pale cases(jake)

80
Canon 20 1) Pineda vs. De Jesus, G.R. No. 155224, Aug. 23, 2006** 2) DOY Mercantile Inc. vs. AMA Computer College, G.R. No. 155311, Mar. 31, 2004** 3) Concept Placement Resources Inc. vs Atty. Funk, G.R. No. 137680, Feb. 6, 2004 4) Macariola vs. Asuncion A.c. No. 133-J, May 31, 1982 5) Rayos vs Hernandez G.r. no. 169079, Feb. 12, 2007 6) Atty. Gubat vs. NPC, G.R. no. 167415, Feb. 26, 2010** 7) ALEX B. CUETO, complainant, vs. ATTY. JOSE B. JIMENEZ, JR., respondent., [A.C. No. 5798. January 20, 2005] Canon 21 8) Bun Siong Yao v. Aurelio A.c. No. 7023, March 30, 2006** 9) Hilado v. David, g.r. No. L-961, Sept. 21, 1949** 10) REBECCA J. PALM, vs ATTY. FELIPE ILEDAN, JR., A.C. No. 8242, Oct. 2, 2009** 11) WILLIAM S. UY, complainant, vs. ATTY. FERMIN L. GONZALES, respondent. A.C. No. 5280. March 30, 2004** Canon 22 12) HUMBERTO C. LIM, JR. vs. ATTY. NICANOR V. VILLAROSA, A.C. No. 5303, June 15, 2006** 13) VENTEREZ vs. ATTY. RODRIGO R. COSME, A. C. No. 7421, October 10, 2007** 14) [A.C. No. 3773. September 24, 1997] ANGELITA C. ORCINO, complainant, vs. ATTY. JOSUE GASPAR, respondent.** Canon 1 of the NCJC 15) In the matter of the allegations Contained in the Columns of Mr. Amadao P. Macaset Published in Malaya dated September 18, 19, 20, 21, 2007**

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Page 1: Pale Cases(Jake)

Canon 20

1) Pineda vs. De Jesus, G.R. No. 155224, Aug. 23, 2006**2) DOY Mercantile Inc. vs. AMA Computer College, G.R. No. 155311, Mar. 31, 2004**3) Concept Placement Resources Inc. vs Atty. Funk, G.R. No. 137680, Feb. 6, 20044) Macariola vs. Asuncion A.c. No. 133-J, May 31, 19825) Rayos vs Hernandez G.r. no. 169079, Feb. 12, 20076) Atty. Gubat vs. NPC, G.R. no. 167415, Feb. 26, 2010**7) ALEX B. CUETO, complainant, vs. ATTY. JOSE B. JIMENEZ, JR., respondent., [A.C.

No. 5798.  January 20, 2005]

Canon 21

8) Bun Siong Yao v. Aurelio A.c. No. 7023, March 30, 2006**9) Hilado v. David, g.r. No. L-961, Sept. 21, 1949**10) REBECCA J. PALM, vs ATTY. FELIPE ILEDAN, JR., A.C. No. 8242, Oct. 2, 2009**11) WILLIAM S. UY, complainant, vs. ATTY. FERMIN L. GONZALES, respondent.

A.C. No. 5280. March 30, 2004**

Canon 22

12) HUMBERTO C. LIM, JR. vs. ATTY. NICANOR V. VILLAROSA, A.C. No. 5303, June 15, 2006**13) VENTEREZ vs. ATTY. RODRIGO R. COSME, A. C. No. 7421, October 10, 2007**

14) [A.C. No. 3773.  September 24, 1997]ANGELITA C. ORCINO, complainant, vs. ATTY. JOSUE GASPAR, respondent.**

Canon 1 of the NCJC

15) In the matter of the allegations Contained in the Columns of Mr. Amadao P. Macaset Published in Malaya dated September 18, 19, 20, 21, 2007**

16) Ramirez vs. Corpuz-Macandog, A.M. No. R-351-RTJ, Sept. 26, 198617) Libarios vs. Dabalos, A.M. No. RTJ-89-286, July 11, 199118) Alfonso vs. Alonzo-Legasto, A.M. No. MTJ 94-995, Sept. 5, 2002**19) Tan vs. Rosete A.M. No. MTJ-04-1563, Sept. 8, 2004**20) JUDGE NAPOLEON E. INOTURAN vs JUDGE MANUEL Q. LIMSIACO, JR., , A.M. No. MTJ-01-1362,

February 22, 2011

Add’l Reading;[A.C. No. 4763.  March 20, 2003]

DR. GIL Y. GAMILLA, vs. ATTY. EDUARDO J. MARIÑO JR., respondent.

** Read for Saturday for recitation, all others just read

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1. G.R. No. 155224 August 23, 2006

VINSON B. PINEDA, Petitioner,vs.ATTY. CLODUALDO C. DE JESUS, ATTY. CARLOS AMBROSIO and ATTY. EMMANUEL MARIANO, Respondents.

D E C I S I O N

CORONA, J.:

The subject of this petition for review is the April 30, 2002 decision1 of the Court of Appeals in CA-G.R. CV No. 68080 which modified the order2 of the Regional Trial Court (RTC) of Pasig City, Branch 151, in JDRC Case No. 2568 entitled Ma. Aurora D. Pineda v. Vinson B. Pineda.

The facts follow.

On April 6, 1993, Aurora Pineda filed an action for declaration of nullity of marriage against petitioner Vinson Pineda in the RTC of Pasig City, Branch 151, docketed as JDRC Case No. 2568. Petitioner was represented by respondents Attys. Clodualdo de Jesus, Carlos Ambrosio and Emmanuel Mariano.

During the pendency of the case, Aurora proposed a settlement to petitioner regarding her visitation rights over their minor child and the separation of their properties. The proposal was accepted by petitioner and both parties subsequently filed a motion for approval of their agreement. This was approved by the trial court. On November 25, 1998, the marriage between petitioner and Aurora Pineda was declared null and void.

Throughout the proceedings, respondent counsels were well-compensated.3 They, including their relatives and friends, even availed of free products and treatments from petitioner’s dermatology clinic. This notwithstanding, they billed petitioner additional legal fees amounting to P16.5 million4 which the latter, however, refused to pay. Instead, petitioner issued them several checks totaling P1.12 million5 as "full payment for settlement."6

Still not satisfied, respondents filed in the same trial court7 a motion

for payment of lawyers’ fees for P50 million.8

On April 14, 2000, the trial court ordered petitioner to pay P5 million to Atty. de Jesus, P2 million to Atty. Ambrosio and P2 million to Atty. Mariano.

On appeal, the Court of Appeals reduced the amount as follows: P1 million to Atty. de Jesus, P500,000 to Atty. Ambrosio and P500,000 to Atty. Mariano. The motion for reconsideration was denied. Hence, this recourse.

The issues raised in this petition are:

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(1) whether the Pasig RTC, Branch 151 had jurisdiction over the claim for additional legal fees and

(2) whether respondents were entitled to additional legal fees.

First, a lawyer may enforce his right to his fees by filing the necessary petition as an incident of the main action in which his services were rendered or in an independent suit against his client. The former is preferable to avoid multiplicity of suits.9

The Pasig RTC, Branch 151, where the case for the declaration of nullity of marriage was filed, had jurisdiction over the motion for the payment of legal fees. Respondents sought to collect P50 million which was equivalent to 10% of the value of the properties awarded to petitioner in that case. Clearly, what respondents were demanding was additional payment for legal services rendered in the same case.

Second, the professional engagement between petitioner and respondents was governed by the principle of quantum meruit which means "as much as the lawyer deserves."10 The recovery of attorney’s fees on this basis is permitted, as in this case, where there is no express agreement for the payment of attorney’s fees. Basically, it is a legal mechanism which prevents an unscrupulous client from running away with the fruits of the legal services of counsel without paying for it. In the same vein, it avoids unjust enrichment on the part of the lawyer himself.

Further, Rule 20.4 of the Code of Professional Responsibility advises lawyers to avoid controversies with clients concerning their compensation and to resort to judicial action only to prevent imposition, injustice or fraud. Suits to collect fees should be avoided and should be filed only when circumstances force lawyers to resort to it.11

In the case at bar, respondents’ motion for payment of their lawyers’ fees was not meant to collect what was justly due them; the fact was, they had already been adequately paid.

Demanding P50 million on top of the generous sums and perks already given to them was an act of unconscionable greed which is shocking to this Court.

As lawyers, respondents should be reminded that they are members of an honorable profession, the primary vision of which is justice. It is respondents’ despicable behavior which gives lawyering a bad name in the minds of some people. The vernacular has a word for it: nagsasamantala. The practice of law is a decent profession and not a money-making trade. Compensation should be but a mere incident.12

Respondents’ claim for additional legal fees was not justified. They could not charge petitioner a fee based on percentage, absent an express agreement to that effect. The payments to them in cash, checks, free products and services from petitioner’s business — all of which were not denied by respondents — more than sufficed for the work they did. The "full payment for settlement"13 should have discharged petitioner’s obligation to them.

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The power of this Court to reduce or even delete the award of attorneys’ fees cannot be denied. Lawyers are officers of the Court and they participate in the fundamental function of administering justice.14 When they took their oath, they submitted themselves to the authority of the Court and subjected their professional fees to judicial control. 15

WHEREFORE, the petition is hereby PARTIALLY GRANTED. The decision of the Court of Appeals dated April 30, 2002 in CA–G.R. CV No. 68080 is hereby MODIFIED. The award of additional attorney’s fees in favor of respondents is hereby DELETED.

SO ORDERED.

2. G.R. No. 155311             March 31, 2004

DOY MERCANTILE, INC., petitioner, vs.AMA COMPUTER COLLEGE and ERNESTO RIOVEROS, respondents.

R E S O L U T I O N

TINGA, J.:

On June 1, 1990, petitioner Doy Mercantile, Inc. (DOY) through its then counsel, respondent Atty. Eduardo P. Gabriel, Jr., filed before the Regional Trial Court (RTC) of Cebu City a Complaint for Annulment of Contract, Damages with Preliminary Injunction against AMA Computer College, Inc. (AMA) and one Ernesto Rioveros.

Petitioner alleged that it owns Lots 2-A and 2-B, and the improvements thereon, located at No. 640 Osmeña Boulevard, Cebu City, covered by Transfer Certificate of Title (TCT) Nos. 68951 and 68952. DOY assailed the Deed of Conditional Sale supposedly executed by one of DOY’s directors, Dionisio O. Yap, in favor of AMA. Dionisio allegedly sold the properties to AMA without proper authorization from DOY’s Board of Directors. DOY also questioned the Secretary’s Certificate which was executed by DOY Corporate Secretary Francisco P. Yap, authorizing Dionisio to sell the properties and to sign the contract in behalf of DOY.

Through Atty. Gabriel, Jr., DOY filed an Urgent Ex Parte Motion for the Issuance of a Restraining Order, which was granted by the RTC on June 14, 1990. On June 23, 1990, Atty. Gabriel also filed an Answer to Defendant’s Counterclaim. On July 2, 1990, he filed DOY’s Formal Rejoinder to AMA’s Opposition for Issuance of Writ of Preliminary Injunction. He also filed on July 24, 1990, an Omnibus Motion seeking (1) the reconsideration of the order denying DOY’s application for a writ of preliminary injunction, (2) the setting of the case for pre-trial and trial on the merits, and (3) the imposition of disciplinary sanctions to Atty. Winston Garcia, who notarized the Deed of Conditional Sale and the Secretary’s Certificate. On August 31, 1990, Atty. Gabriel also filed a Rejoinder to AMA’s Opposition to Motion for Reconsideration, etc.

During this period, that is, before pre-trial, DOY filed a Petition for Certiorari, Prohibition with a Prayer for a Writ of Preliminary Injunction (CA-G.R. S.P. No. 22727) with the Court of

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Appeals. It questioned the Order of the RTC dated July 5, 1990, denying DOY’s prayer for the issuance of a writ of preliminary injunction and dissolving the temporary restraining order previously issued. DOY also assailed the Order dated August 10, 1990, which denied DOY’s Omnibus Motion. Atty. Gabriel, Jr., signed the petition together with Atty. Enrique C. Andres of the law firm of Salonga, Andres, Hernandez and Allado.

During pre-trial, AMA proposed to enter into a compromise agreement with DOY, which proposal the parties later agreed to adopt. The agreement was signed by Fernando Yap in behalf of DOY, with the assistance of Atty. Gabriel, Jr. and Atty. Andres. On November 29, 1990, a Judgment based on the compromise agreement was rendered by the RTC. In light of said compromise, the Court of Appeals dismissed CA-G.R. S.P. No. 22727 for mootness.

DOY, however, refused to satisfy Atty. Gabriel, Jr.’s attorney’s fees, prompting the lawyer to file with the RTC a Motion to Allow Commensurate Fees and to Annotate Attorney’s Lien on T.C.T. Nos. 68951 and 68952. At this point, DOY had already obtained the services of a new counsel to attend to the enforcement of the Judgment of the RTC.

On December 27, 1991, the RTC fixed Atty. Gabriel, Jr.’s fees at P200,000.00 and ordered that a lien be annotated on the TCTs. A Writ of Execution was later issued by the trial court in Atty. Gabriel, Jr.’s favor.

Upon Atty. Gabriel Jr.’s motion for reconsideration, the RTC increased his fees to P500,000.00. It then issued another Writ of Execution to enforce the new award but denied the Motion to Annotate the Award at the back of the TCTs.

