falsification of public document, Atty. Vivian G. Rubia is hereby DISBARRED.

However, in its December 11, 2008 Resolution, the Board of Governors reconsidered its May 31, 2007 Resolution by reducing the recommended penalty of disbarment to five years suspension from the practice of law, thus:

RESOLUTION NO. XVIII-2008-715

Adm. Case No. 6166

Maria Earl Beverly C. Ceniza vs.Atty. Vivian G. Rubia

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED the Recommendation of the Board of Governors First Division of the above-entitled case, herein made part of this Resolution as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, the Motion for Reconsideration is hereby DENIED with modification, that Resolution RESOLUTION NO. XVII-2007-237 of the Board of Governors dated 31 May 2007 recommending the Disbarment of Atty. Vivian G. Rubia is reduced to Five (5) years Suspension from the practice of law.

On April 20, 2009, the IBP forwarded the instant case to this Court as provided under Rule 139-B, Section 12(b) of the Rules of Court.

Complainant seeks the disbarment of respondent from the practice of law for gross misconduct, ignorance of the law and for falsification of public document. In disbarment proceedings, the burden of proof rests upon the complainant, and for the court to exercise its disciplinary powers, the case against the respondent must be established by clear, convincing and satisfactory proof. Considering the serious consequence of the disbarment or suspension of a member of the Bar, this Court has consistently held that clear preponderant evidence is necessary to justify the imposition of the administrative penalty.5

The sole issue in this case is whether or not there is preponderant evidence to warrant the imposition of administrative sanction against the respondent.

In accusing respondent of falsification of public document, complainant alleged that respondent misrepresented to her that the complaint was already filed in court, when in fact, upon verification with the RTC Clerk of Court, it was not. Such misrepresentation is shown by the copy of the complaint with a stamped "RECEIVED" and docket number thereon. Apart from said allegations, complainant has not proferred any proof tending to show that respondent deliberately falsified a public document.

A perusal of the records shows that complainant’s evidence consists solely of her Affidavit-Complaint and the annexes attached therewith. She did not appear in all the mandatory conferences set by the investigating commissioner in order to give respondent the chance to test the veracity of her assertions. It is one thing to allege gross misconduct, ignorance of the law or falsification of public document and another to demonstrate by evidence the specific acts constituting the same.

Indeed, complainant has no way of knowing the surrounding circumstances behind the filing of the complaint by respondent’s staff because she was not present when the same was filed with the trial court. Complainant failed to disprove by preponderant evidence respondent’s claim that the case was not filed but was in fact withdrawn after it was stamped with "RECEIVED" and assigned with a docket number. We find this explanation satisfactory and plausible considering that the stamp did not bear the signature of the receiving court personnel, which is normally done when pleadings are received by the court.

Further, the certification of the RTC Clerk of Court that the complaint was not filed and that "CIVIL CASE NO. 4198" pertained to another case, did not diminish the truthfulness of respondent’s claim, but even tended to bolster it. Necessarily, as the complaint was not filed, docket number "4198" indicated in the copy of the complaint was assigned to another case thereafter filed in court.

Thus, for lack of preponderant evidence, the investigating commissioner’s ruling that respondent was guilty of falsification of public document, as adopted by the IBP Board of Governors, has no factual basis to stand on.1avvphi1

However, we find that respondent committed some acts for which she should be disciplined or administratively sanctioned.

We find nothing illegal or reprehensible in respondent’s act of charging an acceptance fee of P32,000.00, which amount appears to be reasonable under the circumstances. The impropriety lies in the fact that she suggested that complainant borrow money from Domingo Natavio for the payment thereof. This act impresses upon the Court that respondent would do nothing to the cause of complainant’s mother-in-law unless payment of the acceptance fee is made. Her duty to render legal services to her client with competence and diligence should not depend on the payment of acceptance fee, which was in this case promised to be paid upon the arrival of complainant’s mother-in-law in June 2002, or barely a month after respondent accepted the case.

Respondent’s transgression is compounded further when she severed the lawyer-client relationship due to overwhelming workload demanded by her new employer Nakayama Group of Companies, which constrained her to return the money received as well as the records of the case, thereby leaving her client with no representation. Standing alone, heavy workload is not sufficient reason for the withdrawal of her services.

Moreover, respondent failed to maintain an open line of communication with her client regarding the status of their complaint.

Clearly, respondent violated the Lawyer’s Oath which imposes upon every member of the bar the duty to delay no man for money or malice, Rules 18.03 and 18.04 of Canon 18, and Canon 22 of the Code of Professional Responsibility, thus:

CANON 18 - A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.

x x x x

Rule 18.03 - A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable.

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

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

When a lawyer accepts to handle a case, whether for a fee or gratis et amore, he undertakes to give his utmost attention, skill and competence to it, regardless of its significance. Thus, his client, whether rich or poor, has the right to expect that he will discharge his duties diligently and exert his best efforts, learning and ability to prosecute or defend his (client’s) cause with reasonable dispatch. Failure to fulfill his duties will subject him to grave administrative liability as a member of the Bar. For the overriding need to maintain the faith and confidence of the people in the legal profession demands that an erring lawyer should be sanctioned.6

WHEREFORE, in view of the foregoing, respondent Atty. Vivian G. Rubia is found GUILTY of violation of Rule 18.03 and Canon 22 of the Code of Professional Responsibility. Accordingly, she is SUSPENDED from the practice of law for six (6) months effective immediately, with a warning that similar infractions in the future will be dealt with more severely.

Let all courts, through the Office of the Court Administrator, as well as the Integrated Bar of the Philippines and the Office of the Bar Confidant, be notified of this Decision, and be it duly recorded in the personal file of respondent Atty. Vivian G. Rubia.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

A.C. No. 7910               September 18, 2009

WEN MING W CHEN, a.k.a. DOMINGO TAN, Complainant, vs.ATTY. F.D. NICOLAS B. PICHAY, Respondent.

D E C I S I O N

YNARES-SANTIAGO, J.:

On March 1, 2006, a complaint was filed by Wen Ming W Chen, also known as Domingo Tan, before the Integrated Bar of the Philippines (IBP) against Atty. F.D. Nicolas B. Pichay for (1) violation of Rule 1.01 of the Code of Professional Responsibility when he allegedly extorted money from the complainant; (2) gross misconduct amounting to gross inexcusable ignorance of the law when he filed complaints for damages before the Department of Justice (DOJ); and (3) violation of Rule 10.3 of the Code of Professional Responsibility when he filed a motion before the Regional Trial Court seeking the inclusion of complainant’s name in the hold departure list of the Bureau of Immigration and Deportation (BID).

