Legal Ethics Canon 17 To 20

A.C. No. 3745

October 2, 1995

CYNTHIA B. ROSACIA, complainant, respondent.

vs. ATTY. BENJAMIN B. BULALACAO,

Complainant Cynthia B. Rosacia, president of Tacma, Phils., Inc., a duly registered corporation, filed a complaint for disbarment dated October 25, 1991, against herein respondent Atty. Benjamin B. Bulalacao. Acting on the complaint, the Court in a resolution dated February 24, 1992, resolved to refer the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. Commissioner Victor C. Fernandez, the IBP investigating commissioner, found that respondent breached his oath of office and accordingly recommended respondent's suspension from the practice of law for three (3) months. In a resolution dated July 30, 1994, the IBP Board of Governors resolved to adopt and approve the commissioner's report and recommendation. As found by the IBP, the undisputed facts are as follows:

On June 1, 1990, by virtue of a written Agreement (Exh. "3-a"), respondent Atty. Benjamin B. Bulalacao was hired as retained counsel of a corporation by the name of Tacma Phils., Inc. On October 31, 1990, the lawyer-client relationship between the respondent and Tacma Phils., Inc. was severed as shown by another agreement of even date (Exh. "3-b").

On July, 1991, or after almost nine (9) months from the date respondent's retainer agreement with Tacma, Phils., Inc. was terminated, several employees of the corporation consulted the respondent for the purpose of filing an action for illegal dismissal. Thereafter, he agreed to handle the case for the said employees as against Tacma, Phils., Inc. by filing a complaint before the National Labor Relations Commission, and appearing in their behalf.

The sole issue to be addressed is whether or not respondent breached his oath of office for representing the employees of his former client, Tacma, Phils., Inc., after the termination of their attorney-client relationship. We agree with the findings of the IBP that respondent breached his oath of office. Respondent does not now dispute this. In fact, in his motion for reconsideration, respondent admitted that he "did commit an act bordering on grave misconduct, if not outright violation of his attorney's oath". However, respondent is pleading for the Court's compassion and leniency to reduce the IBP recommended three months suspension to either fine or admonition with the following proffered grounds: that he is relatively new in the profession having been admitted to the Philippine Bar on April 10, 1990 at the age of 46 when the complained conduct was committed on August 1991; that he is of humble beginnings and his suspension will deprive his family of its only source of livelihood he being the sole bread winner in the family; that he has fully realized his mistake and the gravity of his offense for which he is fully repentant; that he has severed his attorney-client relationship with the employees of Tacma, Phils., Inc. by inhibiting himself and withdrawing his appearance as counsel in the labor case against Tacma, Phils., Inc.; and

that he pledges not to commit the same mistake and to henceforth strictly adhere to the professional standards set forth by the Code of Professional Responsibility.

The Court reiterates that an attorney owes loyalty to his client not only in the case in which he has represented him but also after the relation of attorney and client has terminated as it is not good practice to permit him afterwards to defend in another case other person against his former client under the pretext that the case is distinct from, and independent of the former case. It behooves respondent not only to keep inviolate the client's confidence, but also to avoid the appearance of treachery and double dealing for only then can litigants be encouraged to entrust their secrets to their attorneys which is of paramount importance in the administration of justice. The relation of attorney and client is one of confidence and trust in the highest degree. A lawyer owes fidelity to the cause of his client and he ought to be mindful of the trust and confidence reposed in him. An attorney not only becomes familiar with all the facts connected with his client's cause, but also learns from his client the weak and strong points of the case. No opportunity must be given attorneys to take advantage of the secrets of clients obtained while the confidential relation of attorney and client exists. Otherwise, the legal profession will suffer by the loss of the confidence of the people. Respondent's plea for leniency cannot be granted. We note that respondent is new in the profession as he was just admitted to the Philippine Bar on April 10, 1990, when the breach of his oath of office occurred more than a year after. Having just hurdled the bar examinations which included an examination in legal ethics, surely the precepts of the Code of Professional Responsibility to keep inviolate the client's trust and confidence even after the attorney-client relation is terminated must have been still fresh in his mind. A lawyer starting to establish his stature in the legal profession must start right and dutifully abide by the norms of conduct of the profession. This will ineluctably redound to his benefit and to the upliftment of the legal profession as well. ACCORDINGLY, respondent is hereby SUSPENDED from the practice of law for three months. Let this resolution be attached to respondent's record in the Office of the Bar Confidant and copies thereof furnished to all courts and to the Integrated Bar of the Philippines.

A.C. No. 2736

May 27, 1991

LORENZANA FOOD CORPORATION represented by Mr. SOLOMON U. LORENZANA, JR., as its President and General Manager, and/or Mrs. ELIZABETH L. DIAZ, as its Vice-President, petitioners, vs. ATTY. FRANCISCO L. DARIA, respondent. PER CURIAM:

RESOLUTION

The respondent lawyer, Atty. Francisco L. Daria, is administratively charged on two counts, to wit: 1. 2.

Negligence and

Betrayal of his former client's confidences.