DOY, for its part, filed several petitions with the Court of Appeals to set aside the RTC Orders involving the award of attorney’s fees. Eventually, the Court of Appeals rendered a Decision,1 fixing Atty. Gabriel, Jr.’s fees at P200,000.00 and affirming the subsequent Order of the RTC not to annotate such award on the TCTs.

This Decision is now the subject of the present petition.

DOY contends that the Decision is not consistent with the guidelines prescribed by Section 24, Rule 1382 of the Rules of Court and Rule 20.013 of the Code of Professional Responsibility. DOY avers that except for the statement that the compromise agreement benefited DOY and that Atty. Gabriel, Jr., was a competent lawyer, the Court of Appeals made no pronouncement as to the importance of the subject matter in controversy, the extent of services rendered and the professional standing of Atty. Gabriel, Jr., DOY also submits that the Court of Appeals should not have merely relied on the value of the properties involved as the basis for its award. Furthermore, while Atty. Gabriel admitted that he already received Eighty Two Thousand Nine Hundred Fifty Pesos (P82,950.00) from DOY for incidental and partial attorney’s fees, a fact affirmed by the Court of Appeals, the latter still awarded P200,000.00 to him.

Atty. Gabriel, Jr., comments, however, that the attorney’s fees awarded by the appellate court were commensurate and, perhaps, even less than, the value of the services he rendered. He then enumerates the pleadings he drafted and the appearances he made to dispose of the main case.

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Atty. Gabriel, Jr., also alleges that he handled interrelated cases for DOY. He purportedly prepared and filed with the Metropolitan Trial Court of Cebu City the following: a case for Illegal Detainer with Damages, an Opposition to Motion to Dismiss, an Opposition to Defendant’s Motion for Reconsideration, and a Motion to Dismiss.

Atty. Gabriel, Jr., also draws attention to the criminal case filed by Rolando Piedad, director of AMA, before the Office of the Cebu City Prosecutor charging Dionisio Yap and Francisco Yap with estafa through falsification of public document. He claims that it was he who prepared and filed with said Office the Joint Affidavit of Messrs. Dionisio and Francisco Yap against Rolando Piedad for Perjury, as well as the Yaps’ Counter-Affidavit in the criminal case. The case was eventually dismissed by the fiscal.

Finally, Atty. Gabriel, Jr., stresses that, through his efforts and resourcefulness, AMA had no choice but to concede to the compromise agreement resulting in the cancellation of the Deed of Conditional Sale between DOY and AMA. According to him, AMA was operating a school on the property, which did not have an area of at least 1,000 square meters as required of a school campus, in violation of the directives of the Department of Education, Culture and Sports (DECS). AMA also did not have a business permit from the city government. Atty. Gabriel thus made formal representations with the DECS and the City of Cebu, which ordered AMA to cease operations. Atty. Gabriel, Jr., also verified from the Philippine National Bank whether AMA applied for a loan with which to pay DOY as stipulated in the Deed of Conditional Sale, and was informed that AMA’s application was held in abeyance due to its poor credit reputation.

The petition has no merit. It is not accurate for petitioner to state that the Court of Appeals did not take into account the time spent and the extent of the services rendered by Atty. Gabriel Jr. The Court of Appeals found that:

That Atty. Gabriel, Jr. was the counsel of DMI [DOY] up to the time the compromise agreement was confirmed by the trial court. He only withdrew his appearance as counsel for co-plaintiffs Fred and Felipe Yap, who were eventually dropped as parties to the case, along with the other individual defendants, as it was held that only DMI was the real-party-in-interest.

It is evident that Atty. Gabriel, Jr. served as co-counsel together with Atty. Enrique C. Andres. DMI was assisted by the former. Evidence of which was the service of a copy of the Judgment Based on Compromise Agreement, including the Decision dated January 30, 1991, which dismissed C.A.-G.R. S.P. No. 22727, on Atty. Gabriel, Jr..

A perusal of the pleadings enumerated by the plaintiff-appellant reveals the competence of Atty. Gabriel, Jr. in handling the case. The degree and extent of service rendered by an attorney for a client is best measured in terms other than the mere number of sheets of paper.4

Indeed, the assailed Decision even contains an enumeration of the pleadings filed by counsel in behalf of his client.5

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In fixing the award of attorney’s fees, the Court of Appeals also considered the amount involved in the controversy and the benefits resulting to the client from the service in fixing Atty. Gabriel, Jr.’s fees, thus:

…. While it is true that Civil Case No. CEB 9043 was terminated by virtue of a compromise agreement by the parties, this is still to be taken as beneficial to DMI as the dispute was finally resolved without having to resort to a full-blown trial on the merits which often would take time before the light at the end of the tunnel may be seen.

….

DMI also assails the use of the value of the property involved in the litigation to serve as a basis or standard in computing and awarding attorney’s fees. A simple perusal of the provisions of Section 24, Rule 138 of the Revised Rules of Court, as well as Canon 20, Rule 20.01 of the Code of Professional Responsibility, would show that "the value of the property" was not enumerated as one of the factors but instead they used "the importance of the subject matter" as a determinant of the amount of award of attorney’s fees. Nevertheless, the Supreme Court has included as one of the determinants for the reasonableness of the award of attorney’s fees "the value of the property affected by the controversy." ….

....

The issue of the reasonableness of attorney’s fees based on quantum meruit is a question of fact and well-settled is the rule that conclusions and findings of fact by the lower courts are entitled to great weight on appeal and will not be disturbed except for strong and cogent reasons.

The trial court’s initial award of P2000,00.00 as attorney’s fees of Atty. Gabriel, Jr. is reasonable. On the other hand, the increased award of P500,000.00 cannot be justified, taking into account the recognized parameters of quantum meruit.6

The Court of Appeals then ended on this note:

Lastly, we take this occasion to reiterate the fact that while the practice of law is not a business, the attorney plays a vital role in the administration of justice and, hence, the need to secure to him his honorarium lawfully earned as a means to preserve the decorum and respectability of the legal profession. A lawyer is as much entitled to judicial protection against injustice or imposition on the part of his client just as the client can claim protection against abuse on the part of his counsel. The duty of the court is not alone to see that a lawyer acts in a proper and lawful manner, it is also its duty to see that a lawyer is paid his just fees. With his capital consisting only of his brains and with his skill acquired at tremendous cost not only in money but in expenditure of time and energy, he is entitled to the protection of any judicial tribunal against any attempt on the part of his client to escape payment of his just compensation. It would be ironic if, after

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putting forth the best in him to secure justice for his client, he himself would not get his due.7

This Court finds no reversible error in the above disquisition.

Petitioner’s contention that the appellate court should also have taken into account the importance of the subject matter in controversy and the professional standing of counsel in determining the latter’s fees is untenable. Although Rule 138 of the Rules of Court and Rule 20.01 of the Code of Professional Responsibility list several other factors in setting such fees, these are mere guides in ascertaining the real value of the lawyer’s service.8 Courts are not bound to consider all these factors in fixing attorney’s fees.

While a lawyer should charge only fair and reasonable fees,9 no hard and fast rule maybe set in the determination of what a reasonable fee is, or what is not. That must be established from the facts in each case.10 As the Court of Appeals is the final adjudicator of facts, this Court is bound by the former’s findings on the propriety of the amount of attorney’s fees.

ACCORDINGLY, the Court Resolved to DENY the Petition and AFFIRM the Decision of the Court of Appeals.

SO ORDERED.

6. G.R. No. 167415               February 26, 2010

ATTY. MANGONTAWAR M. GUBAT, Petitioner, vs.NATIONAL POWER CORPORATION, Respondent.

D E C I S I O N

DEL CASTILLO, J.:

Truly, there is no doubt that the rights of others cannot be prejudiced by private agreements. However, before this Court can act and decide to protect the one apparently prejudiced, we should remember what Aesop taught in one of his fables: Every truth has two sides; it is well to look at both, before we commit ourselves to either.

A lawyer asserts his right to his contingent fees after his clients, allegedly behind his back, had entered into an out-of-court settlement with the National Power Corporation (NPC). The trial court granted his claim by way of summary judgment. However, this was reversed by the Court of Appeals (CA) because the counsel was allegedly enforcing a decision that was already vacated. In this petition, petitioner Atty. Mangontawar M. Gubat (Atty. Gubat) attempts to persuade us that the compensation due him is independent of the vacated decision, his

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entitlement thereto being based on another reason: the bad faith of his clients and of the respondent NPC.

Factual Antecedents

In August 1990, plaintiffs Ala Mambuay, Norma Maba, and Acur Macarampat separately filed civil suits for damages against the NPC before the Regional Trial Court of Lanao del Sur in Marawi City (RTC), respectively docketed as Civil Case Nos. 294-90, 295-90, and 296-90. In the said complaint, plaintiffs were represented by Atty. Linang Mandangan (Atty. Mandangan) and petitioner herein, whose services were engaged at an agreed attorney’s fees of P30,000.00 for each case and P600.00 for every appearance. Petitioner was the one who signed the complaints on behalf of himself and Atty. Mandangan.1

During the course of the proceedings, the three complaints were consolidated because the plaintiffs’ causes of action are similar. They all arose from NPC’s refusal to pay the amounts demanded by the plaintiffs for the cost of the improvements on their respective lands which were destroyed when the NPC constructed the Marawi-Malabang Transmission Line.

On the day of the initial hearing on the merits, NPC and its counsel failed to appear. Consequently, respondent was declared in default. Despite the plea of NPC for the lifting of the default order, the RTC of Marawi City, Branch 8, rendered its Decision2 on April 24, 1991, the dispositive portion of which provides:

PREMISES CONSIDERED, judgment is hereby rendered in favor of the herein plaintiffs and against the defendant National Power Corporation as represented by its President Ernesto Aboitiz, P.M. Durias and Rodrigo P. Falcon, ordering the latter jointly and severally:

(1) In Civil Case No. 204-90 to pay plaintiff Ala Mambuay the sum of P103,000.00 representing the value of the improvements and the occupied portion of the land, P32,000.00 as attorney’s fees, P20,000.00 as moral and/or exemplary damages, P50,000.00 as actual damages and the costs;

(2) In Civil Case No. 295-90 to pay plaintiff Norma Maba represented by Capt. Ali B. Hadji Ali the sum of P146,700.00 representing the value of the improvements and the occupied portion of the land, P32,000.00 as attorney’s fees, P20,000.00 as moral and/or exemplary damages, P50,000.00 as actual damages and the costs;

(3) In Civil Case No. 296-90 to pay plaintiff Acur Macarampat the sum of P94,100.00 representing the value of the improvements and the occupied portion of the land, P32,000.00 as attorney’s fees, P20,000.00 as moral and/or exemplary damages, P50,000.00 as actual damages and the costs.3

NPC appealed to the CA which was docketed as CA-G.R. CV No. 33000. During the pendency of the appeal, Atty. Gubat filed an Entry and Notice of Charging Lien4 to impose his attorney’s lien of P30,000.00 and appearance fees of P2,000.00 on each of the three civil cases he handled, totalling P96,000.00.

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On August 19, 1992, NPC moved to dismiss its appeal5 alleging that the parties had arrived at a settlement. Attached to the motion were acknowledgment receipts6 dated April 2, 1992 signed by plaintiffs Acur Macarampat, Ala Mambuay, and Norma Maba, who received P90,060.00, P90,000.00, and P90,050.00 respectively, in full satisfaction of their claims against the NPC. The motion stated that copies were furnished to Atty. Mandangan and herein petitioner,

although it was only Atty. Mandangan’s signature which appeared therein.7

On January 24, 1996, the CA rendered its Decision8 disposing thus:

WHEREFORE, the Order of Default dated December 11, 1990; the Order denying the Motion for Reconsideration to Lift Order of Default dated January 25, 1991; and the Decision dated April 24, 1991, are hereby ANNULLED and SET ASIDE and the records of Civil Case Nos. 294-90, 295-90 and 296-90 are hereby ordered remanded to the court of origin for new trial.9

After the cases were remanded to the RTC, petitioner filed a Motion for Partial Summary Judgment10 on his attorney’s fees. He claimed that the plaintiffs and the NPC deliberately did not inform him about the execution of the compromise agreement, and that said parties connived with each other in entering into the compromise agreement in order to unjustly deprive him of his attorney’s fees. Furthermore, he alleged:

x x x x

12. That, in view of such settlement, there are no more genuine issues between the parties in the above-entitled cases except as to the attorney’s fees; As such, this Honorable Court may validly render a partial summary judgment on the claim for attorney’s fees; and

13. That the undersigned counsel hereby MOVES for a partial summary judgment on his lawful attorney’s fees based on the pleadings and documents on file with the records of this case.11

x x x x

Petitioner thus prayed that a partial summary judgment be rendered on his attorney’s fess and that NPC be ordered to pay him directly his lawful attorney’s fees of P32,000.00 in each of the above cases, for a total of P96,000.00.

NPC opposed the motion for partial summary of judgment. It alleged that a client may compromise a suit without the intervention of the lawyer and that petitioner’s claim for attorney’s fees should be made against the plaintiffs. NPC likewise claimed that it settled the case in good faith and that plaintiffs were paid in full satisfaction of their claims which included attorney’s fees.