Atty. Pichay is the legal counsel of American Security Systems International (ASSI), an intellectual property consultancy firm incorporated under Philippine laws. ASSI is engaged in investigating and prosecuting violations of the intellectual property rights of its clients which include Guccio Gucci S.P.A. (Gucci) and Louis Vuitton (LV).

In February 2006, Branch 24 of the Manila Regional Trial Court issued six warrants upon the application of the National Bureau of Investigation (NBI), which included the search of the residence of Caili Zhen, a.k.a. Susan Chua, and herein complainant, located at Unit 15, Juan Luna Garden, 988 Juan Luna Street, Tondo, Manila. The application was based on the investigation previously conducted by the NBI on alleged rampant selling of counterfeit Gucci and LV items. On February 6, 2006, said search warrants were implemented and thousands of counterfeit Gucci and LV items were seized from complainant’s residence.

At this point, the parties’ respective versions of the events diverge materially.

Complainant alleged that on February 14, 2006, respondent requested a meeting during which he demanded P500,000 from complainant in return for not filing criminal charges against the latter. When complainant rejected respondent’s proposal, the latter filed two complaints for damages before the DOJ. According to complainant, respondent ought to know that the DOJ has no jurisdiction over civil actions for damages.

Finally, complainant alleged that respondent applied for the issuance of a hold departure order against complainant despite the absence of a criminal case filed with the Regional Trial Court.

On the other hand, respondent alleged that after the implementation on February 6, 2006 of the search warrant and the seizure of the counterfeit Gucci and LV items, he received a call from Atty. Jose Justo Yap, Chief of the NBI Intellectual Property Rights Division, informing him that David Uy who is allegedly a friend of herein complainant is requesting a meeting. As relayed by Uy, complainant wanted to propose a settlement regarding the seized items. After conferring with representatives of Gucci and LV, respondent agreed to meet complainant and Uy, provided Atty. Yap would sit in as observer.

On February 14, 2006, at around 2:00 p.m., respondent arrived at the coffee shop of the Diamond Hotel and was introduced by Atty. Yap to his companion, Atty. Saldana, and David Uy. Another man was also seated in their table but he could no longer recall his name.

During the meeting, Uy informed respondent that he was attending the meeting on behalf of complainant as the latter could not communicate well in English or Filipino. When asked if Tan was present, Uy informed respondent that the former was not around.

Uy then proceeded to ask respondent about Gucci and LV’s proposals but respondent replied that since the meeting was initiated by Uy, then it would be more appropriate if he would be the one to submit proposals. Uy inquired if Gucci and LV would require payment of damages, to which respondent answered that based on previous experience, the two entities would require payment of damages. Uy then asked how much damages would Gucci and LV demand, but respondent replied that he was only authorized to receive proposals but not to suggest provisions for settlement. He informed Uy though that based on previous settlements, the damages would range from P500,000 to P1Million, depending on the quantity of the counterfeits seized. Uy also inquired whether the confiscated items would be returned to complainant but respondent informed him that the return of the seized items was non-negotiable.

There being no settlement reached, respondent filed two complaints before the DOJ upon instructions of Gucci and LV. Also, in good faith and in order to protect the interests of his clients, respondent filed a motion before the Regional Trial Court of Manila for the inclusion of complainant’s name in the hold departure order list.

Respondent vehemently denied extorting money from complainant in exchange for Gucci’s and LV’s desistance. He emphasized that the meeting was not of his own initiative but upon the request of complainant and David Uy. He also insisted that until now, he never met complainant personally. As regards the cases filed before the DOJ, respondent explained that Gucci and LV intended to have the civil aspect of the case instituted along with the criminal aspect. In fact, the DOJ complaints both pray that damages be awarded "after trial on the merits" and "for such other equitable reliefs and remedies which the Honorable Court may deem just and equitable." According to respondent, these are indications of his awareness of the limited jurisdiction of the DOJ. Even conceding that he erred in this regard, respondent maintained that such does not warrant his disbarment.

As regards the filing of the motion for inclusion of complainant’s name in the hold departure list, respondent argued that the filing was done to protect the interests of his client moreso because complainant had been previously blacklisted and ordered for deportation by the BID. Besides, it was up to the trial court whether to grant the same or not. Respondent asserted that it would be absurd and highly oppressive if a lawyer would be subjected to administrative sanctions every time he commits mistakes albeit unintentional and in good faith.

Complainant thereafter filed his Reply reiterating his earlier arguments, but did not rebut respondent’s allegations that David Uy, Atty. Saldana and Atty. Yap were likewise present during the meeting. As regards the allegation that he was not even present during the meeting, complainant claimed that "whether respondent has or has no knowledge of the presence of complainant in the said meeting does not change the circumstances of the case."

Thereafter, the parties submitted their respective position papers. For the first time, complainant admitted that he met respondent on February 14, 2006 accompanied by David Uy; however, he did not make any comment on Atty. Yap’s presence thereat; he insisted that respondent extorted money from him; that respondent abused the rules of procedure when he filed actions for damages before the DOJ and erroneously applied for the issuance of a hold departure order before the Regional Trial Court.1avvphi1

In his Position Paper, respondent attached the affidavit of Atty. Yap, Chief of the Intellectual Property Rights Division of the NBI, who admitted that he was present during the February 14, 2006 meeting. At the same time, he corroborated in all material respects respondent’s narration of what actually transpired during the said meeting.

On January 29, 2008, Investigating Commissioner Rebecca Maala of the IBP submitted her Report with recommendation that respondent be suspended for a period of four months "from the practice of law and as a member of the Bar." According to Maala, respondent’s filing of two cases before the DOJ seeking for an award of damages demonstrates ignorance of the law and illustrates his intention to harass complainant; that the erroneous application for the hold departure order likewise exemplifies his ignorance of the law considering that no Information has been filed in Court. As regards the alleged extortion, Maala found that "no sufficient evidence was presented by both parties as to which of them is telling the truth."

By Resolution No. XVIII-2008-122, the IBP Board of Governors adopted Maala’s findings with modification that respondent’s period of suspension be increased to one year.

Hence this petition.1 Respondent submits that at the heart of this case is the rancor of a disgruntled opponent who has been investigated for and charged with unfair competition or selling counterfeit items bearing the trademarks of Gucci and LV; a resident alien who has been blacklisted and previously ordered for deportation by the BID.

We find merit in the petition.