A verified complaint dated February 22, 1985 was filed by Lorenzana Food Corporation LFC, hereinafter), and received by the Court on February 25, 1985.2 The Court, on June 10, 1985, resolved to refer this case to the Office of the Solicitor General for investigation, report, and recommendation.

After proper proceedings, the Office of the Solicitor General submitted its "Report and Recommendation," dated February 21, 1990 and received by the Court on February 26, 1990. From the findings made by the Solicitor General, the pertinent facts may be summarized as follows:

Respondent Francisco L. Daria is charged with negligence and betrayal of his former client's confidences. The following facts are in connection with the charge of negligence:

Respondent was hired by complainant Lorenzana Food Corporation (LFC) on January 8, 1981 as its legal counsel and was designated as its personnel manager six months later (tsn. pp. 6-7, Dec. 9, 1985). On May 23, 1983, LFC employee, Violeta Hanopol, filed a complaint for illegal dismissal and other monetary claims against complainant before the Ministry (now Department) of Labor and Employment (MOLE). On May 30, 1983, summons was served on the parties with the requirement that position papers be submitted (Exh. G).

During the initial hearing on June 13, 1973 * (sic) Hanopol and respondent tried to explore the possibility of an amicable settlement. Since no agreement was reached the hearing was reset to June 17, 1983. On the pretext that Hanopol was supposed to go to his office on that date respondent failed to appear for the second setting (tsn. pp. 14-15, Dec. 9, 1985). So, the Labor Arbiter was constrained to further reset the hearing to June 28, 1983. Respondent received on June 23, 1983 the Order for the resetting to June 1983 (Exh. J).

In the meantime, on June 20, 1983, respondent received an Order in another labor case, setting the hearing therein also on June 28, 1983 (Exh. H-6). Faced with a conflicting schedule, respondent decided to move to postpone the hearing in the Hanopol case. However, instead of filing a written motion for postponement, he opted to call, through his secretary, the Office of the Labor Arbiter to move for postponement (Exh. H-5; tsn. p. 16, Dec. 9, 1985). Respondent's telephone message apparently failed to reach the Labor Arbiter, because at the hearing on June 28, 1983, he considered the case submitted for decision on the basis of Hanopol's complaint and affidavit (Exh. G-1). Respondent had not submitted a position paper. After a month, on July 29, 1983, the Labor Arbiter issued a Decision directing LFC to pay Hanopol the total sum of P6,469.60 in labor benefits, on the basis of Hanopol's evidence alone.

Respondent Daria appealed the Decision to the National Labor Relations Commission (NLRC) on August 23, 1983 (Exh. 4). The case was remanded to the Labor Arbiter for further proceedings. The case was set for hearing on June 25, 1984 and July 12, 1984 wherein attempts for an amicable settlement still proved futile. The Labor Arbiter set two more dates for hearing: July 27, 1984 and August 8, 1984 (tsn. pp. 21-22, Dec. 9, 1985). In the meantime, the middle of June 1984, respondent signified to management his intention to resign. In the light of this development, management hired Atty. Rogelio Udarbe to take his place on July 16, 1984, the effective date of his resignation (Exh. 2). Respondent endorsed the cases of complainant to Atty. Udarbe (tsn. pp. 23-25, Dec. 9, 1985). During the hearings in the Hanopol case on July 27, 1984 and August 8, 1984, no one appeared for complainant. So, on August 15, 1984, Hanopol filed a "Manifestation and Motion" praying that the earlier Decision of the Labor Arbiter dated July 29, 1983 be revived. (Exh. 5).

On September 1, 1984, Atty. Jose Loy, Jr. was hired by complainant LFC vice Atty. Udarbe and he immediately came across the abovementioned "Manifestation and Motion". On September 5, 1984, he filed an Opposition (Exh. 6) thereto, and on September 19, 1984, he followed this up with a position paper for LFC (Exh. 7). However, the Labor Arbiter had already revived his earlier Decision dated July 29, 1983 in another Decision dated September 4, 1984, thereby prompting Atty. Loy to appeal the latter Decision (Exh. 3). In a resolution dated May 9, 1985, the NLRC ordered anew the remand of the case for further proceedings (Exh. 8).

In connection with the other charge of betrayal by respondent of his former client's confidences, the following facts appear on record:

While respondent was still connected with complainant, its general manager, Sebastian Cortes, issued a memorandum dated February 28, 1984 (Exh. C) to its employee, Roberto San Juan, requiring him to submit a written explanation for his alleged double liquidation and unliquidated cash advances. Another memorandum dated March 15, 1984 (Exh. D) was issued this time by complainant's internal auditor, Rosario L. Bernardo, addressed to complainant's president, summing up San Juan's unliquidated advances amounting to P9,351.15. Respondent was furnished a copy of this memorandum (Exh. D-3). The executive committee, to which respondent belongs, investigated San Juan on his unliquidated advances. On account of the gravity of the charge, respondent placed San Juan under preventive suspension, per his letter to him dated April 25, 1984 (Exh. E).