On March 15, 2000, the trial court issued an Order12 granting petitioner’s motion for summary judgment. It found that the parties to the compromise agreement connived to petitioner’s

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prejudice which amounts to a violation of the provisions of the Civil Code on Human Relations.13 It ruled that:

x x x x

There is no dispute that the Compromise Agreement was executed during the pendency of these cases with the Honorable Court of Appeals. Despite the knowledge of the defendant that the services of the movant was on a contingent basis, defendant proceeded with the Compromise Agreement without the knowledge of Atty. Gubat. The actuation of the defendant is fraudulently designed to deprive the movant of his lawful attorney’s fees which was earlier determined and awarded by the Court. Had defendant been in good faith in terminating these cases, Atty. Gubat could have been easily contacted.

x x x x14

The dispositive portion of the Order reads:

WHEREFORE, premises considered, plaintiffs Ala Mambuay, Norma Maba and Acur Macarampat as well as defendant National Power Corporation are hereby ordered to pay jointly and solidarily Atty. Mangontawar M. Gubat the sum of P96,000.00.15

NPC filed a Motion for Reconsideration16 but the motion was denied by the

trial court in its June 27, 2000 Order.17 Thus, NPC filed a Petition for Certiorari18 before the CA docketed as CA-G.R. SP No. 60722, imputing grave abuse of discretion on the court a quo for granting petitioner’s Motion for Partial Summary Judgment. It prayed that the subject order be set aside insofar as NPC is concerned.

NPC maintained that it acted in good faith in the execution of the compromise settlement. It likewise averred that the lower court’s award of attorney’s fees amounting to P96,000.00 was clearly based on the award of attorney’s fees in the April 24, 1991 Decision of the trial court which had already been reversed and set aside by the CA in CA-G.R. CV No. 33000. Moreover, NPC contended that petitioner cannot enforce his charging lien because it presupposes that he has secured a favorable money judgment for his clients. At any rate, since petitioner is obviously pursuing the compensation for the services he rendered to his clients, thus, recourse should only be against them, the payment being their personal obligation and not of respondent. NPC further alleged that even assuming that the subject attorney’s fees are those that fall under Article 2208 of the Civil Code19 which is in the concept of indemnity for damages to be paid to the winning party in a litigation, such fees belong to the clients and not to the lawyer, and this form of damages has already been paid directly to the plaintiffs.

On the other hand, petitioner claimed that he was not informed of the compromise agreement or furnished a copy of NPC’s Motion to Dismiss Appeal. He alleged that the same was received only by Atty. Mandangan who neither signed any of the pleadings nor appeared in any of the hearings before the RTC. Petitioner clarified that his motion for a partial summary judgment was neither a request for the revival of the vacated April 24, 1991 Decision nor an enforcement of the

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lien, but a grant of his contingent fees by the trial court as indemnity for damages resulting from the fraudulent act of NPC and of his clients who conspired to deprive him of the fees due him. He asserted that NPC cannot claim good faith because it knew of the existence of his charging lien when it entered into a compromise with the plaintiffs.

Petitioner also alleged that NPC’s remedy should have been an ordinary appeal and not a petition for certiorari because the compromise agreement had settled the civil suits. Thus, when the trial court granted the motion for partial summary judgment on his fees, it was a final disposition of the entire case. He also argued that the issue of bad faith is factual which cannot be a subject of a certiorari petition. He also insisted that NPC’s petition was defective for lack of a board resolution authorizing Special Attorney Comie Doromal (Atty. Doromal) of the Office of the Solicitor General (OSG) to sign on NPC’s behalf.

On September 9, 2002, the CA rendered the herein assailed Decision20 ruling that:

The reasoning of Atty. Gubat is a ‘crude palusot’ (a sneaky fallacious reasoning) for how can one enforce a part of a decision which has been declared void and vacated. In legal contemplation, there is no more decision because, precisely, the case was remanded to the court a quo for further proceeding.

It was bad enough that Atty. Gubat tried to pull a fast [one] but it was [worse] that respondent Judge fell for it resulting in a plainly erroneous resolution.

Like his predecessor Judge Adiong, Judge Macarambon committed basic errors unquestionably rising to the level of grave abuse of discretion amounting to lack or excess of jurisdiction.

WHEREFORE, finding merit in the petition, the Court issues the writ of certiorari and strikes down as void the Order dated March 15, 2000 granting Atty. Mangontawar M. Gubat’s Motion for Partial Summary Judgment as well as the Order dated June 27, 2000 denying petitioner National Power Corporation’s Motion for Reconsideration.

SO ORDERED.21

Petitioner filed a motion for reconsideration but the motion was denied by the CA in its January 19, 2005 Resolution,22 Hence, this petition.

Petitioner insists on the propriety of the trial court’s order of summary judgment on his attorney’s fees. At the same time, he imputes grave abuse of discretion amounting to lack or excess of jurisdiction on the CA for entertaining respondent’s Petition for Certiorari. He maintains that the petition should have been dismissed outright for being the wrong mode of appeal.

Our Ruling

The petition lacks merit.

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Petitioner’s resort to Rule 65 is not proper.

At the outset, the petition should have been dismissed outright because petitioner resorted to the wrong mode of appeal by filing the instant petition for certiorari under Rule 65. Section 1 of the said Rule explicitly provides that a petition for certiorari is available only when there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law. In this case, the remedy of appeal by way of a petition for review on certiorari under Rule 45 is not only available but also the proper mode of appeal. For all intents and purposes, we find that petitioner filed the instant petition for certiorari under Rule 65 as a substitute for a lost appeal. We note that petitioner received a copy of the January 19, 2005 Resolution of the CA denying his motion for reconsideration on January 28, 2005. Under Section 2 of Rule 45, petitioner has 15 days from notice of the said Resolution within which to file his petition for review on certiorari. As such, he should have filed his appeal on or before February 12, 2005. However, records show that the petition was posted on March 1, 2005, or long after the period to file the appeal has lapsed.

At any rate, even if we treat the instant petition as one filed under Rule 45, the same should still be denied for failure on the part of the petitioner to show that the CA committed a reversible error warranting the exercise of our discretionary appellate jurisdiction.

Petitioner’s resort to summary judgment is not proper; he is not entitled to an immediate relief as a matter of law, for the existence of bad faith is a genuine issue of fact to be tried.

A summary judgment is allowed only if, after hearing, the court finds that except as to the amount of damages, the pleadings, affidavits, depositions and admissions show no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.23 The purpose of a summary judgment is to avoid drawn out litigations and useless delays because the facts appear undisputed to the mind of the court. Such judgment is generally based on the facts proven summarily by affidavits, depositions, pleadings, or admissions of the parties.24 For a full-blown trial to be dispensed with, the party who moves for summary judgment has the burden of demonstrating clearly the absence of genuine issues of fact, or that the issue posed is patently insubstantial as to constitute a genuine issue.25 "Genuine issue" means an issue of fact which calls for the presentation of evidence as distinguished from an issue which is fictitious or contrived.26

Petitioner pleaded for a summary judgment on his fees on the claim that the parties intentionally did not inform him of the settlement. He alleged that he never received a copy of NPC’s Motion to Withdraw Appeal before the CA and that instead, it was another lawyer who was furnished and who acknowledged receipt of the motion. When he confronted his clients, he was allegedly told that the NPC deceived them into believing that what they received was only a partial payment exclusive of the attorney’s fees. NPC contested these averments. It claimed good faith in the execution of the compromise agreement. It stressed that the attorney’s fees were already deemed included in the monetary consideration given to the plaintiffs for the compromise.

The above averments clearly pose factual issues which make the rendition of summary judgment not proper. Bad faith imports a dishonest purpose or some moral obliquity and conscious doing of a wrong. It is synonymous with fraud, in that it involves a design to mislead or deceive

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another.27 The trial court should have exercised prudence by requiring the presentation of evidence in a formal trial to determine the veracity of the parties’ respective assertions. Whether NPC and the plaintiffs connived and acted in bad faith is a question of fact and is evidentiary. Bad faith has to be established by the claimant with clear and convincing evidence, and this necessitates an examination of the evidence of all the parties. As certain facts pleaded were being contested by the opposing parties, such would not warrant a rendition of summary judgment.

Moreover, the validity or the correct interpretation of the alleged compromise agreements is still in issue in view of the diverse interpretations of the parties thereto. In fact, in the Decision of the CA dated January 24, 1996, the appellate court ordered the case to be remanded to the trial court for new trial, thereby ignoring completely NPC’s motion to dismiss appeal based on the alleged compromise agreements it executed with the plaintiffs. Even in its assailed Decision of September 9, 2002, the CA did not rule on the validity of the alleged compromise agreements. This is only to be expected in view of its earlier ruling dated January 24, 1996 which directed the remand of the case to the court of origin for new trial.

Considering the above disquisition, there is still a factual issue on whether the NPC and the plaintiffs had already validly entered into a compromise agreement. Clearly, the NPC and the plaintiffs have diverse interpretations as regards the stipulations of the compromise agreement which must be resolved. According to the NPC, the amounts it paid to the plaintiffs were in full satisfaction of their claims. Plaintiffs claim otherwise. They insist that the amounts they received were exclusive of attorney’s claim. They also assert that NPC undertook to pay the said attorney’s fees to herein petitioner.

A client may enter into a compromise agreement without the intervention of the lawyer, but the terms of the agreement should not deprive the counsel of his compensation for the professional services he had rendered. If so, the compromise shall be subjected to said fees. If the client and the adverse party who assented to the compromise are found to have intentionally deprived the lawyer of his fees, the terms of the compromise, insofar as they prejudice the lawyer, will be set aside, making both parties accountable to pay the lawyer’s fees. But in all cases, it is the client who is bound to pay his lawyer for his legal representation.

A compromise is a contract whereby the parties, by making reciprocal concessions, avoid litigation or put an end to one already commenced.28 It is a consensual contract, binding upon the signatories/privies, and it has the effect of res judicata.29 This cannot however affect third persons who are not parties to the agreement.30

Contrary to petitioner’s contention, a client has an undoubted right to settle a suit without the intervention of his lawyer,31 for he is generally conceded to have the exclusive control over the subject-matter of the litigation and may, at any time before judgment, if acting in good faith, compromise, settle, and adjust his cause of action out of court without his attorney’s intervention, knowledge, or consent, even though he has agreed with his attorney not to do so.32 Hence, a claim for attorney’s fees does not void the compromise agreement and is no obstacle to a court approval.33

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However, counsel is not without remedy. As the validity of a compromise agreement cannot be prejudiced, so should not be the payment of a lawyer’s adequate and reasonable compensation for his services should the suit end by reason of the settlement. The terms of the compromise subscribed to by the client should not be such that will amount to an entire deprivation of his lawyer’s fees, especially when the contract is on a contingent fee basis. In this sense, the compromise settlement cannot bind the lawyer as a third party. A lawyer is as much entitled to judicial protection against injustice or imposition of fraud on the part of his client as the client is against abuse on the part of his counsel. The duty of the court is not only to ensure that a lawyer acts in a proper and lawful manner, but also to see to it that a lawyer is paid his just fees.34

Even if the compensation of a counsel is dependent only upon winning a case he himself secured for his client, the subsequent withdrawal of the case on the client’s own volition should never completely deprive counsel of any legitimate compensation for his professional services.35 In all cases, a client is bound to pay his lawyer for his services. The determination of bad faith only becomes significant and relevant if the adverse party will likewise be held liable in shouldering the attorney’s fees.36

Petitioner’s compensation is a personal obligation of his clients who have benefited from his legal services prior to their execution of the compromise agreement. This is strictly a contract between them. NPC would only be made liable if it was shown that it has connived with the petitioner’s clients or acted in bad faith in the execution of the compromise agreement for the purpose of depriving petitioner of his lawful claims for attorney’s fees. In each case, NPC should be held solidarily liable for the payment of the counsel’s compensation. However, as we have already discussed, petitioner’s resort to summary judgment is not proper. Besides, it is interesting to note that petitioner is the only one claiming for his attorney’s fees notwithstanding that plaintiffs’ counsels of record were petitioner herein and Atty. Mandangan. Nevertheless, this is not at issue here. As we have previously discussed, this is for the trial court to resolve.

The CA soundly exercised its discretion in resorting to a liberal application of the rules. There are no vested right to technicalities.1avvphi1

Concededly, the NPC may have pursued the wrong remedy when it filed a petition for certiorari instead of an appeal since the ruling on attorney’s fees is already a ruling on the merits. However, we find that the trial court gravely abused its discretion amounting to lack or excess of jurisdiction when it ordered NPC solidarily liable with the plaintiffs for the payment of the attorney’s fees. The rule that a petition for certiorari is dismissible when the mode of appeal is available admits of exceptions, to wit: (a) when the writs issued are null; and, (b) when the questioned order amounts to an oppressive exercise of judicial authority.37 Clearly, respondent has shown its entitlement to the exceptions.

The same liberal application should also apply to the question of the alleged lack of authority of Atty. Doromal to execute the certification of non-forum shopping for lack of a board resolution from the NPC. True, only individuals vested with authority by a valid board resolution may sign the certificate of non-forum shopping in behalf of the corporation, and proof of such authority must be attached to the petition,38 the failure of which will be sufficient cause for dismissal. Nevertheless, it cannot be said that Atty. Doromal does not enjoy the presumption that he is

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authorized to represent respondent in filing the Petition for Certiorari before the CA. As Special Attorney, he is one of the counsels of NPC in the proceedings before the trial court, and the NPC never questioned his authority to sign the petition for its behalf.

In any case, the substantive issues we have already discussed are justifiable reasons to relax the rules of procedure. We cannot allow a patently wrong judgment to be implemented because of technical lapses. This ratiocination is in keeping with the policy to secure a just, speedy and inexpensive disposition of every action or proceeding.39 As we have explained in Alonso v. Villamor:40

There is nothing sacred about processes or pleadings, their forms or contents. Their sole purpose is to facilitate the application of justice to the rival claims of contending parties. They were created, not to hinder and delay, but to facilitate and promote, the administration of justice. They do not constitute the thing itself, which courts are always striving to secure to litigants. They are designed as the means best adopted to obtain that thing. In other words, they are a means to an end. When they lose the character of the one and become the other, the administration of justice is at fault and courts are correspondingly remiss in the performance of their obvious duty.