We cannot agree with Maala’s findings that there is no evidence on record to disprove complainant’s allegation of extortion. Interestingly, Maala never mentioned in her Report the Affidavit of Atty. Justo Yap, Chief of the Intellectual Property Rights Division of the NBI which substantially corroborated respondent’s narration of what actually transpired during the February 14, 2006 meeting. At any rate, even without Atty. Yap’s affidavit, we find it hard to believe complainant’s well-crafted tale of extortion.

First, we cannot lend credence to complainant’s allegation that it was respondent who requested a meeting. The facts show that it was complainant who was in quandary after the implementation of the search warrants in his residence, where thousands of counterfeit items were seized. Complainant never denied ownership of the seized items or that he wanted them back. Clearly, he has more reason to seek the help of respondent and thus initiate the meeting.

Second, complainant failed to mention in his complaint and in his Reply to respondent’s Answer the presence of David Uy during the meeting. He only admitted for the first time in his Position Paper the

presence of Uy during the February 14, 2006 meeting. We find this odd considering that it was Uy who acted as his representative. Also, he could have submitted Uy’s affidavit to substantiate his claim but did not.

Third, notwithstanding the several opportunities given him, complainant did not rebut or categorically deny the presence of Atty. Yap during the meeting. He also failed to deny the allegations of Atty. Yap in his affidavit. Complainant’s silence means admission that indeed Atty. Yap was present during said meeting.

Fourth, there was no allegation that respondent was acquainted to complainant or David Uy prior to the meeting. Thus, we find it highly inconceivable for respondent who allegedly met complainant for the first time, to immediately demand money from him, moreso in the presence of the NBI Chief of the Intellectual Property Rights Division.

Fifth, complainant did not bother to present Uy to corroborate his version of the event.

Finally, we find it hard to believe that respondent, as counsel for ASSI, could unilaterally decide to desist from filing criminal charges against herein complainant without consultation or prior approval of his clients, Gucci and LV.

Viewed against complainant’s bare and self-serving allegation that respondent extorted money from him, the foregoing clearly prove that no such extortion took place.

Next, we cannot subscribe to Maala’s findings that the DOJ complaints were intentionally filed to harass herein complainant. As previously stated, there was no reason for respondent to harass herein complainant, considering that the search warrants were successfully implemented and the counterfeit items were seized from complainant’s residence. By filing the DOJ complaints, respondent was only taking the next step which in his opinion was the most logical remedy in protecting the interests of Gucci and LV.

Even assuming that the cases filed were civil actions for damages, the same does not merit respondent’s disbarment or suspension. There is nothing on record to show that the filing of the cases was done for the purpose of harassment. The conclusion that the filing of the DOJ complaints was to harass complainant has no basis. If at all, it was an error of judgment sans bad faith. It has been held that not all mistakes of members of the Bar justify the imposition of disciplinary actions. An attorney-at-law is not expected to know all the law. For an honest mistake or error, an attorney is not liable.2 The alleged errors are not of such nature which would warrant the imposition of the penalty of suspension for one year.

Records show that on April 14, 2008, the DOJ resolved in I.S. No. 2006-192 to charge respondents therein, including herein complainant with Unfair Competition under Section 168.3(a) in relation to Section 170 of R.A. 8293. The corresponding Information has been filed in the Regional Trial Court of Manila docketed as Criminal Case No. 08264729.

WHEREFORE, the instant complaint filed against Atty. F.D. Nicolas B. Pichay is DISMISSED for lack of merit.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

A.C. No. 6672               September 4, 2009

PEDRO L. LINSANGAN, Complainant, vs.ATTY. NICOMEDES TOLENTINO, Respondent.

R E S O L U T I O N

CORONA, J.:

This is a complaint for disbarment1 filed by Pedro Linsangan of the Linsangan Linsangan & Linsangan Law Office against Atty. Nicomedes Tolentino for solicitation of clients and encroachment of professional services.

Complainant alleged that respondent, with the help of paralegal Fe Marie Labiano, convinced his clients2to transfer legal representation. Respondent promised them financial assistance3 and expeditious collection on their claims.4 To induce them to hire his services, he persistently called them and sent them text messages.

To support his allegations, complainant presented the sworn affidavit5 of James Gregorio attesting that Labiano tried to prevail upon him to sever his lawyer-client relations with complainant and utilize respondent’s services instead, in exchange for a loan of P50,000. Complainant also attached "respondent’s" calling card:6

Front

NICOMEDES TOLENTINO

LAW OFFFICE

CONSULTANCY & MARITIME SERVICESW/ FINANCIAL ASSISTANCE

Fe Marie L. LabianoParalegal

1st MIJI Mansion, 2nd Flr. Rm. M-01 6th Ave., cor M.H. Del PilarGrace Park, Caloocan City

Tel: 362-7820Fax: (632) 362-7821 Cel.: (0926) 2701719

Back

SERVICES OFFERED:

CONSULTATION AND ASSISTANCETO OVERSEAS SEAMEN

REPATRIATED DUE TO ACCIDENT,INJURY, ILLNESS, SICKNESS, DEATHAND INSURANCE BENEFIT CLAIMS

ABROAD.

1avvphi1

(emphasis supplied)

Hence, this complaint.

Respondent, in his defense, denied knowing Labiano and authorizing the printing and circulation of the said calling card.7

The complaint was referred to the Commission on Bar Discipline (CBD) of the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.8

Based on testimonial and documentary evidence, the CBD, in its report and recommendation,9 found that respondent had encroached on the professional practice of complainant, violating Rule 8.0210 and other canons11 of the Code of Professional Responsibility (CPR). Moreover, he contravened the rule against soliciting cases for gain, personally or through paid agents or brokers as stated in Section 27, Rule 13812 of the Rules of Court. Hence, the CBD recommended that respondent be reprimanded with a stern warning that any repetition would merit a heavier penalty.

We adopt the findings of the IBP on the unethical conduct of respondent but we modify the recommended penalty.

The complaint before us is rooted on the alleged intrusion by respondent into complainant’s professional practice in violation of Rule 8.02 of the CPR. And the means employed by respondent in furtherance of the said misconduct themselves constituted distinct violations of ethical rules.

Canons of the CPR are rules of conduct all lawyers must adhere to, including the manner by which a lawyer’s services are to be made known. Thus, Canon 3 of the CPR provides:

CANON 3 - A lawyer in making known his legal services shall use only true, honest, fair, dignified and objective information or statement of facts.

Time and time again, lawyers are reminded that the practice of law is a profession and not a business; lawyers should not advertise their talents as merchants advertise their wares.13 To allow a

lawyer to advertise his talent or skill is to commercialize the practice of law, degrade the profession in the public’s estimation and impair its ability to efficiently render that high character of service to which every member of the bar is called.14

Rule 2.03 of the CPR provides:

RULE 2.03. A lawyer shall not do or permit to be done any act designed primarily to solicit legal business.