On September 20, 1984, when respondent had already resigned, complainant sent a demand letter to San Juan requiring him to restitute the amount of P9,351.15 (Exh. N-2). Since he failed to pay the amount demanded, a complaint for estafa was lodged against him before the Office of the Provincial Fiscal. San Juan thereafter resigned and sought the assistance of respondent in the preparation of his counteraffidavit in January 1985 (tsn. p. 35, Nov. 5, 1985). Respondent prepared San Juan's counteraffidavit and signed it (Exh. F). San Juan then submitted his counteraffidavit to the Office of the Provincial Fiscal (tsn. p. 42, Nov. 5, 1985).3 xxx

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For failure to appear in two consecutive hearings and to submit a position paper in the Hanopol case which resulted in complainant LFC's default and judgment against it by the Labor Arbiter, the respondent is faulted for negligence. The respondent avers that Hanopol should have seen him in his office to work out a compromise agreement, on the scheduled day of the second hearing, June 17, 1983, but did not.4 It is the finding of the Solicitor General that this excuse by the respondent is not borne by the Constancia setting the case for hearing. The Constancia clearly states: "By agreement of the parties, case reset to June 17, 1983 at 2:00 p.m. as previously scheduled." Since it was signed by both Hanopol and the respondent, the Solicitor General argues that the respondent's explanation is manifestly unsatisfactory.

With regard to his second non-appearance for the hearing on June 2, 1983, the respondent justified his absence by claiming that he had another hearing on the same date and that he told his secretary to call up the Office of the Labor Arbiter to have the hearing of the Hanopol case postponed. The Solicitor General avers:

. . . It is submitted that respondent's actuation was not warranted by the circumstances. As it turned out, the telephone request apparently did not reach the Labor Arbiter, thereby constraining him to declare complainant in default and render judgment against it. In an effort to extricate himself from this charge, the respondent submits that since he was able to persuade the National Labor Relations Commission (NLRC) on appeal to set aside the Decision of the Labor Arbiter and to remand the case for further proceedings, then the charge of negligence should be considered moot and academic already. We find this submission not meritorious. Instead, we agree ,with the position of the Solicitor General:

Respondent's plea is untenable. The setting aside of the adverse Decision of the Labor Arbiter cannot obliterate the effects of respondent's negligence. Indeed, had respondent attended the two scheduled hearings and filed the required position paper, then at least, there would have been no delay in the resolution of the case, which, perhaps, would have been in favor of complainant. The delay, by itself, was prejudicial to complainant because it deprived successor-counsel Atty. Loy of time which he should be devoting to other cases of complainant. In fact he had to prepare complainant's position paper which respondent should have done earlier (Exh. 7).10

From the foregoing, it is manifest that the respondent is indeed guilty of negligence, a clear violation of the Code of Professional Responsibility. CANON 18 — A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE

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

The other accusation against the respondent by the Solicitor General was that he had betrayed complainant LFC's confidences in violation of the then Canon 37 of the old Canons of Professional Ethics, to wit: It is the duty of a lawyer to preserve his client's confidences. This duty outlasts the lawyer's employment, and extends as well to his employee's and neither of them should accept employment which involves or may involve the disclosure or use of these confidences, either for the private advantages of the client, without his knowledge and consent, and even though there are other available sources of such information. A lawyer should not continue employment when he discovers that this obligation prevents the performance of his full duty to his former or to his new client. xxx

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Superseded by the Code of Professional Responsibility, the appropriate Canon now is:

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

The Solicitor General further found that the respondent assisted Roberto San Juan in the preparation of the counter-affidavit, submitted in defense of the latter in the accusation of estafa filed against San Juan by LFC As a matter of fact, the respondent signed the jurat of the San Juan counter-affidavit he (respondent) helped prepare. It is also a fact that the respondent investigated this same charge of estafa while he was still the lawyer of the complainant and San Juan still likewise an employee of LFC Again, we concur with the findings and evaluation of the Office of the Solicitor General:

. . . Respondent, however, tried to extricate himself from his predicament by testifying that the counteraffidavit was prepared by a lawyer-friend, Atty. Joselito R. Enriquez, who had his (respondent's) name typed on it; that after reading it, he called up Atty. Enriquez so that he will delete his name and signature thereon; that he instructed San Juan to bring the counteraffidavit to Atty. Enriquez so that he will delete his name and signature, but San Juan did not obey him; and that San Juan filed the counteraffidavit with the office of the Provincial Fiscal with his name and signature still on it (tsn. pp. 47-51, Dec. 9, 1985). It is submitted that, apart from being a mere afterthought, respondent's explanation is incredible. His foregoing testimony is not reflected in his comment on the complaint . . We are convinced that the respondent had betrayed the confidences of the complainant, his former client.

. . . An attorney owes loyalty to his client not only in the case in which he has represented him but also after the relation of attorney and client has terminated, and it is not a good practice to permit him afterwards to defend in another case other persons against his former client under the pretext that the case is distinct from and independent of the former case. WHEREFORE, premises considered, the respondent is found guilty of both the charge of negligence, a transgression of Rule 18.03, Canon 18, and the charge of betrayal of his former client's confidences, in violation of Canon 17 of the Code of Professional Responsibility.