The error in this case is purely technical. To take advantage of it for other purposes than to cure it, does not appeal to a fair sense of justice. Its presentation as fatal to the plaintiff's case smacks of skill rather than right. A litigation is not a game of technicalities in which one more deeply schooled and skilled in the subtle art of movement and position, entraps and destroys the other. It is rather, a contest in which each contending party fully and fairly lays before the court the facts in issue and then, brushing aside as wholly trivial and indecisive all imperfections of form and technicalities of procedure, asks that justice be done upon the merits. Law-suits, unlike duels, are not to be won by a rapier's thrust. Technicality, when it deserts its proper office as an aid to justice and becomes its great hindrance and chief enemy, deserves scant consideration from courts. There should be no vested rights in technicalities. No litigant should be permitted to challenge a record of a court of these Islands for defect of form when his substantial rights have not been prejudiced thereby.

WHEREFORE, the Petition is hereby DISMISSED for lack of merit. The September 9, 2002 Decision of the Court of Appeals and its January 19, 2005 Resolution are AFFIRMED.

SO ORDERED.

8. A.C. No. 7023             March 30, 2006

BUN SIONG YAO, Complainant, vs.ATTY. LEONARDO A. AURELIO, Respondent.

D E C I S I O N

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YNARES-SANTIAGO, J.:

On November 11, 2004, a complaint-affidavit1 was filed against Atty. Leonardo A. Aurelio by Bun Siong Yao before the Integrated Bar of the Philippines (IBP) seeking for his disbarment for alleged violations of the Code of Professional Responsibility.

The complainant alleged that since 1987 he retained the services of respondent as his personal lawyer; that respondent is a stockholder and the retained counsel of Solar Farms & Livelihood Corporation and Solar Textile Finishing Corporation of which complainant is a majority stockholder; that complainant purchased several parcels of land using his personal funds but were registered in the name of the corporations upon the advice of respondent; that respondent, who was also the brother in-law of complainant’s wife, had in 1999 a disagreement with the latter and thereafter respondent demanded the return of his investment in the corporations but when complainant refused to pay, he filed eight charges for estafa and falsification of commercial documents against the complainant and his wife and the other officers of the corporation; that respondent also filed a complaint against complainant for alleged non-compliance with the reportorial requirements of the Securities and Exchange Commission (SEC) with the Office of the City Prosecutor of Mandaluyong City and another complaint with the Office of the City Prosecutor of Malabon City for alleged violation of Section 75 of the Corporation Code; that respondent also filed a similar complaint before the Office of the City Prosecutor of San Jose Del Monte, Bulacan.

Complainant alleged that the series of suits filed against him and his wife is a form of harassment and constitutes an abuse of the confidential information which respondent obtained by virtue of his employment as counsel. Complainant argued that respondent is guilty of representing conflicting interests when he filed several suits not only against the complainant and the other officers of the corporation, but also against the two corporations of which he is both a stockholder and retained counsel.

Respondent claimed that he handled several labor cases in behalf of Solar Textile Finishing Corporation; that the funds used to purchase several parcels of land were not the personal funds of complainant but pertain to Solar Farms & Livelihood Corporation; that since 1999 he was no longer the counsel for complainant or Solar Textile Finishing Corporation; that he never used any confidential information in pursuing the criminal cases he filed but only used those information which he obtained by virtue of his being a stockholder.

He further alleged that his requests for copies of the financial statements were ignored by the complainant and his wife hence he was constrained to file criminal complaints for estafa thru concealment of documents; that when he was furnished copies of the financial statements, he discovered that several parcels of land were not included in the balance sheet of the corporations; that the financial statements indicated that the corporations suffered losses when in fact it paid cash dividends to its stockholders, hence, he filed additional complaints for falsification of commercial documents and violation of reportorial requirements of the SEC.

On July 19, 2005, the Investigating Commissioner2 submitted a Report and Recommendation3 finding that from 1987 up to 1999, respondent had been the personal lawyer of the complainant

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and incorporator and counsel of Solar Farms & Livelihood Corporation. However, in 1999 complainant discontinued availing of the services of respondent in view of the admission of his (complainant’s) son to the bar; he also discontinued paying dividends to respondent and even concealed from him the corporations’ financial statements which compelled the respondent to file the multiple criminal and civil cases in the exercise of his rights as a stockholder.

The investigating commissioner further noted that respondent is guilty of forum shopping when he filed identical charges against the complainant before the Office of the City Prosecutor of Malabon City and in the Office of the City Prosecutor of San Jose del Monte, Bulacan. It was also observed that respondent was remiss in his duty as counsel and incorporator of both corporations for failing to advise the officers of the corporation, which he was incidentally a member of the Board of Directors, to comply with the reportorial requirements of the SEC and the Bureau of Internal Revenue. Instead, he filed cases against his clients, thereby representing conflicting interests.

The investigating commissioner recommended that respondent be suspended from the practice of law for a period of six months4 which was adopted and approved by the IBP Board of Governors.

We agree with the findings and recommendation of the IBP.

We find that the professional relationship between the complainant and the respondent is more extensive than his protestations that he only handled isolated labor cases for the complainant’s corporations. Aside from being the brother-in-law of complainant’s wife, it appears that even before the inception of the companies, respondent was already providing legal services to the complainant, thus:

COMM. NAVARRO:

Was there a formal designation or you where only called upon to do so?

ATTY. AURELIO:

Well, I understand in order to show to the employees that they have labor lawyer and at that time I went to the office at least half day every week but that was cut short. And so when there are cases that crop-up involving labor then they called me up.

x x x x

ATTY. OLEDAN:

Will counsel deny that he was the personal lawyer of the complainant long before he joined the company?

ATTY. AURELIO:

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Yes, with respect to the boundary dispute between his land and his neighbor but the subject matter of all the cases I filed they all revolved around the Financial Statement of the 2 corporations. I never devolves any information with respect to labor cases and the MERALCO case with respect to boundary dispute, nothing I used.

ATTY. OLEDAN:

Was he not also the lawyer at that time of complainant when he incorporated the second corporation in 1992?

ATTY. AURELIO:

Well, I was the one submitted the corporate papers and I think after that I have nothing to do with the SEC requirements regarding this corporation. Just to submit the incorporation papers to the SEC and anyway they have already done that before. They have already created or established the first corporation way back before the second corporation started and there was no instance where I dealt with the Financial Statement of the corporation with respect to its filing with the SEC.

ATTY. OLEDAN:

My only question is whether he incorporated and therefore was aware of the corporate matters involving Solar Farms?

ATTY. AURELIO:

As a stockholder I’m aware.

ATTY. OLEDAN:

As a lawyer?

ATTY. AURELIO:

Well, as a stockholder I’m aware.

x x x x

ATTY. OLEDAN:

You are not the one who filed….

ATTY. AURELIO:

I was the one who filed the corporate paper but that’s all the participation I had with respect to the requirement of the SEC with respect to the corporation.

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COMM. NAVARRO:

So, you acted as legal counsel of the corporation even before the initial stage of the incorporation?

ATTY. AURELIO:

There are two (2) corporations involving in this case, Your Honor, and the first was I think Solar Textile and this was….

COMM. NAVARRO:

You were already the legal counsel?

ATTY. AURELIO:

No, this was created before I became a stockholder.

COMM. NAVARRO:

Who was then the legal counsel before of Solar?

MR. YAO:

Siya pa rin pero hindi pa siya stockholder.

ATTY. OLEDAN:

Because, Your Honor, he happens to be the brother-in-law of the wife of the complainant and he is the husband of the wife of her sister so that’s why he was… (inaudible)… other legal matters even before the corporation that was formed and he became also a stockholder and in fact he charge the corporation certain amounts for professional service rendered it is part of the Resolution of the Office of the City Prosecutor of Malabon as annex to the complaint so he cannot say that he only presented, that he only filed the papers at SEC and aside from that when the corporation, the Solar Farms was already formed and the property which he is now questioning was purchased by complainant. He was the one who negotiated with the buyer, he was always with the complainant and precisely acted as complainant’s personal lawyer. The truth of the matter he is questioning the boundary and in fact complainant had survey conducted in said parcel of land which he bought with the assistance and legal advice of respondent and in fact complainant gave him only a copy of that survey. Him alone. And he used this particular copy to insists that this property allegedly belong to the corporation when in truth and in fact he was fully aware that it was the complainant’s personal funds that were used to pay for the whole area and this was supported by the stockholders who admitted that they were aware that the parcel of land which he claims does not appear in the Financial Statement of the corporation was purchased by the complainant subject to reimbursement by the Board and should the corporation finally have sufficient fund to cover the payment advance by complainant then the property will

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be transferred to the corporation. All of these facts he was privy to it, Your Honor, so he cannot say that and he is also a stockholder but the fact is, prior to the incorporation and during the negotiation he was the personal counsel of the complainant.5

It appears that the parties’ relationship was not just professional, but they are also related by affinity. The disagreement between complainant’s wife and the respondent affected their professional relationship. Complainant’s refusal to disclose certain financial records prompted respondent to retaliate by filing several suits.

It is essential to note that the relationship between an attorney and his client is a fiduciary one.6 Canon 17 of the Code of Professional Responsibility provides that a lawyer owes fidelity to the cause of his client and shall be mindful of the trust and confidence reposed on him. The long-established rule is that an attorney is not permitted to disclose communications made to him in his professional character by a client, unless the latter consents. This obligation to preserve the confidences and secrets of a client arises at the inception of their relationship. The protection given to the client is perpetual and does not cease with the termination of the litigation, nor is it affected by the party's ceasing to employ the attorney and retaining another, or by any other change of relation between them. It even survives the death of the client.7

Notwithstanding the veracity of his allegations, respondent’s act of filing multiple suits on similar causes of action in different venues constitutes forum-shopping, as correctly found by the investigating commissioner. This highlights his motives rather than his cause of action. Respondent took advantage of his being a lawyer in order to get back at the complainant. In doing so, he has inevitably utilized information he has obtained from his dealings with complainant and complainant’s companies for his own end.

Lawyers must conduct themselves, especially in their dealings with their clients and the public at large, with honesty and integrity in a manner beyond reproach.8 Lawyers cannot be allowed to exploit their profession for the purpose of exacting vengeance or as a tool for instigating hostility against any person—most especially against a client or former client. As we stated in Marcelo v. Javier, Sr.:9

A lawyer shall at all times uphold the integrity and dignity of the legal profession. The trust and confidence necessarily reposed by clients require in the attorney a high standard and appreciation of his duty to his clients, his profession, the courts and the public. The bar should maintain a high standard of legal proficiency as well as of honesty and fair dealing. Generally speaking, a lawyer can do honor to the legal profession by faithfully performing his duties to society, to the bar, to the courts and to his clients. To this end, nothing should be done by any member of the legal fraternity which might tend to lessen in any degree the confidence of the public in the fidelity, honesty and integrity of the profession.10 (Emphasis supplied)

In sum, we find that respondent's actuations amount to a breach of his duty to uphold good faith and fairness, sufficient to warrant the imposition of disciplinary sanction against him.

WHEREFORE, respondent Atty. Leonardo A. Aurelio is ordered SUSPENDED from the practice of law for a period of SIX (6) MONTHS effective upon receipt of this Decision. Let a

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copy of this Decision be furnished the Office of the Bar Confidant and the Integrated Bar of the Philippines. The Court Administrator is directed to circulate this order of suspension to all courts in the country.

SO ORDERED.

10. 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 ofP6,000 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.

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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 ofP90,466.10 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

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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

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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

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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

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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.

ANTONIO T. CARPIOAssociate Justice

WE CONCUR:

11. A.C. No. 5280             March 30, 2004

WILLIAM S. UY, complainant, vs.ATTY. FERMIN L. GONZALES, respondent.