Hence, lawyers are prohibited from soliciting cases for the purpose of gain, either personally or through paid agents or brokers.15 Such actuation constitutes malpractice, a ground for disbarment.16

Rule 2.03 should be read in connection with Rule 1.03 of the CPR which provides:

RULE 1.03. A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or delay any man’s cause.

This rule proscribes "ambulance chasing" (the solicitation of almost any kind of legal business by an attorney, personally or through an agent in order to gain employment)17 as a measure to protect the community from barratry and champerty.18

Complainant presented substantial evidence19 (consisting of the sworn statements of the very same persons coaxed by Labiano and referred to respondent’s office) to prove that respondent indeed solicited legal business as well as profited from referrals’ suits.

Although respondent initially denied knowing Labiano in his answer, he later admitted it during the mandatory hearing.

Through Labiano’s actions, respondent’s law practice was benefited. Hapless seamen were enticed to transfer representation on the strength of Labiano’s word that respondent could produce a more favorable result.

Based on the foregoing, respondent clearly solicited employment violating Rule 2.03, and Rule 1.03 and Canon 3 of the CPR and Section 27, Rule 138 of the Rules of Court. 1avvphi1

With regard to respondent’s violation of Rule 8.02 of the CPR, settled is the rule that a lawyer should not steal another lawyer’s client nor induce the latter to retain him by a promise of better service, good result or reduced fees for his services.20 Again the Court notes that respondent never denied having these seafarers in his client list nor receiving benefits from Labiano’s "referrals." Furthermore, he never denied Labiano’s connection to his office.21 Respondent committed an unethical, predatory overstep into another’s legal practice. He cannot escape liability under Rule 8.02 of the CPR.

Moreover, by engaging in a money-lending venture with his clients as borrowers, respondent violated Rule 16.04:

Rule 16.04 – A lawyer shall not borrow money from his client unless the client’s interests are fully protected by the nature of the case or by independent advice. Neither shall a lawyer lend money to a client except, when in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client.

The rule is that a lawyer shall not lend money to his client. The only exception is, when in the interest of justice, he has to advance necessary expenses (such as filing fees, stenographer’s fees for transcript of stenographic notes, cash bond or premium for surety bond, etc.) for a matter that he is handling for the client.

The rule is intended to safeguard the lawyer’s independence of mind so that the free exercise of his judgment may not be adversely affected.22 It seeks to ensure his undivided attention to the case he is handling as well as his entire devotion and fidelity to the client’s cause. If the lawyer lends money to the client in connection with the client’s case, the lawyer in effect acquires an interest in the subject matter of the case or an additional stake in its outcome.23 Either of these circumstances may lead the lawyer to consider his own recovery rather than that of his client, or to accept a settlement which may take care of his interest in the verdict to the prejudice of the client in violation of his duty of undivided fidelity to the client’s cause.24

As previously mentioned, any act of solicitation constitutes malpractice25 which calls for the exercise of the Court’s disciplinary powers. Violation of anti-solicitation statutes warrants serious sanctions for initiating contact with a prospective client for the purpose of obtaining employment.26 Thus, in this jurisdiction, we adhere to the rule to protect the public from the Machiavellian machinations of unscrupulous lawyers and to uphold the nobility of the legal profession.

Considering the myriad infractions of respondent (including violation of the prohibition on lending money to clients), the sanction recommended by the IBP, a mere reprimand, is a wimpy slap on the wrist. The proposed penalty is grossly incommensurate to its findings.

A final word regarding the calling card presented in evidence by petitioner. A lawyer’s best advertisement is a well-merited reputation for professional capacity and fidelity to trust based on his character and conduct.27 For this reason, lawyers are only allowed to announce their services by publication in reputable law lists or use of simple professional cards.

Professional calling cards may only contain the following details:

(a) lawyer’s name;

(b) name of the law firm with which he is connected;

(c) address;

(d) telephone number and

(e) special branch of law practiced.28

Labiano’s calling card contained the phrase "with financial assistance." The phrase was clearly used to entice clients (who already had representation) to change counsels with a promise of loans to finance their legal actions. Money was dangled to lure clients away from their original lawyers, thereby taking advantage of their financial distress and emotional vulnerability. This crass commercialism degraded the integrity of the bar and deserved no place in the legal profession. However, in the absence of substantial evidence to prove his culpability, the Court is not prepared to rule that respondent was personally and directly responsible for the printing and distribution of Labiano’s calling cards.

WHEREFORE, respondent Atty. Nicomedes Tolentino for violating Rules 1.03, 2.03, 8.02 and 16.04 and Canon 3 of the Code of Professional Responsibility and Section 27, Rule 138 of the Rules of Court is hereby SUSPENDED from the practice of law for a period of one year effective immediately from receipt of this resolution. He is STERNLY WARNED that a repetition of the same or similar acts in the future shall be dealt with more severely.

Let a copy of this Resolution be made part of his records in the Office of the Bar Confidant, Supreme Court of the Philippines, and be furnished to the Integrated Bar of the Philippines and the Office of the Court Administrator to be circulated to all courts.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

A.C. No. 7054               December 4, 2009

CONRADO QUE, Complainant, vs.ATTY. ANASTACIO REVILLA, JR. Respondent.

D E C I S I O N

PER CURIAM:

In a complaint for disbarment,1 Conrado Que (complainant) accused Atty. Anastacio Revilla, Jr. (respondent) before the Integrated Bar of the Philippines Committee on Bar Discipline (IBP Committee on Bar Discipline or CBD) of committing the following violations of the provisions of the Code of Professional Responsibility and Rule 138 of the Rules of Court:

(1) The respondent’s abuse of court remedies and processes by filing a petition for certiorari before the Court of Appeals (CA), two petitions for annulment of title before the Regional Trial Court (RTC), a petition for annulment of judgment before the RTC and lastly, a petition for declaratory relief before the RTC (collectively, subject cases) to assail and overturn the final judgments of the Metropolitan Trial Court2 (MeTC) and RTC3 in the unlawful detainer case rendered against the respondent’s clients. The respondent in this regard, repeatedly raised the issue of lack of jurisdiction by the MeTC and RTC knowing fully-well that these courts have jurisdiction over the unlawful detainer case. The respondent also repeatedly attacked the complainant’s and his siblings’ titles over the property subject of the unlawful detainer case;

(2) The respondent’s commission of forum-shopping by filing the subject cases in order to impede, obstruct, and frustrate the efficient administration of justice for his own personal gain and to defeat the right of the complainant and his siblings to execute the MeTC and RTC judgments in the unlawful detainer case;

(3) The respondent’s lack of candor and respect towards his adversary and the courts by resorting to falsehood and deception to misguide, obstruct and impede the due

administration of justice. The respondent asserted falsehood in the motion for reconsideration of the dismissal of the petition for annulment of judgment by fabricating an imaginary order issued by the presiding judge in open court which allegedly denied the motion to dismiss filed by the respondents in the said case. The complainant alleged that the respondent did this to cover up his lack of preparation; the respondent also deceived his clients (who were all squatters) in supporting the above falsehood.4

(4) The respondent’s willful and revolting falsehood that unjustly maligned and defamed the good name and reputation of the late Atty. Alfredo Catolico (Atty. Catolico), the previous counsel of the respondent’s clients.