The respondent is hereby SUSPENDED from the practice of law for a period of six (6) months.

Let this Decision be entered in the personal records of the respondent and copies thereof furnished to all courts and IBP chapters. SO ORDERED.

ADM. CASE No. 4809 SPOUSES WILLIAM ADECER and TERESITA P. ADECER, Complainants, - versusATTY. EMMANUEL AKUT, VELASCO, JR., JJ. Respondent. x-------------------------------------------------------------------------------------x DECISION

Before the Court is a petition for disbarment filed by Spouses William and Teresita Adecer (complainants) against Attorney Emmanuel A. Akut (respondent).

The instant petition is an offshoot of Criminal Case No. 72790 entitled People of the Philippines v. William Adecer and Teresita Adecer in which complainants were charged with committing a crime punishable under Article 318 of the Revised Penal Code (Other Deceits), before the Municipal Trial Court in Cities, Cagayan de Oro, Branch No. 5 (MTCC). Respondent was their legal counsel in the criminal case.

On 25 March 1997, respondent received a copy of the MTCCs Decision dated 12 March 1997 convicting complainants of Other Deceits and sentencing them to the penalty of arresto mayor and a fine of not less than P30,000.00. Complainants were also ordered to pay civil liability in the form of damages and attorneys fees totaling P66,000.00 to the private respondents in the criminal case. On 26 March 1997, the Decision was promulgated in the absence of the complainants, who were accorded due notice. Complainants received a copy of the Decision via registered mail on 4 April 1997. Respondent received an additional copy of the Decision on even date. Respondent had fifteen (15) days from 25 March 1997, or until 9 April 1997, to file either an appeal or a petition for probation in behalf of the complainants. However, it was only on 16 May 1997 over a month after the Decision had become final and executory that respondent filed a Petition for Probation. The MTCC issued a Writ of Execution On 19 May 1997. The next day, a warrant of arrest was served on complainants and they were incarcerated. On 28 May 1997, respondent filed a Memorandum in Support of the Petition for Probation stating, [i]mmediately upon her receipt of a copy of the decision, accused Teresita Adecer contacted [her] lawyer but [her] lawyer was out of town during that time and so, while waiting for her lawyer to come home, she raised the required amount necessary to pay the

civil indemnity awarded in the decision. Respondent explained that complainant Teresita Adecer raised the money in the belief that an application for probation would not be granted unless all monetary awards are paid in full. Respondent recounted that it was only on 16 May 1997, when complainant Teresita approached him and handed to him the money for the settlement of the civil liability, that he informed her that the application for probation should have been filed within the period for appeal.

The Petition for Probation was denied through a Resolution dated 7 June 1997. The MTCC held that the law does not permit the grant of probation after the lapse of the period for filing an appeal. With regard to respondent’s allegation that he was out of town during the period for filing an appeal, the MTCC examined the calendars of various courts and ascertained that respondent had scheduled and attended hearings before several courts in Cagayan de Oro during said period. This prompted the MTCC to comment, [t]he court does not know if defense counsel suffered a sudden lack of vitamins to make him forget his duties towards his clients. It appears that complainants filed a Motion for Reconsideration with an Atty. Rogelio Zosa Bagabuyo as pro bono counsel for the complainants. The motion was denied through a Resolution dated 30 June 1997.

The records also reflect that complainants filed a pleading entitled Urgent Omnibus Motions to Recall Writ of Execution and for a Second Motion for Reconsideration with Leave of Court dated 21 June 1997. In answer to insinuations in said pleading, respondent, as former counsel of the complainants, filed a Manifestation dated 30 June 1997. He claimed therein that the complainants only had themselves to blame for failing to file a timely petition for probation. Allegedly, the complainants failed to comply with an agreement with respondent that they would immediately go to respondent’s office to discuss the steps to be taken should they receive an adverse decision. Respondent claimed that during the time complainants desisted from approaching him, he could not make a choice in behalf of the complainants between the remedy of appeal and the benefits of probation. He recounted that complainants came to his office only on 9 May 1997, a month after the decision had become final and executory, with money to pay for the civil liability. He asked them to return the next day, but they returned only on 16 May 1997 after he sent somebody to fetch them on several occasion[s]. On 29 July 1997, while serving their sentence at the Lumbia Detention and Rehabilitation Center, complainants filed the instant administrative case praying that respondent be disbarred and ordered to reimburse complainants of expenses, with interest and damages.

In his Comment dated 22 February 1998, respondent reiterated his account in the Memorandum in Support of the Petition for Probation dated 28 May 1997 on why a timely petition for probation was not filed. However, his explanation evolved somewhat since the last time. This time, he stated that complainants deliberately failed to meet with him seasonably for the signing of the verification of the Petition for Probation. On the MTCCs finding that respondent appeared before Cagayan de Oro courts during the period to file an appeal, he retorted that he moved for the postponement of most of these hearings and attended only the more important ones. He explained that he was out of his office most of

the time because starting February 1997, he and his wife were always out of town looking for faith healers to cure the malignant brain tumor of his wife, who succumbed to the cancer on 1 August 1997. Allegedly, after attending the important hearings, he immediately went out of town seeking faith healers.