R E S O L U T I O N

AUSTRIA-MARTINEZ, J.:

William S. Uy filed before this Court an administrative case against Atty. Fermin L. Gonzales for violation of the confidentiality of their lawyer-client relationship. The complainant alleges:

Sometime in April 1999, he engaged the services of respondent lawyer to prepare and file a petition for the issuance of a new certificate of title. After confiding with respondent the circumstances surrounding the lost title and discussing the fees and costs, respondent prepared, finalized and submitted to him a petition to be filed before the Regional Trial Court of Tayug, Pangasinan. When the petition was about to be filed, respondent went to his (complainant’s) office at Virra Mall, Greenhills and demanded a certain amount from him other than what they had previously agreed upon. Respondent left his office after reasoning with him. Expecting that said petition would be filed, he was shocked to find out later that instead of filing the petition for the issuance of a new certificate of title, respondent filed a letter-complaint dated July 26, 1999 against him with the Office of the Provincial Prosecutor of Tayug, Pangasinan for "Falsification of Public Documents."1 The letter-complaint contained facts and circumstances pertaining to

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the transfer certificate of title that was the subject matter of the petition which respondent was supposed to have filed. Portions of said letter-complaint read:

The undersigned complainant accuses WILLIAM S. UY, of legal age, Filipino, married and a resident of 132-A Gilmore Street corner 9th Street, New Manila, Quezon City, Michael Angelo T. UY, CRISTINA EARL T. UY, minors and residents of the aforesaid address, Luviminda G. Tomagos, of legal age, married, Filipino and a resident of Carmay East, Rosales, Pangasinan, and F. Madayag, with office address at A12, 2/F Vira Mall Shopping Complex, Greenhills, San Juan, Metro Manila, for ESTAFA THRU FALSIFICATION OF PUBLIC DOCUMENTS, committed as follows:

That on March 15, 1996, William S. Uy acquired by purchase a parcel of land consisting of 4.001 ha. for the amount of P100,000.00, Philippine Currency, situated at Brgy. Gonzales, Umingan, Pangasinan, from FERMIN C. GONZALES, as evidenced by a Deed of Sale executed by the latter in favor of the former…; that in the said date, William S. Uy received the Transfer Certificate of Title No. T-33122, covering the said land;

That instead of registering said Deed of Sale and Transfer Certificate of Title (TCT) No. T-33122, in the Register of Deeds for the purpose of transferring the same in his name, William S. Uy executed a Deed of Voluntary Land Transfer of the aforesaid land in favor of his children, namely, Michael Angelo T. Uy and Cristina Earl T. Uy, wherein William S. Uy made it appear that his said children are of legal age, and residents of Brgy. Gonzales, Umingan, Pangasinan, when in fact and in truth, they are minors and residents of Metro Manila, to qualify them as farmers/beneficiaries, thus placing the said property within the coverage of the Land Reform Program;

That the above-named accused, conspiring together and helping one another procured the falsified documents which they used as supporting papers so that they can secure from the Office of the Register of Deeds of Tayug, Pangasinan, TCT No. T-5165 (Certificate of Land Ownership Award No. 004 32930) in favor of his above-named children. Some of these Falsified documents are purported Affidavit of Seller/Transferor and Affidavit of Non-Tenancy, both dated August 20, 1996, without the signature of affiant, Fermin C. Gonzales, and that on that said date, Fermin C. Gonzales was already dead… ;

That on December 17, 1998, William S. Uy with deceit and evident intent to defraud undersigned, still accepted the amount of P340,000.00, from Atty. Fermin L. Gonzales, P300,000.00, in PNB Check No. 0000606, and P40,000.00, in cash, as full payment of the redemption of TCT No. 33122…knowing fully well that at that time the said TCT cannot be redeemed anymore because the same was already transferred in the name of his children;

That William S. Uy has appropriated the amount covered by the aforesaid check, as evidenced by the said check which was encashed by him…;

That inspite of repeated demands, both oral and in writing, William S. Uy refused and continue to refuse to deliver to him a TCT in the name of the undersigned or to return and repay the said P340,000.00, to the damage and prejudice of the undersigned.2

With the execution of the letter-complaint, respondent violated his oath as a lawyer and grossly disregarded his duty to preserve the secrets of his client. Respondent unceremoniously turned against him just because he refused to grant respondent’s request for additional compensation. Respondent’s act tarnished his reputation and social standing.3

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In compliance with this Court’s Resolution dated July 31, 2000,4 respondent filed his Comment narrating his version, as follows:

On December 17, 1998, he offered to redeem from complainant a 4.9 hectare-property situated in Brgy. Gonzales, Umingan, Pangasinan covered by TCT No. T-33122 which the latter acquired by purchase from his (respondent’s) son, the late Fermin C. Gonzales, Jr.. On the same date, he paid complainant P340,000.00 and demanded the delivery of TCT No. T-33122 as well as the execution of the Deed of Redemption. Upon request, he gave complainant additional time to locate said title or until after Christmas to deliver the same and execute the Deed of Redemption. After the said period, he went to complainant’s office and demanded the delivery of the title and the execution of the Deed of Redemption. Instead, complainant gave him photocopies of TCT No. T-33122 and TCT No. T-5165. Complainant explained that he had already transferred the title of the property, covered by TCT No.T-5165 to his children Michael and Cristina Uy and that TCT No. T-5165 was misplaced and cannot be located despite efforts to locate it. Wanting to protect his interest over the property coupled with his desire to get hold of TCT No. T-5165 the earliest possible time, he offered his assistance pro bono to prepare a petition for lost title provided that all necessary expenses incident thereto including expenses for transportation and others, estimated at P20,000.00, will be shouldered by complainant. To these, complainant agreed.

On April 9, 1999, he submitted to complainant a draft of the petition for the lost title ready for signing and notarization. On April 14, 1999, he went to complainant’s office informing him that the petition is ready for filing and needs funds for expenses. Complainant who was with a client asked him to wait at the anteroom where he waited for almost two hours until he found out that complainant had already left without leaving any instructions nor funds for the filing of the petition. Complainant’s conduct infuriated him which prompted him to give a handwritten letter telling complainant that he is withdrawing the petition he prepared and that complainant should get another lawyer to file the petition.

Respondent maintains that the lawyer-client relationship between him and complainant was terminated when he gave the handwritten letter to complainant; that there was no longer any professional relationship between the two of them when he filed the letter-complaint for falsification of public document; that the facts and allegations contained in the letter-complaint for falsification were culled from public documents procured from the Office of the Register of Deeds in Tayug, Pangasinan.5

In a Resolution dated October 18, 2000, the Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.6

Commissioner Rebecca Villanueva-Maala ordered both parties to appear on April 2, 2003 before the IBP.7 On said date, complainant did not appear despite due notice. There was no showing that respondent received the notice for that day’s hearing and so the hearing was reset to May 28, 2003.8

On April 29, 2003, Commissioner Villanueva-Maala received a letter from one Atty. Augusto M. Macam dated April 24, 2003, stating that his client, William S. Uy, had lost interest in pursuing the complaint he filed against Atty. Gonzales and requesting that the case against Atty. Gonzales be dismissed.9

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

The facts and evidence presented show that when respondent agreed to handle the filing of the Verified Petition for the loss of TCT No. T-5165, complainant had confided to respondent the fact of the loss and the circumstances attendant thereto. When respondent filed the Letter-Complaint to the Office of the Special Prosecutor in Tayug, Pangasinan, he violated Canon 21 of the Code of Professional Responsibility which expressly provides that "A lawyer shall preserve the confidences and secrets of his client even after the attorney-client relation is terminated." Respondent cannot argue that there was no lawyer-client relationship between them when he filed the Letter-Complaint on 26 July 1999 considering that as early

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as 14 April 1999, or three (3) months after, respondent had already terminated complainant’s perceived lawyer-client relationship between them. The duty to maintain inviolate the client’s confidences and secrets is not temporary but permanent. It is in effect perpetual for "it outlasts the lawyer’s employment" (Canon 37, Code of Professional Responsibility) which means even after the relationship has been terminated, the duty to preserve the client’s confidences and secrets remains effective. Likewise Rule 21.02, Canon 21 of the Rules of Professional Responsibility provides that "A lawyer shall not, to the disadvantage of his client, use information acquired in the course of employment, nor shall he use the same to his own advantage or that of a third person, unless the client with the full knowledge of the circumstances consents thereto."

On 29 April 2003, the Commission received a letter dated 24 April 2003 from Atty. Augusto M. Macam, who claims to represent complainant, William S. Uy, alleging that complainant is no longer interested in pursuing this case and requested that the same be dismissed. The aforesaid letter hardly deserves consideration as proceedings of this nature cannot be "interrupted by reason of desistance, settlement, compromise, restitution, withdrawal of the charges, or failure of the complainant to prosecute the same. (Section 5, Rule 139-B, Rules of Court). Moreover, inBoliver vs. Simbol, 16 SCRA 623, the Court ruled that "any person may bring to this Court’s attention the misconduct of any lawyer, and action will usually be taken regardless of the interest or lack of interest of the complainant, if the facts proven so warrant."

IN VIEW OF THE FOREGOING, we find respondent Atty. Fermin L. Gonzales to have violated the Code of Professional Responsibility and it is hereby recommended that he be SUSPENDED for a period of SIX (6) MONTHS from receipt hereof, from the practice of his profession as a lawyer and member of the Bar.10

On June 21, 2003, the Board of Governors of the Integrated Bar of the Philippines issued Resolution No. XV-2003-365, thus:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution/Decision as Annex "A"; and finding the recommendation fully supported by the evidence on record and applicable laws and rules, and considering that respondent violated Rule 21.02, Canon 21 of the Canons of Professional Responsibility, Atty. Fermin L. Gonzales is hereby SUSPENDED from the practice of law for six (6) months.11

Preliminarily, we agree with Commissioner Villanueva-Maala that the manifestation of complainant Uy expressing his desire to dismiss the administrative complaint he filed against respondent, has no persuasive bearing in the present case.

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

….

No investigation shall be interrupted or terminated by reason of the desistance, settlement, compromise, restitution, withdrawal of the charges, or failure of the complainant to prosecute the same.

This is because:

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A proceeding for suspension or disbarment is not in any sense a civil action where the complainant is a plaintiff and the respondent lawyer is a defendant. Disciplinary proceedings involve no private interest and afford no redress for private grievance. They are undertaken and prosecuted solely for the public welfare. They are undertaken for the purpose of preserving courts of justice from the official ministration of persons unfit to practice in them. The attorney is called to answer to the court for his conduct as an officer of the court. The complainant or the person who called the attention of the court to the attorney's alleged misconduct is in no sense a party, and has generally no interest in the outcome except as all good citizens may have in the proper administration of justice. Hence, if the evidence on record warrants, the respondent may be suspended or disbarred despite the desistance of complainant or his withdrawal of the charges.12

Now to the merits of the complaint against the respondent.

Practice of law embraces any activity, in or out of court, which requires the application of law, as well as legal principles, practice or procedure and calls for legal knowledge, training and experience.13 While it is true that a lawyer may be disbarred or suspended for any misconduct, whether in his professional or private capacity, which shows him to be wanting in moral character, in honesty, probity and good demeanor or unworthy to continue as an officer of the court,14complainant failed to prove any of the circumstances enumerated above that would warrant the disbarment or suspension of herein respondent.

Notwithstanding respondent’s own perception on the matter, a scrutiny of the records reveals that the relationship between complainant and respondent stemmed from a personal transaction or dealings between them rather than the practice of law by respondent. Respondent dealt with complainant only because he redeemed a property which complainant had earlier purchased from his (complainant’s) son. It is not refuted that respondent paid complainant P340,000.00 and gave him ample time to produce its title and execute the Deed of Redemption. However, despite the period given to him, complainant failed to fulfill his end of the bargain because of the alleged loss of the title which he had admitted to respondent as having prematurely transferred to his children, thus prompting respondent to offer his assistance so as to secure the issuance of a new title to the property, in lieu of the lost one, with complainant assuming the expenses therefor.

As a rule, an attorney-client relationship is said to exist when a lawyer voluntarily permits or acquiesces with the consultation of a person, who in respect to a business or trouble of any kind, consults a lawyer with a view of obtaining professional advice or assistance. It is not essential that the client should have employed the attorney on any previous occasion or that any retainer should have been paid, promised or charged for, neither is it material that the attorney consulted did not afterward undertake the case about which the consultation was had, for as long as the advice and assistance of the attorney is sought and received, in matters pertinent to his profession.15

Considering the attendant peculiar circumstances, said rule cannot apply to the present case. Evidently, the facts alleged in the complaint for "Estafa Through Falsification of Public Documents" filed by respondent against complainant were obtained by respondent due to his personal dealings with complainant. Respondent volunteered his service to hasten the issuance of the certificate of title of the land he has redeemed from complainant. Respondent’s immediate objective was to secure the title of the property that complainant had earlier bought from his son. Clearly, there was no attorney-client relationship between respondent and complainant. The preparation and the proposed filing of the petition was only incidental to their personal transaction.

Canon 21 of the Code of Professional Responsibility reads:

Canon 21 – A LAWYER SHALL PRESERVE THE CONFIDENCE AND SECRETS OF HIS CLIENT EVEN AFTER THE ATTORNEY-CLIENT RELATION IS TERMINATED.

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

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

b) When required by law;

c) When necessary to collect his fees or to defend himself, his employees or associates or by judicial action.

The alleged "secrets" of complainant were not specified by him in his affidavit-complaint. Whatever facts alleged by respondent against complainant were not obtained by respondent in his professional capacity but as a redemptioner of a property originally owned by his deceased son and therefore, when respondent filed the complaint for estafa against herein complainant, which necessarily involved alleging facts that would constitute estafa, respondent was not, in any way, violating Canon 21. There is no way we can equate the filing of the affidavit-complaint against herein complainant to a misconduct that is wanting in moral character, in honesty, probity and good demeanor or that renders him unworthy to continue as an officer of the court. To hold otherwise would be precluding any lawyer from instituting a case against anyone to protect his personal or proprietary interests.

WHEREFORE, Resolution No. XV-2003-365 dated June 21, 2003 of the Integrated Bar of the Philippines is REVERSED and SET ASIDE and the administrative case filed against Atty. Fermin L. Gonzales, docketed as A.C. No. 5280, is DISMISSED for lack of merit.

SO ORDERED.

12. A.C. No. 5303             June 15, 2006

HUMBERTO C. LIM, JR., in behalf of PENTA RESORTS CORPORATION/Attorney-in-Fact of LUMOT A. JALANDONI, Complainant, vs.ATTY. NICANOR V. VILLAROSA, Respondent.