(5) The respondent’s deliberate, fraudulent and unauthorized appearances in court in the petition for annulment of judgment for 15 litigants, three of whom are already deceased;

(6) The respondent’s willful and fraudulent appearance in the second petition for annulment of title as counsel for the Republic of the Philippines without being authorized to do so.

Additionally, the complaint accused the respondent of representing fifty-two (52) litigants in Civil Case No. Q-03-48762 when no such authority was ever given to him.

The CBD required the respondent to answer the complaint.

In his Answer,5 the respondent declared that he is a member of the Kalayaan Development Cooperative (KDC) that handles pro bono cases for the underprivileged, the less fortunate, the homeless and those in the marginalized sector in Metro Manila. He agreed to take over the cases formerly handled by other KDC members. One of these cases was the unlawful detainer case handled by the late Atty. Catolico where the complainant and his siblings were the plaintiffs and the respondent’s present clients were the defendants.

With respect to paragraph 1 of the disbarment complaint, the respondent professed his sincerity, honesty and good faith in filing the petitions complained of; he filed these petitions to protect the interests of his clients in their property. The respondent asserted that these petitions were all based on valid grounds – the lack of jurisdiction of the MeTC and the RTC over the underlying unlawful detainer case, the extrinsic fraud committed by the late Atty. Catolico, and the extrinsic fraud committed by the complainant and his family against his clients; he discovered that the allegedly detained property did not really belong to the complainant and his family but is a forest land. The respondent also asserted that his resort to a petition for annulment of judgment and a petition for declaratory relief to contest the final judgments of the MeTC and RTC were all parts of his legal strategy to protect the interests of his clients.

On the allegations of falsehood in the motion for reconsideration of the order of dismissal of the petition for annulment of judgment (covered by paragraph 3 of the disbarment complaint), the respondent maintained that his allegations were based on his observations and the notes he had taken during the proceedings on what the presiding judge dictated in open court.

The respondent denied that he had made any unauthorized appearance in court (with respect to paragraphs 5 and 6 of the disbarment complaint). He claimed that the 52 litigants in Civil Case No. Q-03-48762 were impleaded by inadvertence; he immediately rectified his error by dropping them from the case. On the petition for annulment of judgment, the respondent claimed that a majority (31 out of 49) of the litigants who signed the certification constituted sufficient compliance with the rules on forum-shopping. The respondent likewise denied having represented the Republic of the Philippines in the second petition for annulment of title. The respondent pointed out that there was

no allegation whatsoever that he was the sole representative of both the complainants (his clients) and the Republic of the Philippines. The respondent pointed out that the petition embodied a request to the Office of the Solicitor General to represent his clients in the case.6

The respondent submitted that he did not commit any illegal, unlawful, unjust, wrongful or immoral acts towards the complainant and his siblings. He stressed that he acted in good faith in his dealings with them and his conduct was consistent with his sworn duty as a lawyer to uphold justice and the law and to defend the interests of his clients. The respondent additionally claimed that the disbarment case was filed because the complainant’s counsel, Atty. Cesar P. Uy (Atty. Uy), had an axe to grind against him.

Lastly, the respondent posited in his pleadings7 before the IBP that the present complaint violated the rule on forum shopping considering that the subject cases were also the ones on which a complaint was filed against him in CBD Case No. 03-1099 filed by Atty. Uy before the IBP Committee on Bar Discipline. The respondent also posited that the present complaint was filed to harass, ridicule and defame his good name and reputation and, indirectly, to harass his clients who are marginalized members of the KDC.

The Findings of the Investigating Commissioner

Except for the last charge of unauthorized appearance on behalf of 52 litigants in Civil Case No. Q-03-48762, Investigating Commissioner Renato G. Cunanan8 (Investigating Commissioner Cunanan)

found all the charges against the respondent meritorious. In his Report and Recommendation, he stated:

While an attorney admittedly has the solemn duty to defend and protect the cause and rights of his client with all the fervor and energy within his command, yet, it is equally true that it is the primary duty of the lawyer to defend the dignity, authority and majesty of the law and the courts which enforce it. A lawyer is not at liberty to maintain and defend the cause of his clients thru means, inconsistent with truth and honor. He may not and must not encourage multiplicity of suits or brazenly engage in forum-shopping.9

On the first charge on abuse of court processes, Investigating Commissioner Cunanan noted the unnecessary use by the respondent of legal remedies to forestall the execution of the final decisions of the MTC and the RTC in the unlawful detainer case against his clients.10

On the second charge, the Investigating Commissioner ruled that the act of the respondent in filing two petitions for annulment of title, a petition for annulment of judgment and later on a petition for declaratory relief were all done to prevent the execution of the final judgment in the unlawful detainer case and constituted prohibited forum-shopping.11

On the third and fourth charges, Investigating Commissioner Cunanan found ample evidence showing that the respondent was dishonest in dealing with the court as shown in his petition for annulment of judgment; he resorted to falsities and attributed acts to Atty. Catolico and to the presiding judge, all of which were untrue. 12

On the fifth and sixth charges, the Investigating Commissioner disregarded the respondent’s explanation that he had no intention to represent without authority 15 of the litigants (three of whom were already deceased) in the petition for annulment of judgment (Civil Case No. Q-01-45556). To the Investigating Commissioner, the respondent merely glossed over the representation issue by claiming that the authority given by a majority of the litigants complied with the certification of non-forum shopping requirement. The Investigating Commissioner likewise brushed aside the

respondent’s argument regarding his misrepresentation in the second complaint for annulment of title since he knew very well that only the Solicitor General can institute an action for reversion on behalf of the Republic of the Philippines. Despite this knowledge, the respondent solely signed the amended complaint for and on behalf of his clients and of the Republic.