The instant case was referred by this Court to the Integrated Bar of the Philippines (IBP) for investigation, report, and recommendation. On 29 October 2003, Commissioner Wilfredo E.J.E. Reyes filed a Manifestation before this Court reporting that the records of the case were lost due to a carnapping incident. On 7 November 2003, the records of the case were reconstituted. Stipulations were made and the parties agreed that the case would be deemed submitted for decision upon their filing of their respective Supplemental Position Papers. Furthermore, despite complainants several allusions to deceit on the part of respondent, the parties agreed on a single issue for resolution, i.e., whether respondent is administratively liable for a violating the principles of legal ethics and the Code of Professional Responsibility in filing the Petition for Probation beyond the reglementary period. In his Report and Recommendation dated 15 July 2005, Commissioner Reyes found that respondent failed to exercise the proper diligence in dealing with the case of his clients and recommended that respondent be suspended from the practice of law for one (1) month and admonished henceforth to be more careful in the performance of his duties to his clients. The IBP Board of Governors resolved to adopt and approve the findings of Commissioner Reyes with the modification that respondent instead be suspended for six (6) months. The case is now on review by this Court pursuant to Section 12 (b), Rule 139-B of the Revised Rules of Court. We affirm the findings of the Investigating Commissioner and adopt the recommendation of the Board of Governors. The Code of Professional Responsibility mandates that a lawyer shall serve his client with competence and diligence. He shall not handle any legal matter without adequate preparation. Nor shall he neglect a legal matter entrusted to him; his negligence in connection therewith shall render him liable.

Respondent is bound by the representations he made in his Memorandum in Support of the Petition for Probation, i.e., that a timely petition for probation was not filed due to the fact that he was out of town and that complainants were laboring under the misapprehension that the civil liability must be paid in full before probation could be availed of. Either of his two explanations is enough ground to render him liable for negligence under the Code of Professional Conduct. First, despite his receipt of a copy of the Decision and the consequent running of the fifteen (15)-day period to file a petition for probation, respondent went out of town without contacting complainants to give them proper legal advice. Furthermore, his admission that complainants were [1] under the impression that they first had to pay off their civil liabilities prior to filing a petition for probation and [2] unaware that they had

only fifteen (15) days from their counsels receipt of a copy of the decision to file their petition, proves that he failed to give complainants timely legal advise. We consider first the implications of respondent’s allegation that he was out of town as his justification to the MTCC for failing to file a timely petition.

At the outset, it must be remembered that respondent was given a copy of the Decision while he was in town. Surely, he could have addressed his clients need during that time. At the very least, he should have made room in his schedule to confer with complainants on what course of action to take in furtherance of their cause and to prepare the necessary legal moves toward such end. Furthermore, respondent was not away for the entirety of the crucial period and could have attended to his clients’ needs during the instances he was in Cagayan de Oro. And even if respondent had left town during the entire fifteen (15)-day period, in this age of cellular phones, long distance telephone accessibility, and even overnight mail delivery, it is highly unlikely that respondent would not be able to attend to his clients’ needs were he so inclined. He could at least have found a way to speak to his clients to inform them regarding the short window within which to file their petition. He could even have prepared a petition and mailed the same to his clients in order that they could sign it and themselves file it in court; or as intimated by the MTCC, he could have filed a motion for extension of time to file a petition for probation. There are many ways to provide proper representation for his clients and many things which respondent could have done that would give this Court the impression that he had the least bit of concern for his clients cause. But nothing of the sort was presented by respondent. Since he is primarily responsible for filing the vital pleading that would have made possible for his clients to avail of probation, we find that respondent’s omission is a culpable act of negligence for which he must be held liable.

Furthermore, when the MTCC decided to take judicial notice of his scheduled hearings within Cagayan de Oro to expose his lie, respondent explained that he was in town to attend some of the more important hearings but was out of town most of the time. Aside from the fact that respondent had attempted to deceive the court by initially stating without qualification that he was out of town, he later on uttered words which reveal his notion that some of his cases were more important, and therefore, given more immediate attention than others. Every case a lawyer accepts deserves his full attention, skill and competence, regardless of his impression that one case or hearing is more important than the other. Respondent has attached a death certificate showing that his wife died from cardiac arrest close to the period in question. We commiserate with respondent for the loss of his wife, and appreciate fully that during the period of a man’s existence when the sense of mortality and loss is most closely felt more then ever, it would appear that no responsibility is more important than tending to loved ones. However, such is the lawyers charge that no personal consideration should stand in the way of performing a legal duty.In these situations, it is only fair that a lawyer should lighten his case load lest he prejudice his clients cases.