R E S O L U T I O N

CORONA, J.:

Humberto C. Lim Jr.1 filed a verified complaint for disbarment against respondent Atty. Nicanor V. Villarosa on July 7, 2000.2 On February 19, 2002, respondent moved for the consolidation of the said complaint with the following substantially interrelated cases earlier filed with the First Division of this Court:

1. Administrative Case No. 5463: Sandra F. Vaflor v. Atty. Adoniram P. Pamplona and Atty. Nicanor V. Villarosa;

2. Administrative Case No. 5502: Daniel A. Jalandoni v. Atty. Nicanor V. Villarosa.

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In a resolution dated February 24, 2003, this Court considered Administrative Case No. 5463 closed and terminated.3 On February 4, 2004, considering the pleadings filed in Administrative Case No. 5502, the Court resolved:

(a) to NOTE the notice of the resolution dated September 27, 2003 of the Integrated Bar of the Philippines dismissing the case against respondent for lack of merit; and

(b) to DENY, for lack of merit, the petition filed by complainant praying that the resolution of the Integrated Bar of the Philippines dismissing the instant case be reviewed and that proper sanctions be imposed upon respondent.4

No motion for reconsideration of the aforesaid denial in Administrative Case No. 5502 appears in the records. The Court is now called upon to determine the merits of this remaining case (A.C. No. 5303) against respondent.

The complaint read:

AS FIRST CAUSE OF ACTION

xxx xxx xxx

- II -

That respondent is a practicing lawyer and a member of the Integrated Bar of the Philippines, Bacolod City, Negros Occidental Chapter…. That sometime on September 19, 1997, Lumot A. Jalandoni, Chairman/President of PRC was sued before RTC, Branch 52 in Civil Case No. 97-9865, RE: Cabiles et al. vs. Lumot Jalandoni, et al. The latter engaged the legal services of herein respondent who formally entered his appearance on October 2, 1997 as counsel for the defendants Lumot A. Jalandoni/Totti Anlap Gargoles…. Respondent as a consequence of said Attorney-Client relationship represented Lumot A. Jalandoni et al in the entire proceedings of said case. Utmost trust and confidence was reposed on said counsel, hence delicate and confidential matters involving all the personal circumstances of his client were entrusted to the respondent. The latter was provided with all the necessary information relative to the property in question and likewise on legal matters affecting the corporation (PRC) particularly [involving] problems [which affect] Hotel Alhambra. Said counsel was privy to all transactions and affairs of the corporation/hotel….

- III -

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That it was respondent who exclusively handled the entire proceedings of afore-cited Civil Case No. 97-9865 [and] presented Lumot A. Jalandoni as his witness prior to formally resting his case. However, on April 27, 1999 respondent, without due notice prior to a scheduled hearing, surprisingly filed a Motion to withdraw as counsel, one day before its scheduled hearing on April 28, 1999…. A careful perusal of said Motion to Withdraw as Counsel will conclusively show that no copy thereof was furnished to Lumot A. Jalandoni, neither does it bear her conformity…. No doubt, such notorious act of respondent resulted to (sic) irreparable damage and injury to Lumot A. Jalandoni, et al since the decision of the court RTC, Branch 52 proved adverse to Lumot A. Jalandoni, et al…. The far reaching effects of the untimely and unauthorized withdrawal by respondent caused irreparable damage and injury to Lumot A. Jalandoni, et al; a highly meritorious case in favor of his client suddenly [suffered] unexpected defeat.

- IV -

That the grounds alleged by respondent for his withdrawal as counsel of Lumot A. Jalandoni, et al. was that he is [a] retained counsel of Dennis G. Jalbuena and the Fernando F. Gonzaga, Inc. It was Dennis G. Jalbuena who recommended him to be the counsel of Lumot A. Jalandoni, et al. It is worthy to note that from the outset, respondent already knew that Dennis G. Jalbuena is the son-in-law of Lumot A. Jalandoni being married to her eldest daughter, Carmen J. Jalbuena. The other directors/officers of PRC were comprised of the eldest sibling of the remaining children of Lumot A. Jalandoni made in accordance with her wishes, with the exception of Carmen J. Jalbuena, the only daughter registered as one of the incorporators of PRC, obviously, being the author of the registration itself [sic]…. Respondent further stated that he cannot refuse to represent Dennis G. Jalbuena in the case filed against the latter before the City Prosecutors Office by PRC/Lumot A. Jalandoni due to an alleged retainership agreement with said Dennis G. Jalbuena. [He] likewise represented Carmen J. Jalbuena and one Vicente Delfin when PRC filed the criminal complaint against them…. On April 06, 1999, twenty-one (21) days prior to respondent’s filing of his Motion to Withdraw as Counsel of Lumot A. Jalandoni, et al., respondent entered his appearance with Bacolod City Prosecutor OIC-Vicente C. Acupan, through a letter expressly stating that effective said date he was appearing as counsel for both Dennis G. Jalbuena and Carmen J. Jalbuena and Vicente Delfin in the "Estafa" case filed by the corporation (PRC) against them…. Simply stated, as early as April 6, 1999 respondent already appeared for and in behalf of the Sps. Carmen and Dennis Jalbuena/Vicente Delfin while concurrently representing Lumot A. Jalandoni, et al. in Civil Case No. 97-9865…. However, despite being fully aware that the interest of his client Lumot A. Jalandoni [holding an equivalent of Eighty-two (82%) percent of PRC’s shares of stocks] and the interest of PRC are one and the same, notwithstanding the fact that Lumot A.

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Jalandoni was still his client in Civil Case No. 97-9862, respondent opted to represent opposing clients at the same time. The corporation’s complaint for estafa (P3,183,5525.00) was filed against the Sps. Dennis and Carmen J. Jalbuena together with UCPB bank manager Vicente Delfin. Succeeding events will show that respondent instead of desisting from further violation of his [lawyer’s] oath regarding fidelity to his client, with extreme arrogance, blatantly ignored our laws on Legal Ethics, by palpably and despicably defending the Sps. Dennis and Carmen J. Jalbuena in all the cases filed against them by PRC through its duly authorized representatives, before the Public Prosecutors Office, Bacolod City (PP vs. Sps. Dennis and Carmen J. Jalbuena for False Testimony/Perjury, viol. of Art. 183 RPC under BC I.S. No. 2000-2304; viol. of Art. 363, 364, 181 and 183 RPC under BC I.S. 2000-2343, PP vs. Carmen J. Jalbuena for viol. of Art. 315 … under BC I.S. 2000-2125 and various other related criminal cases against the Sps. Dennis and Carmen Jalbuena)….

AS SECOND CAUSE OF ACTION

xxx xxx xxx

- I -

xxx xxx xxx

There is no dispute that respondent was able to acquire vast resources of confidential and delicate information on the facts and circumstances of [Civil Case No. 97-9865] when Lumot A. Jalandoni was his client … which knowledge and information was acquired by virtue of lawyer-client relationship between respondent and his clients. Using the said classified information which should have been closely guarded … respondent did then and there, willfully, unlawfully, feloniously conspired and confabulated with the Sps. Dennis and Carmen J. Jalbuena in concocting the despicable and fabricated charges against his former clients denominated as PP vs. Lumot A. Jalandoni, Pamela J. Yulo, Cristina J. Lim and Leica J. Lim for viol. of Art. 172 of Revised Penal Code due to a board resolution executed by the corporation which the Sps. Jalbuena, with the assistance of herein respondent, claimed to have been made without an actual board meeting due to an alleged lack of quorum, [among other things]. Were it not for said fiduciary relation between client and lawyer, respondent will not be in a position to furnish his conspirator spouses with confidential information on Lumot A. Jalandoni/PRC, operator of Alhambra Hotel.

- II -

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Adding insult to injury, respondent opted to deliberately withhold the entire case file including the marked exhibits of the Cabiles case for more than three (3) months after his untimely unilateral withdrawal therefrom, despite repeated demands from [his] client. On July 26, 1999, capitalizing on his knowledge of the indispensability of said documents particularly the marked exhibits, which deadline to file the formal offer of exhibits was continually impressed upon the new counsel by the court, respondent suddenly interposed an amount of five thousand (P5,000.00) pesos as consideration prior to or simultaneous to the turnover of said documents…. [On] July 29, 1999, left with no other alternative owing to the urgency of the situation, PRC issued Check No. 2077686 for P5,000.00 in payment thereof. This was duly received by respondent’s office on the same date…. Such dilatory tactics employed by respondent immensely weakened the case of Lumot A. Jalandoni eventually resulting to (sic) an adverse decision against [her]….

Further demonstrating before this Honorable Court the notoriety of respondent in representing conflicting interest which extended even beyond the family controversy was his improper appearance in court in Civil Case No. 99-10660, RE: Amy Albert Que vs. Penta Resorts Corp., this time favoring the party opponent of defendant who is even outside the family circle. During the pre-trial hearing conducted on May 5, 1999, while still [holding] exclusive possession of the entire case file of his client in Civil Case No. 97-9865, respondent brazenly positioned himself beside Atty. Adoniram P. Pamplona, counsel of plaintiff [in] a suit against his client Lumot A. Jalandoni/PRC, coaching said counsel on matters [he was privy to] as counsel of said client. Facts mentioned by said counsel of the plaintiff starting from the last par. of page 25 until and including the entire first par. of page 26 were the exact words dictated by respondent. The entire incident was personally witnessed by herein complainant [who was] only an arms length away from them during the hearing…. However, the particular portion showing the said irregular acts of respondent was deliberately excluded by the court stenographer from the transcript, despite her detailed recollection and affirmation thereof to herein complainant. This prompted the new counsel of Lumot A. Jalandoni/PRC to complain to the court why Atty. Nicanor Villarosa was coaching Atty. Pamplona in such proceedings…. Said corrections were only effected after repeated demands to reflect the actual events which [transpired] on said pre-trial….5 (emphasis ours)

In an addendum to the July 4, 2000 complaint, Lim also pointed to certain acts of respondent which allegedly violated the Rules of Court ― perpetration of falsehood and abuse of his influence as former public prosecutor. These supposedly affected the status of the cases that Lim filed against the clients of respondent.6

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In a motion to dismiss dated October 30, 2000, respondent claimed that the complainant violated Circular No. 48-2000 because, in his verification, Lim stated:

3. That [he] prepared this instant complaint for disbarment against Atty. Nicanor V. Villarosa, read its contents, the same are all true and correct to [his] own personal knowledge and belief.7 (emphasis ours)

Section 4, Rule 7 of the Rules of Court explicitly provides that:

SEC. 4. Verification. – Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit. (5a)

A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records.

A pleading required to be verified which contains verification based on "information and belief" or upon "knowledge, information and belief," or lacks a proper verification, shall be treated as an unsigned pleading. (As amended, A.M. 00-2-10, May 1, 2000.) (emphasis ours)

While the Rules provide that an unsigned pleading produces no legal effect,8 the court may, in its discretion, allow such deficiency to be remedied if it appears that the same was due to mere inadvertence and not intended for delay.9 We find that Lim was not shown to have deliberately filed the pleading in violation of the Rules.

In his comment dated December 1, 2000, respondent, reiterating his ground for the dismissal of the complaint, added:

[that] complainant Humberto C. Lim, Jr. has not only violated the Rule on Civil Procedure but he was/is NOT duly authorize[d] by the Penta Resorts Corp. (PRC) nor [by] Lumot A. Jalandoni to file this complaint against [him]. Neither [was Lim] a proper party to file this complaint. This fact is an additional ground to have his case dismissed because Humberto C. Lim Jr. exceeded whatever authority was granted to him as embodied in a resolution and the Special Power of Attorney allegedly granted to him by the complainants.10

To bolster his assertion that the complaint against him was unfounded, respondent presented the following version in his defense:

FACTS OF THE CASE

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xxx xxx xxx

That Mrs. Jalandoni has two sons-in-law, namely Dennis G. Jalbuena married to her daughter, Carmen J. Jalbuena, and Humberto C. Lim Jr., the herein complainant married to her daughter, Cristina J. Lim.

That Mrs. Lumot Jalandoni organized a corporation namely the Penta Resorts Corporation (PRC) where she owned almost ninety seven percent (97%). In other words, in reality, Penta Resorts Corporation is a single proprietorship belonging to Mrs. Jalandoni. That the only property of the corporation is as above-stated, the Alhambra Hotel, constructed solely through the effort of the spouses Jalbuena on that parcel of land now claimed by the Cabiles family.

That sometime on the year 1997 the case above-cited (Civil Case No. 97-9865) was filed before the court against the sisters.

That [he], being RETAINED counsel of the spouses Dennis and Carmen J. Jalbuena was RECOMMENDED by the spouses to the sisters to answer the complaint filed against them.

II.

That as counsel to the sisters, [he] filed a Motion for Extension Of Time To File Answer … and ultimately, [he] filed an Answer With Counter-Claim And Prayer For Issuance Of Writ Of Preliminary Injunction….

That reading the Answer … it is clear that the defense of the sisters totally rest on public documents (the various titles issued to the land in question because of the series [of changes] in ownership) and the sisters’ and their parents’ actual occupation and possession thereof. xxx xxx xxx

Mr. Lim[’s] accusation against [him] in the light of the above-facts is the best evidence of Humberto C. Lim, Jr.’s penchant for exaggeration and distortion of the truth. Since the defense of the sisters to retain ownership of the land in question is based on PUBLIC documents, what delicate and confidential matters involving personal circumstances of the sisters allegedly entrusted to [him], is Mr. Humberto C. Lim, Jr. talking about in paragraphs I and II of his Complaint? What [privity] to all transactions and affairs of the corporation/hotel is he referring to? Whatever transactions the corporation may have been involved in or [may be getting involved into], is totally immaterial and irrelevant to the defense of the sisters.

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There was nothing personal [about the] circumstances of the sisters nor transactions of the corporation [which were] discussed. The documents being offered as evidence, [he] reiterate[s] for emphasis, are public; the presumption is that the whole world knows about them….