The Board of Governors of the IBP Committee on Bar Discipline, through its Resolution No. XVII-2005-164 on CBD Case No. 03-1100, adopted and approved the Report and Recommendation of Investigating Commissioner Cunanan and recommended that the respondent be suspended from the practice of law for two (2) years.13 On reconsideration, the Board of Governors reduced the respondent’s suspension from the practice of law to one (1) year.14

The Issue

The case poses to us the core issues of whether the respondent can be held liable for the imputed unethical infractions and professional misconduct, and the penalty these transgressions should carry.

The Court’s Ruling

Except for the penalty, we agree with the Report and Recommendation of Investigating Commissioner Cunanan and the Board of Governors of the IBP Committee on Bar Discipline.

We take judicial notice that this disbarment complaint is not the only one so far filed involving the respondent; another complaint invoking similar grounds has previously been filed. In Plus Builders, Inc. and Edgardo C. Garcia v. Atty. Anastacio E. Revilla, Jr.,15 we suspended the respondent from the practice of law for his willful and intentional falsehood before the court; for misuse of court procedures and processes to delay the execution of a judgment; and for collaborating with non-lawyers in the illegal practice of law. We initially imposed a suspension of two (2) years, but in an act of leniency subsequently reduced the suspension to six (6) months.16

Abuse of court procedures and processes

The following undisputed facts fully support the conclusion that the respondent is guilty of serious misconduct for abusing court procedures and processes to shield his clients from the execution of the final judgments of the MeTC and RTC in the unlawful detainer case against these clients:

First, the respondent filed a petition for certiorari (docketed as CA-G.R. SP No. 53892) with prayer for the issuance of preliminary injunction and temporary restraining order to question the final judgments of the MeTC and RTC for lack of jurisdiction. In dismissing the respondent’s petition, the CA held:

Even for the sake of argument considering that the petition case be the proper remedy, still it must be rejected for failure of petitioners to satisfactorily demonstrate lack of jurisdiction on the part of the Metropolitan Trial Court of Quezon City over the ejectment case.17

Second, notwithstanding the CA’s dismissal of the petition for certiorari, the respondent again questioned the MeTC’s and the RTC’s lack of jurisdiction over the unlawful detainer case in a petition for annulment of judgment (docketed as Civil Case No. Q-01-45556) before the RTC with an ancillary prayer for the grant of a temporary restraining order and preliminary injunction. The RTC dismissed this petition on the basis of the motion to dismiss filed.18

Third, the respondent successively filed two petitions (docketed as Civil Case No. Q-99-38780 and Civil Case No. Q-02-46885) for annulment of the complainant’s title to the property involved in the unlawful detainer case. The records show that these petitions were both dismissed "for lack of legal personality on the part of the plaintiffs" to file the petition.19

Fourth, after the dismissals of the petition for annulment of judgment and the petitions for annulment of title, the respondent this time filed a petition for declaratory relief with prayer for a writ of preliminary injunction to enjoin the complainant and his siblings from exercising their rights over the same property subject of the unlawful detainer case. The respondent based the petition on the alleged nullity of the complainant’s title because the property is a part of forest land.

Fifth, the persistent applications by the respondent for injunctive relief in the four petitions he had filed in several courts – the petition for certiorari, the petition for annulment of judgment, the second petition for annulment of complainant’s title and the petition for declaratory relief – reveal the respondent’s persistence in preventing and avoiding the execution of the final decisions of the MeTC and RTC against his clients in the unlawful detainer case.

Under the circumstances, the respondent’s repeated attempts go beyond the legitimate means allowed by professional ethical rules in defending the interests of his client. These are already uncalled for measures to avoid the enforcement of final judgments of the MeTC and RTC. In these attempts, the respondent violated Rule 10.03, Canon 10 of the Code of Professional Responsibility which makes it obligatory for a lawyer to "observe the rules of procedure and. . . not [to] misuse them to defeat the ends of justice." By his actions, the respondent used procedural rules to thwart and obstruct the speedy and efficient administration of justice, resulting in prejudice to the winning parties in that case.20

Filing of multiple actions and forum shopping

The respondent likewise violated Rule 12.02 and Rule 12.04, Canon 12 of the Code of Professional Responsibility,21 as well as the rule against forum shopping, both of which are directed against the filing of multiple actions to attain the same objective. Both violations constitute abuse of court processes; they tend to degrade the administration of justice; wreak havoc on orderly judicial procedure;22 and add to the congestion of the heavily burdened dockets of the courts.23

While the filing of a petition for certiorari to question the lower courts’ jurisdiction may be a procedurally legitimate (but substantively erroneous) move, the respondent’s subsequent petitions involving the same property and the same parties not only demonstrate his attempts to secure favorable ruling using different fora, but his obvious objective as well of preventing the execution of the MeTC and RTC decisions in the unlawful detainer case against his clients. This intent is most obvious with respect to the petitions for annulment of judgment and declaratory relief, both geared towards preventing the execution of the unlawful detainer decision, long after this decision had become final.

Willful, intentional and deliberate   falsehood before the courts

The records also reveal that the respondent committed willful, intentional and deliberate falsehood in the pleadings he filed with the lower courts.

First, in the petition for annulment of judgment filed before the RTC, Branch 101, Quezon City, the respondent cited extrinsic fraud as one of the grounds for the annulment sought. The extrinsic fraud was alleged in the last paragraph of the petition, as follows:

In here, counsel for the petitioners (defendants therein), deliberately neglected to file the proper remedy then available after receipt of the denial of their Motion for Reconsideration … thus corruptly sold out the interest of the petitioners (defendants therein) by keeping them away to the Court and in complete ignorance of the suit by a false pretense of compromise and fraudulent acts of alleging representing them when in truth and in fact, have connived with the attorney of the prevailing party at his defeat to the prejudice of the petitioner (defendants therein) …24

Yet, in paragraph 35 of the same petition, the respondent alleged that no second motion for reconsideration or for new trial, or no other petition with the CA had been filed, as he believed "that the decisions rendered both by the MeTC and the RTC are null and void."25 These conflicting claims, no doubt, involve a fabrication made for the purpose of supporting the petition for annulment. Worse, it involved a direct and unsubstantiated attack on the reputation of a law office colleague, another violation we shall separately discuss below.