We have held that the failure of an attorney to file a timely motion for reconsideration or an appeal renders him liable for negligence under the Code of Professional Responsibility. In the instant case, the negligence exhibited by the respondent is made more grievous by the fact that the Decision to be acted upon is one that subjects his clients to incarceration. The liberty of ones clients is not to be taken lightly, whether the sentence is for destierro or reclusion perpetua. Litigants entrust their properties, liberties, and even lives, in the hands of their lawyers, who must protect these values with utmost zeal and vigilance.

What compounds respondents negligence is his indifference to complainant’s plight. He abruptly dismissed his failure to communicate with complainants by stating that, even if [complainants] house is near respondents office, yet respondent does not know [where] their house [is] as he ha[s] never gone to said house. It has never been the practice of respondent to visit his clients in their home. It must be the client who must go to him.

Respondent’s choice to be oblivious to his clients place of residence is his prerogative. This, however, neither excuses nor explains why he was unable to contact his clients by telephone or cellular phone to properly advise them of their legal options. Furthermore, in adopting this style of dealing with clients, respondent takes the obvious risk of being incapable of contacting his clients during crucial periods. He should, thus, be prepared to be held in the event that his manner of dealing with clients results in the latters being deprived of remedies to which they would otherwise be entitled, for it is the duty of an attorney to advise his client promptly whenever he has any information which is important that the client receive. To cover his own inattention, respondent even blamed his clients for their ignorance by stating that they were under the wrong impression that the civil liability should be paid in full before they could ask for probation. The laymens lack of knowledge of substantive and procedural law is the exact reason why they hire the services of counsel. It was counsel’s responsibility to look after the welfare of his clients by communicating with them to determine whether they would take the avenue of an appeal or a petition for probation and to thereafter prepare and file the relevant pleading.

We note the IBP Investigating Commissioners observation that complainants themselves did not show much interest in their own case. Indeed, complainants did not attend hearings of their case; the decision was promulgated in their absence; during trial, complainants were thrice ordered arrested for their failure to attend hearings; thrice, too, respondent had to file a motion for reconsideration of the orders of arrest. It is true that the client must, with regard to his case, exercise that standard of case which an ordinary prudent man bestows upon his important business. However, complainants lackadaisical attitude is relevant only with regard to the binding effect upon them of the lapse of the fifteen (15)day period and their loss of the fight to file the petition for probation. The instant administrative proceeding concerns respondent’s omission, not those of his clients.

The lawyer should serve his client in a conscientious, diligent and efficient manner and he should provide a quality of services at least equal to that which lawyers generally would expect of a competent lawyer in the like situation. By agreeing to be his clients counsel, he represents that he will exercise ordinary diligence or that reasonable degree of care and skill having reference to the character of the business he undertakes to do, to protect the clients interests and take all steps or do all acts necessary therefor, and his client may reasonably expect him to discharge his obligations diligently. Respondent has failed to measure up to his oath.

WHEREFORE, the petition is GRANTED. Atty. Emmanuel A. Akut is hereby SUSPENDED from the practice of law for six (6) months and ADMONISHED henceforth to be more circumspect in the performance of his duties to his clients, with the caveat that commission of the same or similar offense will be dealt with more severely. SO ORDERED. [ A.C. No. 801, June 27, 1978 ] CESARIO ADARNE, COMPLAINANT, VS. ATTY. DAMIAN V. ALDABA , RESPONDENT. DECISION

Administrative action against the respondent attorney for gross negligence and misconduct, for failure to give his entire devotion to the interest of his client, warm zeal in the maintenance and defense of his rights, and exertion of his utmost learning and ability in the prosecution and defense of his client, and for not taking steps to protect the interests of his client in the face of an adverse decision.

The record shows that sometime in 1958, Raymunda Cumpio and her husband, Rufo Cumpio, filed an action for forcible entry against herein complainant Cesario Adarne, Aning Arante, and Miguel Inokando with the Justice of the Peace of Alang-alang, Leyte. The case was docketed in the said court as Civil Case No. 96. Atty. Isauro Marmita represented the defendants who raised the issue of ownership of the land in question. After hearing the parties, the Justice of the Peace dismissed the complaint for lack of jurisdiction. Consequently, the plaintiffs therein appealed to the Court of First Instance of Leyte and the case was assigned to Branch VI at Carigara, where it was docketed as Civil Case No. 556. Resolving the issue interposed by the appellants, the Judge of the Court of First Instance found that the Justice of the Peace Court has jurisdiction over the case and returned the same to the lower court for trial on the merits. After trial on the merits, the Justice of the Peace again dismissed the case and the plaintiffs again appealed to the Court of First Instance of Leyte where the case was docketed anew as Civil Case No. 632. Attys. Arturo Mirales and Generoso Casimpan filed the answer for the defendants.3 At the hearing of the case on August 7, 1961, the herein complainant Cesario Adarne, one of the defendants in the aforementioned Civil Case No. 632, noting that his attorneys had not yet arrived, prevailed upon the respondent Atty. Damian Aldaba, who was then present in court to attend the trial of an electoral case, to appear as counsel for them and ask for the postponement of the trial. The respondent, who is a third-degree cousin of the complainant, agreed, and entered a special appearance. Upon noticing that the plaintiffs and their

counsel were not also present in court, the respondent, instead of asking for a postponement, moved for the dismissal of the case. His motion was granted and the case was again dismissed. Thereafter, the plaintiffs filed a motion for the reconsideration of the order, to which the respondent filed an opposition in behalf of the defendants, and the motion was denied. Whereupon, the plaintiffs appealed to the Court of Appeals. After appropriate proceedings, the appellate court set aside the order of dismissal and remanded the case to the lower court for further proceedings.