That [he] [also] vehemently den[ies] another distorted allegation of Mr. Lim that [he] represented Mrs. Jalandoni [in] theentire proceedings of [the] case. [Lim] himself attested that [he] [filed] [his] Motion to Withdraw As Counsel, dated April 26, 1999 … , before the trial court, sometime on April 27, 1999. How then could [he] have represented Mrs. Jalandoni for [the] entire proceedings of the case?

Further, Mr. Lim intentionally hid from this Honorable Court the important fact that [his] Motion to Withdraw wasAPPROVED by the trial court because of the possibility of a conflict of interest. xxx xxx xxx. 11

Respondent discredited Lim’s claim that he deliberately withheld the records of the cited civil case. He insisted that it took him just a few days, not three months, to turn over the records of the case to Lim.12 While he admitted an oversight in addressing the notice of the motion to withdraw as counsel to Mrs. Totti Anlap Gargoles instead of Mrs. Jalandoni at Hotel Alhambra, he maintained that it was the height of hypocrisy to allege that Mrs. Jalandoni was not aware of his motion to withdraw13 since Mrs. Gargoles is Mrs. Jalandoni’s sister and Hotel Alhambra is owned by PRC which, in turn, actually belongs to Mrs. Jalandoni. Respondent also argued that no prejudice was suffered by Mrs. Jalandoni because she was already represented by Atty. Lorenzo S. Alminaza from the first hearing date.14 In fact, respondent contended, it was he who was not notified of the substitution of counsels.15

As to the bill of P 5,000, respondent stated:

That Mr. Lim begrudge[s] [him] for billing Mrs. Jalandoni Five Thousand (Php5,000.00) Pesos. Mr. Humberto C. Lim Jr. conveniently forgets that the net worth of the property together with its improvements, under litigation in that Cabiles, et al. vs. Gargoles et al. case, is a minimum of THIRTY MILLION (Php30,000,000.00) PESOS then, and more so now. [He] cannot find any law which prohibits a counsel from billing a client for services in proportion to the services he rendered.16

In view of these developments, respondent was adamant that:

the only real question to be answered in this complaint is why Mr. Lim so consistently [determined] to immerse the Jalandoni family [in] a series of criminal and civil suits and to block all attempts to reconcile the family by prolonging

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litigations, complaints and filing of new ones in spite of the RESOLUTION of the corporation and the UNDERTAKING of the members….17

On June 18, 2001, the Court resolved to refer the complaint to the Integrated Bar of the Philippines (IBP) for investigation. Commissioner Lydia A. Navarro made the following report and recommendation:

xxx xxx xxx

After going over the [pieces of evidence] submitted by the parties[,] the undersigned noted that from the onset, PRC had a case wherein respondent was its counsel. Later on, complainant had a case against spouses Jalbuena where the parties were related to each other and the latter spouses were represented by the respondent as their retained counsel; after respondent had allegedly withdrawn as counsel for the complainant in Civil Case No. 97-9865.

Being the husband of one of the complainants which respondent himself averred in his answer, it is incumbent upon Humberto Lim Jr. to represent his wife as one of the representatives of PRC and Alhambra Hotel in the administrative complaint to protect not only her interest but that of the [family’s].

From the facts obtaining, it is evident that complainant had a lawyer-client relationship with the respondent before the latter [was] retained as counsel by the Spouses Jalbuena when the latter were sued by complainant’s representative.

We cannot disregard the fact that on this situation for some reason or another there existed some confidentiality and trust between complainants and respondent to ensure the successful defense of their cases.

Respondent for having appeared as counsel for the Spouses Jalbuena when charged by respondent’s former client Jalandoni of PRC and Alhambra Hotel, represented conflicting interests … in violation of the Canon of Professional Responsibility.

As such therefore, the Undersigned has no alternative but to respectfully recommend the suspension of the respondent from the practice of law for a period of six (6) months from receipt hereof.

RESPECTFULLY SUBMITTED.

Pasig City, June 20, 2002.18

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The IBP Board of Governors (Board), however, reversed the recommendation of the investigating commissioner and resolved to dismiss the case on August 3, 2002.19 Lumot A. Jalandoni filed a motion for reconsideration (MR) on October 18, 2002 but the Board denied the MR since it no longer had jurisdiction to consider and resolve a matter already endorsed

to this Court.20

Before delving into the core issues of this case, we need to address some preliminary matters.

Respondent argues that the alleged resolution of PRC and the special power of attorney given by Lumot A. Jalandoni to Humberto did not contemplate the filing of an administrative complaint.21 Citing the Rules of Court, respondent said that:

[s]uch complaints are personal in nature and therefore, the filing of the same, cannot be delegated by the alleged aggrieved party to any third person unless expressly authorized by law.

We must note, however, the following:

SECTION 1. How instituted. – Proceedings for disbarment, suspension or discipline of attorneys may be taken by the Supreme Court motu propio, or by the Integrated Bar of the Philippines (IBP) upon the verified complaint of any person.The complaint shall state clearly and concisely the facts complained of and shall be supported by affidavits or persons having personal knowledge of the facts therein alleged and/or by such documents a may substantiate said facts.

The IBP Board of Governors may, motu propio or upon referral by the Supreme Court or by a Chapter Board of Officers, orat the instance of any person, initiate and prosecute proper charges against any erring attorneys….22 (emphasis ours)

Complaints against members of the Bar are pursued to preserve the integrity of the legal profession, not for private vendetta. Thus, whoever has such personal knowledge of facts constituting a cause of action against erring lawyers may file a verified complaint with the Court or the IBP.23 Corollary to the public interest in these proceedings is the following rule:

SEC. 11. Defects. – No defect in a complaint, notice, answer, or in the proceeding or the Investigator’s Report shall be considered as substantial unless the Board of Governors, upon considering the whole record, finds that

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such defect has resulted or may result in a miscarriage of justice, in which event the Board shall take such remedial action as the circumstances may warrant, including invalidation of the entire proceedings.24 (emphasis ours)

Respondent failed to substantiate his allegation that Lim’s complaint was defective in form and substance, and that entertaining it would result in a miscarriage of justice. For the same reason, we will no longer put in issue the filing at the onset of a motion to dismiss by respondent instead of an answer or comment.25

The core issues before us now are:

1. whether there existed a conflict of interest in the cases represented and handled by respondent, and

2. whether respondent properly withdrew his services as counsel of record in Civil Case No. 97-9865.

Conflict Of Interest

Petitioners alleged that as an offshoot of representing conflicting interests, breach of attorney-client confidentiality and deliberate withholding of records were committed by respondent. To effectively unravel the alleged conflict of interest, we must look into the cases involved.

In Civil Case No. 97-9865, respondent represented Lumot A. Jalandoni and Totti Anlap Gargoles. This was a case for the recovery of possession of property involving Hotel Alhambra, a hotel owned by PRC.

In BC I.S. No. 99-2192, Lim v. Vicente Delfin, Spouses Dennis and Carmen Jalbuena, respondent was counsel for Delfin and the spouses Jalbuena. In this case, plaintiff Cristina Lim sued the spouses Jalbuena and Delfin on the basis of two checks issued by PRC for the construction of Hotel Alhambra.26 The corporate records allegedly reflected that the contractor, AAQ Sales and Construction (AAQSC), was already paid in full yet Amy Albert Que of AAQSC still filed a collection case against PRC for an unpaid balance.27 In her complaint-affidavit, Cristina averred:

11. That it was respondent Carmen J. Jalbuena, who took advantage of [her] signatures in blank in DBP Check Nos. 0865590 and 0865591, and who filled up the spaces of the payee, date and amount without the knowledge and consent of any officer of the corporation and [herself], after which she caused the delivery of the same checks to her husband Dennis Jalbuena, who encashed without [their]

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knowledge and consent, and received the proceeds of the same checks… (as evidenced by his signature in receipt of payment on the dorsal side of the said checks) with the indispensable participation and cooperation of respondent Vicente B. Delfin, the Asst. Vice President and Branch Head of UCPB….28

Notably, in his comment, respondent stated:

There was a possibility of conflict of interest because by this time, or one month before [he] filed [his] Motion to Withdraw, Mrs. Jalandoni /Penta Resorts Corporation, Mr. Lim, through his wife, Cristina J. Lim, by another counsel, Atty. Lorenzo S. Alminaza, filed a criminal complaint against the spouses Dennis and Carmen J. Jalbuena on March 26, 1999… under BC-I.S. Case No. 99-2192.29

Similarly, in BC I.S. Nos. 00-1370, 2000-2304, 2000-2343, 00-2125, 00-2230, 00-880, respondent positioned himself against PRC’s interests.

And, in Civil Case No. 99-10660, a collection case against PRC, Atty. Alminaza of PRC was alarmed by the appearance of respondent at the table in court for AAQSC’s counsel.30

Canon 15 of the Code of Professional Responsibility (CPR) highlights the need for candor, fairness and loyalty in all the dealings of lawyers with their clients. Rule 15.03 of the CPR aptly provides:

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

It is only upon strict compliance with the condition of full disclosure of facts that a lawyer may appear against his client; otherwise, his representation of conflicting interests is reprehensible.31 Conflict of interest may be determined in this manner:

There is representation of conflicting interests if the acceptance of the new retainer will require the attorney to do anything which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation, to use against his first client any knowledge acquired through their connection.32(emphasis ours)

The rule on conflict of interests covers not only cases in which confidential communications have been confided but alsothose in which no confidence has been bestowed or will be used.33

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Another test of the inconsistency of interests is whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double-dealing in the performance thereof, and also whether he will be called upon in his new relation to use against his first client any knowledge acquire in the previous employment. The first part of the rule refers to cases in which the opposing parties are present clients either in the same action or in a totally unrelated case; the second part pertains to those in which the adverse party against whom the attorney appears is his former client in a matter which is related, directly or indirectly,to the present controversy.34 (emphasis ours)

The rule prohibits a lawyer from representing new clients whose interests oppose those of a former client in any manner, whether or not they are parties in the same action or in totally unrelated cases. The cases here directly or indirectly involved the parties’ connection to PRC, even if neither PRC nor Lumot A. Jalandoni was specifically named as party-litigant in some of the cases mentioned.

An attorney owes to his client undivided allegiance. After being retained and receiving the confidences of the client, he cannot, without the free and intelligent consent of his client, act both for his client and for one whose interest is adverse to, or conflicting with that of his client in the same general matter…. The prohibition stands even if the adverse interest is very slight; neither is it material that the intention and motive of the attorney may have been honest.35(emphasis ours)

The representation by a lawyer of conflicting interests, in the absence of the written consent of all parties concerned after a full disclosure of the facts, constitutes professional misconduct which subjects the lawyer to disciplinary action.36

Even respondent’s alleged effort to settle the existing controversy among the family members37 was improper because the written consent of all concerned was still required.38 A lawyer who acts as such in settling a dispute cannot represent any of the parties to it.39

Withdrawal As Counsel In Civil Case No. 97-9865

The next bone of contention was the propriety of respondent’s withdrawal as counsel for Lumot A. Jalandoni in Civil Case No. 97-9865 to fulfill an alleged retainership agreement with the spouses Jalbuena in a suit by PRC, through Cristina Lim, against the Jalbuenas and Delfin (BC I.S. No. 99-2192). In his December 1, 2000 comment, respondent stated that it was he who was not

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notified of the hiring of Atty. Alminaza as the new counsel in that case and that he withdrew from the case with the knowledge of Lumot A. Jalandoni and with leave of court.

The rule on termination of attorney-client relations may be summarized as follows:

The relation of attorney and client may be terminated by the client, by the lawyer or by the court, or by reason of circumstances beyond the control of the client or the lawyer. The termination of the attorney-client relationship entails certain duties on the part of the client and his lawyer.40

Accordingly, it has been held that the right of an attorney to withdraw or terminate the relation other than for sufficient cause is considerably restricted. Canon 22 of the CPR reads:

Canon 22 – A lawyer shall withdraw his services only for good cause and upon notice appropriate in the circumstances.

An attorney may only retire from a case either by written consent of his client or by permission of the court after due notice and hearing, in which event the attorney should see to it that the name of the new lawyer is recorded in the case.41 A lawyer who desires to retire from an action without the written consent of his client must file a petition for withdrawal in court.42 He must serve a copy of his petition upon his client and the adverse party at least three days before the date set for hearing, otherwise the court may treat the application as a "mere scrap of paper."43 Respondent made no such move. He admitted that he withdrew as counsel on April 26, 1999, which withdrawal was supposedly approved by the court on April 28, 1999. The conformity of Mrs. Jalandoni was only presumed by Atty. Villarosa because of the appearance of Atty. Alminaza in court, supposedly in his place.

[A client] may discharge his attorney at any time with or without cause and thereafter employ another lawyer who may then enter his appearance. Thus, it has been held that a client is free to change his counsel in a pending case and thereafter retain another lawyer to represent him. That manner of changing a lawyer does not need the consent of the lawyer to be dismissed. Nor does it require approval of the court.44

The appearance of Atty. Alminaza in fact was not even to substitute for respondent but to act as additional counsel.45 Mrs. Jalandoni’s conformity to having an additional lawyer did not necessarily mean conformity to respondent’s desire to withdraw as counsel. Respondent’s speculations on the professional

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relationship of Atty. Alminaza and Mrs. Jalandoni find no support in the records of this case.