Second, the respondent employed another obvious subterfuge when he filed his second petition for annulment of title, which was an unsuccessful attempt to circumvent the rule that only the Solicitor General may commence reversion proceedings of public lands26 on behalf of the Republic of the Philippines. This second petition, filed by a private party and not by the Republic, showed that: (a) the respondent and his clients requested that they be represented by the Solicitor General in the proceedings; (b) the Republic of the Philippines was simply impleaded in the amended petition without its consent as a plaintiff; and (c) the respondent signed the amended petition where he alone stood as counsel for the "plaintiffs." In this underhanded manner, the respondent sought to compel the Republic to litigate and waste its resources on an unauthorized and unwanted suit.

Third, the respondent also committed falsehood in his motion for reconsideration of the order dismissing his petition for annulment of judgment where he misrepresented to the court and his clients what actually transpired in the hearing of June 28, 2002 in this wise:

Likewise, the proceedings on said date of hearing (June 28, 2002) show, that after both counsel have argued on the aforesaid pending incident, the Honorable Presiding Judge, in open court, and in the presence and within the hearing distance of all the plaintiffs and their counsel as well as the counsel of the defendants resolved: TO DENY THE MOTION TO DISMISS FILED AND DIRECTED DEFENDANTS COUNSEL TO FILE AN ANSWER TO THE COMPLAINT WITHIN THE REMAINING PERIOD.27[Underscoring and emphasis theirs]

The records, however, disclose that the scheduled hearing for June 28, 2002 was actually for the respondent’s application for temporary restraining order and was not a hearing on the adverse party’s motion to dismiss.28 The records also show that RTC-Branch 101 held in abeyance the respondent’s application for injunctive relief pending the resolution of the motion to dismiss filed by the adverse party.29As stated in the order of the Presiding Judge of RTC-Branch 101:

Browsing over the records of this case specifically the transcripts of stenographic notes as transcribed by the Stenographer, the same will indicate that the allegations in the Motion for Reconsideration are not true.

… how can this Court make a ruling on the matter even without stating the factual and legal bases as required/mandated by the Rules. Moreover, there are no indications or iota of irregularity in the preparation by Stenographer of the transcripts, and by the Court interpreter of the Minutes of the open Court session.[Underscoring theirs]

The records further disclose that despite knowledge of the falsity of his allegations, the respondent took advantage of his position and the trust reposed in him by his clients (who are all squatters) to

convince them to support, through their affidavits, his false claims on what allegedly transpired in the June 28, 2002 hearing. 30

For these acts, we find the respondent liable under Rule 10.01 of Canon 10 the Code of Professional Responsibility for violating the lawyer’s duty to observe candor and fairness in his dealings with the court. This provision states:

CANON 10 – A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE COURT

Rule 10.01 – A lawyer shall not do any falsehood, nor consent to the doing of any in Court, nor shall he mislead or allow the Court to be mislead by an artifice.

Likewise, the respondent violated his duty as an attorney and his oath as a lawyer "never to mislead the judge or any judicial officer by an artifice or false statement of fact or law."31 The respondent failed to remember that his duty as an officer of the court makes him an indispensable participant in the administration of justice,32 and that he is expected to act candidly, fairly and truthfully in his work.33 His duty as a lawyer obligates him not to conceal the truth from the court, or to mislead the court in any manner, no matter how demanding his duties to his clients may be.34 In case of conflict, his duties to his client yield to his duty to deal candidly with the court.35

In defending his clients’ interest, the respondent also failed to observe Rule 19.01, Canon 19 of the Code of Professional Responsibility, which reads:

CANON 19 – A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL WITHIN THE BOUNDS OF LAW

Rule 19.01 – A lawyer shall employ only fair and honest means to attain the lawful objectives of his clients x x x

This Canon obligates a lawyer, in defending his client, to employ only such means as are consistent with truth and honor.36 He should not prosecute patently frivolous and meritless appeals or institute clearly groundless actions.37 The recital of what the respondent did to prevent the execution of the judgment against his clients shows that he actually committed what the above rule expressly prohibits.

Maligning the name of his fellow lawyers

To support the charge of extrinsic fraud in his petition for annulment of judgment, the respondent attacked (as quoted above) the name and reputation of the late Atty. Catolico and accused him of deliberate neglect, corrupt motives and connivance with the counsel for the adverse party.

We find it significant that the respondent failed to demonstrate how he came upon his accusation against Atty. Catolico. The respondent, by his own admission, only participated in the cases previously assigned to Atty. Catolico after the latter died. At the same time, the respondent’s petition for annulment of judgment also represented that no second motion for reconsideration or appeal was filed to contest the MeTC and RTC decisions in the unlawful detainer case for the reason that the respondent believed the said decisions were null and void ab initio.

Under these circumstances, we believe that the respondent has been less than fair in his professional relationship with Atty. Catolico and is thus liable for violating Canon 8 of the Code of Professional Responsibility, which obligates a lawyer to "conduct himself with courtesy, fairness, and

candor toward his professional colleagues." He was unfair because he imputed wrongdoing to Atty. Catolico without showing any factual basis therefor; he effectively maligned Atty. Catolico, who is now dead and unable to defend himself.

Unauthorized appearances

We support Investigating Commissioner Cunanan’s finding that the respondent twice represented parties without proper authorization: first, in the petition for annulment of judgment; and second, in the second petition for annulment of title.38

In the first instance, the records show that the respondent filed the petition for annulment of judgment on behalf of 49 individuals, 31 of whom gave their consent while the other 15 individuals did not. We cannot agree with the respondent’s off-hand explanation that he truly believed that a majority of the litigants who signed the certification of non-forum shopping in the petition already gave him the necessary authority to sign for the others. We find it highly improbable that this kind of lapse could have been committed by a seasoned lawyer like the respondent, who has been engaged in the practice of law for more than 30 years and who received rigid and strict training as he so proudly declares, from the University of the Philippines College of Law and in the two law firms with which he was previously associated.39 As Investigating Commissioner Cunanan found, the respondent’s explanation of compliance with the rule on the certification of non-forum shopping glossed over the real charge of appearing in court without the proper authorization of the parties he allegedly represented.

In the second instance, which occurred in the second complaint for annulment of title, the respondent knew that only the Solicitor General can legally represent the Republic of the Philippines in actions for reversion of land. Nevertheless, he filed an amended petition where he impleaded the Republic of the Philippines as plaintiff without its authority and consent, as a surreptitious way of forcing the Republic to litigate. Notably, he signed the amended complaint on behalf of all the plaintiffs – his clients and the Republic.

In both instances, the respondent violated Sections 21 and 27, Rule 138 of the Rules of Court when he undertook the unauthorized appearances. The settled rule is that a lawyer may not represent a litigant without authority from the latter or from the latter’s representative or, in the absence thereof, without leave of court.40 The willful unauthorized appearance by a lawyer for a party in a given case constitutes contumacious conduct and also warrants disciplinary measures against the erring lawyer for professional misconduct.41

The Respondent’s Defenses

We find no merit in the respondent’s defenses.