At the hearing of the case on October 23, 1964 before the Court of First Instance of Leyte, the respondent was again prevailed upon by the complainant to appear in his behalf. The respondent entered a "special appearance" for the complainant and thereafter argued that the interest of justice would best be served if the defendants were allowed to file an action for quieting of title and the case heard jointly with the pending action for forcible entry . Finding merit in the argument, the court ordered the defendant Cesario Adarne to file an action for quieting of title within one (1) week and the plaintiffs to answer the same within the reglementary period, after which both cases would be tried jointly. The hearing was deferred until after the filing of the action for quieting of title. On June 17, 1965, the court declared the defendants in default for their failure to appear at the hearing set for that day and directed the plaintiffs to present evidence to support their claim. On September 17, 1965, the court rendered a decision and a writ of execution was issued thereafter. Because of this, Cesario Adarne filed the present complaint against the respondent Atty. Damian V. Aldaba on August 3, 1967, praying:

"Dahil dito, isinusumbong ko po ang aking Abogado ng 'Mal Practice' pabaya at pahamak sa kliente at sinisingil ko po siya ng pinsala katumbas sa sinisingil sa kin ng akin kalaban. O kaya lakarin niya na mapigil ang decision ng Hukom sa C.F.I. at ulitin ang hearing sa Forcible Entry. Kung hindi niya magagawa ito, ipinauubaya kona po sa kataas taasan Hukoman ang paglapat ng parusa. Sapagkat kung hindi po susugpu-in ang masamang gawa naito ng mga ibang abogado na nabibili, - lala'la' ang sakit na ito sa profession ng mga abogado, at lilikha ng maraming api, at habang naghahari ang pang aapi, lalaganap ang kriminalidad ng walang tigil, at walang katahimikan ang ating Demukrasya, at kung magkakagayon ang mga mamamayan at - sapilitan sa kumunista sasamba."

The respondent denied that he ever had any agreement with the complainant with respect to the handling of the latter's case in the Court of First Instance of Leyte, Carigara Branch, except for the "special appearance" that he entered for the complainant on August 7, 1961 and October 23, 1964, in view of the non-availability of the complainant's lawyers on said dates.

The case was referred to the Solicitor General for investigation, report and recommendation, after which a complaint for the disbarment of the respondent attorney was filed.

The judgment by default rendered against the complainant cannot be attributed to the respondent attorney. The blame lies with the complainant for having engaged the services of several lawyers to handle his case without formally withdrawing the authority he had given to them to appear in his behalf as to place the responsibility upon the respondent. To add to the confusion, the complainant had also requested the clerk of court of the Court of First Instance of Leyte that he (complainant) be furnished with summons and subpoena accorded to him. He also filed a motion by himself, thus implying that he was handling his case personally.

It appears that there have been three changes made of the attorneys for the complainant in the forcible entry case. The complainant was originally represented by Atty. Isauro Marmita who, upon his appointment to the Department of Labor, engaged Atty. de Veyra to take his place. Then came Atty. Arturo Mirales and later, Atty. Generoso Casimpan. However, no formalities whatever were observed in those changes such that the respondent entered a "special appearance" for the complainant in order that he could ask for the dismissal of the case for the failure of the adverse party to prosecute. The rule followed on matters of substitution of attorneys as laid down by this Court is that no substitution of attorneys will be allowed unless there be filed: (1) a written application for such substitution; (2) the written consent of the client; (3) the written consent of the attorney substituted; and (4) in case such written consent can not be secured, there must be filed with the application proof of service of notice of such motion upon the attorney to be substituted, in the manner prescribed by the rules. Unless the foregoing formalities are complied with, substitution will not be permitted, and the attorney who properly appeared last in the cause, before such application for substitution, will be regarded as the attorney of record and will be held responsible for the proper conduct of the cause. Besides, the respondent honestly believed that he had appeared for the complainant only for a special purpose and that the complainant had agreed to contact his attorney of record to handle his case after the hearing of October 23, 1964, so that he did nothing more about it. It was neither gross negligence nor omission to have entertained such belief. An attorney is not bound to exercise extraordinary diligence, but only a reasonable degree of care and skill, having reference to the character of the business he undertakes to do. Prone to err like any other human being, he is not answerable for every error or mistake, and will be protected as long as he acts honestly and in good faith to the best of his skill and knowledge.