Respondent should not have presumed that his motion to withdraw as counsel46 would be granted by the court. Yet, he stopped appearing as Mrs. Jalandoni’s counsel beginning April 28, 1999, the first hearing date. No order from the court was shown to have actually granted his motion for withdrawal. Only an order dated June 4, 1999 had a semblance of granting his motion:

When this case was called for hearing Atty. Lorenzo Alminaza appeared for the defendants considering that Atty. Nicanor Villarosa has already withdrawn his appearance in this case which the Court considered it to be approved as it bears the conformity of the defendants.47 (emphasis ours)

That Mrs. Jalandoni continued with Atty. Alminaza’s professional engagement on her behalf despite respondent’s withdrawal did not absolve the latter of the consequences of his unprofessional conduct, specially in view of the conflicting interests already discussed. Respondent himself stated that his withdrawal from Civil Case No. 97-9865 was due to the "possibility of a conflict of interest."48

Be that as it may, the records do not support the claim that respondent improperly collected P5,000 from petitioner. Undoubtedly, respondent provided professional services to Lumot A. Jalandoni. Furthermore, there is no evidence that the documents belonging to Mrs. Jalandoni were deliberately withheld. The right of an attorney to retain possession of a client’s documents, money or other property which may have lawfully come into his possession in his professional capacity, until his lawful fees and disbursements have been fully paid, is well-established.49

Finally, we express our utter dismay with Lim’s apparent use of his wife’s community tax certificate number in his complaint for disbarment against respondent.50 This is not, however, the forum to discuss this lapse.

WHEREFORE, in view of the foregoing, respondent Atty. Nicanor V. Villarosa is hereby found GUILTY of violating Canon 15 and Canon 22 of the Code of Professional Responsibility and is SUSPENDED from the practice of law for one (1) year, effective upon receipt of this decision, with a STERN WARNING that a repetition of the same or similar acts will be dealt with more severely.

Let a copy of this resolution be entered into the records of respondent and furnished to the Office of the Clerk of Court, the Office of the Bar Confidant, the Integrated Bar of the Philippines, and all courts in the Philippines, for their information and guidance.

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SO ORDERED.

13. A. C. No. 7421               October 10, 2007

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

R E S O L U T I O N

CHICO-NAZARIO, J.:

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

Complainants contracted the legal services of respondent in Civil Case No. 981 entitled, "Sps. Daniel and Lolita Oviedo, et al. v. Eliza de Vera, et al.," for Declaration of Ownership with Damages filed before the Municipal Trial Court (MTC) of Calasiao, Pangasinan. Respondent represented the complainants, who were defendants in said case, until a Decision thereon was rendered by the MTC on 25 February 2004. The MTC ruled against the complainants. Respondent received a copy of the said Decision on 3 March 2004.

Complainants alleged that they directed the respondent to either file a Motion for Reconsideration or a Notice of Appeal, but respondent failed or refused to do so. The 15-day period within which to file an appeal or a motion for reconsideration of the MTC Decision expired on 18 March 2004. Complainant Elisa V. Venterez was constrained to contract another lawyer to prepare the Motion for Reconsideration which was filed on 19 March 2004. It must be stressed that the said motion was signed by complainant Elisa V. Venterez herself as the said lawyer did not enter his appearance.

On 23 March 2004, the said Motion for Reconsideration was denied1 by the MTC. Respondent was not furnished a copy of the denial of the motion per a Certification2 issued by Clerk of Court II Zenaida C. de Vera. On 31 March 2004, a Motion for Issuance of Writ of Execution3 was filed by the plaintiffs in Civil Case No. 981 but respondent never bothered to file an opposition to or any comment on the said motion despite receipt thereof. The motion was eventually granted4 by the MTC on 23 April 2004. On 28 April 2004, a Writ of Execution5 was issued and on 26 April 2004, an Entry of Judgment6 was made in the said case.

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

Feeling aggrieved by respondent’s actuations, complainants filed the instant administrative complaint against him.7

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

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was already prepared by another lawyer. He denied being furnished a copy of the Motion for Reconsideration allegedly prepared and filed by another lawyer engaged by complainant Elisa V. Venterez and that he was served with a copy of the denial of the said Motion by the MTC. Respondent also clarified that the "last day of the 15-day period for the perfection of the appeal is 19 March 2004 since a copy of the decision was served on the respondent on 4 March 2004." Finally, respondent argued that "when the respondent was served a copy of the Motion for Writ of Execution, he immediately notified Salvador Ramirez about said Motion but Salvador Ramirez came to see the respondent only on 3 May 2005, when the respondent asked him to sign a Notice of Retirement of Counsel signed by Salvador Ramirez which respondent immediately filed in court."

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

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

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

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

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 that Respondent is guilty of gross negligence, Atty. Rodrigo Cosme is hereby SUSPENDED from the practice of law for three (3) months.11

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

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

No lawyer is obliged to advocate for every person who may wish to become his client, but once he agrees to take up the cause of a client, the lawyer owes fidelity to such cause and must be mindful of the trust and confidence reposed in him.12Among the fundamental rules of ethics is the principle that an attorney who undertakes an action impliedly stipulates to carry it to its termination, that is, until the case becomes final and executory. A lawyer is not at liberty to abandon his client and withdraw his services without reasonable cause and only upon notice appropriate in the circumstances.13 Any dereliction of duty by a counsel affects the client.14 This means that his client is entitled to the benefit of any and every remedy and defense that is authorized by the law and he may expect his lawyer to assert every such remedy or defense.15

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

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the [complainants] two days after he received copy of the decision rendered in this case when SALVADOR RAMIREZ, a representative of the [complainants], withdrew all the records of the case from [respondent] to be given to his new counsel."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

g) Other similar cases.

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

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

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

All told, we rule and so hold that on account of respondent’s failure to protect the interest of complainants, respondent indeed violated Rule 18.03, Canon 18 of the Code of Professional Responsibility, which states that "a lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable." Respondent is reminded that the practice of law is a special privilege bestowed only upon those who are competent intellectually, academically and morally. This Court has been exacting in its expectations for the members of the Bar to always uphold the integrity and dignity of the legal profession and refrain from any act or omission which might lessen the trust and confidence of the public.1âwphi1

The determination of the appropriate penalty to be imposed on an errant lawyer involves the exercise of sound judicial discretion based on the facts of the case.27 In cases of similar nature, the penalty imposed by the Court consisted of reprimand,28 fine of five hundred pesos with warning,29 suspension of three months,30 six months31 and even disbarment32 in an aggravated case.

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

WHEREFORE, the resolution of the IBP Board of Governors approving and adopting the report and recommendation of the Investigating Commissioner is hereby AFFIRMED. Accordingly, ATTY. RODRIGO R. COSME is hereby SUSPENDED from the practice of law for a period of THREE (3) MONTHS, with a stern warning that a repetition of the same or similar wrongdoing will be dealt with more severely.

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

SO ORDERED.

MINITA V. CHICO-NAZARIOAssociate Justice

14. A.C. No. 3773 September 24, 1997

ANGELITA C. ORCINO, complainant, vs.ATTY. JOSUE GASPAR, respondent.

 

PUNO, J.:

On June 14, 1992, complainant Angelita C. Orcino filed with this Court a letter-complaint dated December 10, 1991 against respondent Atty. Josue Gaspar, her former counsel. Complainant prayed that this Court impose disciplinary sanctions on respondent for abandoning his duties and for failing to return the legal fees she fully paid for his services.

The complaint arose from the following facts: Complainant engaged the services of respondent to prosecute a criminal case she intended to file against several suspects in the slaying of her husband. In consideration thereof, complainant bound herself to pay respondent legal fees of P20,000.00 — P10,000.00 to be paid upon signing of the contract and the balance to be paid on or before the conclusion of the case. Complainant was also to pay P500.00 per appearance of respondent before the court and fiscal. This agreement was embodied in a contract executed on February 22, 1991. 1

In accordance with the contract, complainant paid respondent the sum of P5,000.00 on February 25, 1991, 2 another P5,000.00 on March 31, 1991, 3 and P10,000.00 on May 21, 1991, 4 for a total of P20,000.00.

Forthwith, respondent entered into his duties. He interviewed witnesses and gathered evidence to build a case against the suspects. He drew up the necessary sworn statements and dutifully attended the preliminary investigation. The case was thereafter filed with the Regional Trial Court, Branch 37, Baloc, Sto. Domingo, Nueva Ecija. 5

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As private prosecutor, respondent religiously attended the bail hearings for the accused although these hearings were postponed on motion of the accused's counsel. Respondent however failed to attend the hearing scheduled in August 1991. It was at this nearing that the court, over complainant's objections, granted bail to all the accused. After the hearing, complainant immediately went to respondent's residence and confronted him with his absence. 6 Respondent explained that he did not receive formal notice of the hearing. 7 Complainant became belligerent and started accusing him of jeopardizing the case by his absence. Respondent said that her suspicions were based on rumors and intrigues fed to her by her relatives. 8 Complainant, however, continued accusing him belligerently. She asked for the records of the case saying that she could refer them to another lawyer. Stung by her words, respondent gave her the records. 9

Complainant never returned the records nor did she see respondent. On September 18, 1991, respondent filed before the trial court a "Motion to Withdraw as Counsel." 10 The motion did not bear the consent of complainant.

On October 23, 1991, the court issued an order directing respondent to secure complainant's consent to the motion "and his appearance as private prosecutor shall continue until he has secured this consent." 11

Complainant refused to sign her conformity to respondent's withdrawal. 12 Meanwhile, the hearings in the criminal case continued. Respondent did not appear at the hearings nor did he contact complainant. Complainant was thus compelled to engage the services of another lawyer. Hence, the letter-complaint.

We referred the letter-complaint to the Integrated Bar of the Philippines, Commission on Bar Discipline, for investigation, report and recommendation.

The rule in this jurisdiction is that a client has the absolute right to terminate the attorney-client relation at any time with or without cause. 13 The right of an attorney to withdraw or terminate the relation other than for sufficient cause is, however, considerably restricted. 14 Among the fundamental rules of ethics is the principle that an attorney who undertakes to conduct an action impliedly stipulates to carry it to its conclusion. 15 He is not at liberty to abandon it without reasonable cause. 16 A lawyer's right to withdraw from a case before its final adjudication arises only from the client's written consent or from a good cause. 17

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

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

xxx xxx xxx

A lawyer may retire at any time from any action special proceeding with the written consent of his client filed in court and copy thereof served upon the adverse party. Should the client refuse to give his consent, the lawyer must file an application with the court. The court, on notice to the client and adverse party, shall determine whether he ought to be allowed to retire. The application for withdrawal must be based on a good cause. 18

In the instant case, complainant did not give her written consent to respondent's withdrawal. The court thus ordered respondent to secure this consent. Respondent allegedly informed the court that complainant had become hostile and refused to sign his motion. 19 He, however, did not file an application with the court for it to determine whether he should be allowed to withdraw.

Granting that respondent's motion without complainant's consent was an application for withdrawal with the court, we find that this reason is insufficient to justify his withdrawal from the case. Respondent's withdrawal was made on the ground that "there no longer exist[ed] the . . . confidence" between them and that there had been "serious differences between them relating to the manner of private prosecution." 20

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

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

Rule 22.01— A lawyer may withdraw his services in any of the following cases:

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

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

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

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

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

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

g) Other similar cases.

A lawyer may withdraw his services from his client only in the following instances: (a) when a client insists upon an unjust or immoral conduct of his case; (b) when the client insists that the lawyer pursue conduct violative of the Code of Professional Responsibility; (c) when the client has two or more retained lawyers and the lawyers could not get along to the detriment of the case; (d) when the mental or physical condition of the lawyer makes him incapable of handling the case effectively; (e) when the client deliberately fails to pay the attorney's fees agreed upon; (f) when the lawyer is elected or appointed to public office; (g) other similar cases.

The instant case does not fall under any of the grounds mentioned. Neither can this be considered analogous to the grounds enumerated. As found by the Commission on Bar Discipline, this case arose from a simple misunderstanding between complainant and respondent. Complainant was upset by respondent's absence at the hearing where bail was granted to the suspected killers of her husband. She vehemently opposed the grant of bail. It was thus a spontaneous and natural reaction for her to confront respondent with his absence. Her belligerence arose from her overzealousness, nothing more. Complainant's words and actions may have hurt respondent's feelings considering the work he had put into the case. But her words were uttered in a burst of passion. And even at that moment, complainant did not expressly terminate respondent's services. She made this clear when she refused to sign his "Motion to Withdraw as Counsel."

Assuming, nevertheless, that respondent was justified in terminating his services, he, however, cannot just do so and leave complainant in the cold unprotected. The lawyer has no right to presume that his petition for withdrawal will be granted

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by the court. 21 Until his withdrawal shall have been approved, the lawyer remains counsel of record who is expected by his client as well as by the court to do what the interests of his client require. 22 He must still appear on the date of hearing 23 for the attorney-client relation does not terminate formally until there is a withdrawal of record. 24

Respondent expressly bound himself under the contract to bring the criminal case to its termination. He was in fact paid in full for his services. Respondent failed to comply with his undertaking, hence, it is but fair that he return to complainant half of the amount paid him. The peculiar circumstances of the case have rendered it impossible for respondent and complainant to continue their relation under the contract.

IN VIEW WHEREOF, respondent is admonished to exercise more prudence and judiciousness in dealing with his clients. He is also ordered to return to complainant within fifteen (15) days from notice the amount of ten thousand pesos (P10,000.00) representing a portion of his legal fees received from the latter with a warning that failure on his part to do so will result in the imposition of stiffer disciplinary action.

SO ORDERED.

18.