"Good faith connotes an honest intention to abstain from taking unconscientious advantage of another. Accordingly, in University of the East v. Jader we said that "[g]ood faith connotes an honest intention to abstain from taking undue advantage of another, even though the forms and technicalities of law, together with the absence of all information or belief of facts, would render the transaction unconscientious."42 Bad faith, on the other hand, is a state of mind affirmatively operating with furtive design or with some motive of self-interest, ill will or for an ulterior purpose.43 As both concepts are states of mind, they may be deduced from the attendant circumstances and, more particularly, from the acts and statements of the person whose state of mind is the subject of inquiry.

In this case, we find that the respondent acted in bad faith in defending the interests of his clients. We draw this conclusion from the misrepresentations and the dubious recourses he made, all

obviously geared towards forestalling the execution of the final judgments of the MeTC and RTC. That he took advantage of his legal knowledge and experience and misread the Rules immeasurably strengthen the presence of bad faith.

We find neither sincerity nor honest belief on the part of the respondent in pleading the soundness and merit of the cases that he filed in court to prevent the execution of the MeTC and RTC decisions, considering his own conduct of presenting conflicting theories in his petitions. The succession of cases he filed shows a desperation that negates the sincere and honest belief he claims; these are simply scattershot means to achieve his objective of avoiding the execution of the unlawful detainer judgment against his clients.

On the respondent’s allegations regarding his discretion to determine legal strategy, it is not amiss to note that this was the same defense he raised in the first disbarment case.44 As we explained in Plus Builders, the exercise of a lawyer’s discretion in acting for his client can never be at the expense of truth and justice. In the words of this cited case:

While a lawyer owes absolute fidelity to the cause of his client, full devotion to his genuine interest, and warm zeal in the maintenance and defense of his rights, as well as the exertion of his utmost learning and ability, he must do so only within the bounds of the law. He must give a candid and honest opinion on the merits and probable results of his client’s case with the end in view of promoting respect for the law and legal processes, and counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under the law. He must always remind himself of the oath he took upon admission to the Bar that he ‘will not wittingly or willingly promote or sue any groundless, false or unlawful suit nor give aid nor consent to the same’; and that he ‘will conduct [himself] as a lawyer according to the best of [his] knowledge and discretion with all good fidelity as well to the courts as to [his] clients.’ Needless to state, the lawyer’s fidelity to his client must not be pursued at the expense of truth and the administration of justice, and it must be done within the bounds of reason and common sense. A lawyer’s responsibility to protect and advance the interests of his client does not warrant a course of action propelled by ill motives and malicious intentions against the other party.45

We cannot give credence to the respondent’s claim that the disbarment case was filed because the counsel of the complainant, Atty. Uy, had an axe to grind against him. We reject this argument, considering that it was not Atty. Uy who filed the present disbarment case against him; Atty. Uy is only the counsel in this case. In fact, Atty. Uy has filed his own separate disbarment case against the respondent.

The sui generis nature of a disbarment case renders the underlying motives of the complainants unimportant and with very little relevance. The purpose of a disbarment proceeding is mainly to determine the fitness of a lawyer to continue acting as an officer of the court and a participant in the dispensation of justice – an issue where the complainant’s personal motives have little relevance. For this reason, disbarment proceedings may be initiated by the Court motu proprio upon information of an alleged wrongdoing. As we also explained in the case In re: Almacen:

. . .disciplinary proceedings like the present are sui generis. Neither purely civil nor purely criminal, this proceeding is not - and does not involve - a trial of an action or a suit, but is rather an investigation by the Court into the conduct of one of its officers. Not being intended to inflict punishment, it is in no sense a criminal prosecution.

x x x

It may be initiated by the Court motu proprio. Public interest is its primary objective, and the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges as such. Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to account for his actuations as an officer of-the Court with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice by purging the profession of members who by their misconduct have proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney. In such posture, there can thus be no occasion to speak of a complainant or a prosecutor.46

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Hence, we give little or no weight to the alleged personal motivation that drove the complainant Que and his counsel to file the present disbarment case.

Conclusion

Based on the foregoing, we conclude that the respondent committed various acts of professional misconduct and thereby failed to live up to the exacting ethical standards imposed on members of the Bar. We cannot agree, however, that only a penalty of one-year suspension from the practice of law should be imposed. Neither should we limit ourselves to the originally recommended penalty of suspension for two (2) years.

Given the respondent’s multiple violations, his past record as previously discussed, and the nature of these violations which shows the readiness to disregard court rules and to gloss over concerns for the orderly administration of justice, we believe and so hold that the appropriate action of this Court is to disbar the respondent to keep him away from the law profession and from any significant role in the administration of justice which he has disgraced. He is a continuing risk, too, to the public that the legal profession serves. Not even his ardor and overzealousness in defending the interests of his client can save him. Such traits at the expense of everything else, particularly the integrity of the profession and the orderly administration of justice, this Court cannot accept nor tolerate.

Additionally, disbarment is merited because this is not the respondent’s first ethical infraction of the same nature. We penalized him in Plus Builders, Inc. and Edgardo Garcia versus Atty. Anastacio E. Revilla for his willful and intentional falsehood before the court; for misuse of court procedures and processes to delay the execution of a judgment; and for collaborating with non-lawyers in the illegal practice of law. We showed leniency then by reducing his penalty to suspension for six (6) months. We cannot similarly treat the respondent this time; it is clear that he did not learn any lesson from his past experience and since then has exhibited traits of incorrigibility. It is time to put a finis to the respondent’s professional legal career for the sake of the public, the profession and the interest of justice.

WHEREFORE, premises considered, we hereby AFFIRM Resolution No. XVII-2005-164 dated December 17, 2005 and Resolution No. XVII-2008-657 dated December 11, 2008 of the Board of Governors of the IBP Committee on Bar Discipline insofar as respondent Atty. Anastacio Revilla, Jr. is found liable for professional misconduct for violations of the Lawyer’s Oath; Canon 8; Rules 10.01 and 10.03, Canon 10; Rules 12.02 and 12.04, Canon 12; Rule 19.01, Canon 19 of the Code of Professional Responsibility; and Sections 20(d), 21 and 27 of Rule 138 of the Rules of Court. However, we modify the penalty the IBP imposed, and hold that the respondent should be DISBARRED from the practice of law.

SO ORDERED.