It is well settled that in disbarment proceedings, the burden of proof rests upon the complainant and for the Court to exercise its disciplinary powers, the case against the respondent attorney must be established by convincing proof. In the instant case, there is no sufficient proof to warrant the disbarment of the respondent attorney. Neither is there culpable malpractice to justify his suspension. WHEREFORE, the present administrative complaint is hereby DISMISSED.

SO ORDERED.

A.C. No. 5835

April 15, 2005

CARLOS B. REYES, Complainant, vs. ATTY. JEREMIAS R. VITAN, respondent. DECISION

A lawyer shall serve his client with competence and diligence and never neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable. Indeed, it is his sworn duty not to delay no man for money or malice; and to conduct himself in a proper manner not only to his client, but also to the court, the legal profession and society at large. This is an administrative complaint for disbarment filed by Carlos Reyes against Atty. Jeremias Vitan for gross negligence.

The complaint alleges that sometime in June 2001, complainant Carlos Reyes hired the services of respondent Atty. Jeremias Vitan for the purpose of filing the appropriate complaint or charge against his sister-in-law, Estelita Reyes, and the latter's niece, Julieta P. Alegonza; that both women refused to abide with the Decision of Judge Juan C. Nabong, Jr., of the Regional Trial Court, Branch 32, Manila, in Civil Case No. 99-92657 ordering the partition of the properties left by complainant's brother Damaso B. Reyes; and that respondent, after receiving the amount of P17,000.00, did not take any action on complainant's case.

We referred the complaint to the Integrated Bar of the Philippines for investigation, report and recommendation. IBP Commissioner Lydia A. Navarro issued several orders to respondent directing him to file his answer to the complaint, but he failed to do so. He only sent his secretary to represent him during the proceedings.

On April 18, 2001, IBP Commissioner Navarro submitted to the IBP Board of Governors her Report and Recommendation quoted as follows:

"x x x. After going over the evidence on record, the undersigned noted that respondent ignored all the Orders issued by this Commission and neither did he comply with any of those Orders. Respondent even failed to submit the responsive pleadings he himself requested in his motion and only sent his assistant secretary to represent him in the scheduled hearings of this case. Up to and until the present, no pleadings was submitted despite respondent's allegations that he was collating evidence to prove his side of the case. It was complainant who submitted the supposed letters of the respondent Estelita Reyes and Juliet Alegonza but there were no proofs when they sent and when the same were received by the addressee.

Likewise, the complaint submitted by the complainant was only a format in the sense that it was not signed by the respondent; the RTC Branch No. was left blank; there was no Civil Case No. and there was no proof that said pleading was filed which amounts only to a mere scrap of paper and not a pleading or authenticated document in the legal parlance. As it is, nothing had been done by the respondent for the complainant as his client for the legal fees he collected which was paid by the complainant as reflected in the receipts issued by the respondent in handwritten forms and signed by him.

Respondent not only violated Rule 18.03 and 18.04 of Cannon 18 of the Code of Professional Responsibility for having neglected a legal matter entrusted to him and did not inform complainant the status of his case but also disregarded the orders of the Commission without reasons which amounted to utter disrespect of authority and unethical conduct in the practice of his profession, thus, should be sanctioned.

Wherefore, in view of the foregoing, the undersigned respectfully recommends that the respondent be suspended from the practice of his profession for a period of two (2) years from receipt hereof; and refund to the complainant the amount of P17,000.00 paid to him for not having extended his legal services to the complainant on a lawyer-client relationship within six (6) months from receipt hereof." On August 3, 2002, the IBP Board of Governors passed Resolution No. XV-2002-406 adopting and approving the above Report and Recommendation of IBP Commissioner Navarro.

When respondent accepted the amount of P17,000.00 from complainant, it was understood that he agreed to take up the latter's case and that an attorney-client relationship between them was established. From then on, it was expected of him to serve his client, herein complainant, with competence and attend to his cause with fidelity, care and devotion.

The act of receiving money as acceptance fee for legal services in handling complainant's case and subsequently failing to render such services is a clear violation of Canon 18 of the Code of Professional Responsibility which provides that a lawyer shall serve his client with competence and diligence. More specifically, Rule 18.03 states: "Rule 18.03. A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable."

A member of the legal profession owes his client entire devotion to his genuine interest, warm zeal in the maintenance and defense of his rights. An attorney is expected to exert his best efforts and ability to preserve his client's cause, for the unwavering loyalty displayed to his client likewise serves the ends of justice. Verily, the entrusted privilege to practice law carries with it the corresponding duties, not only to the client, but also to the court, to the bar and to the public. In Santos vs. Lazaro, we held that Rule 18.03 of the Code of Professional Responsibility, above-quoted, is a basic postulate in legal ethics. Indeed, when a lawyer takes a client's cause, he covenants that he will exercise due diligence in protecting his rights. The failure to exercise that degree of vigilance and attention expected of a good father of a family makes such lawyer unworthy of the trust reposed in him by his client and makes him answerable not just to his client but also to the legal profession, the courts and society. Significantly, respondent also violated his oath as a lawyer, which declares in part, that he will not delay any man for money or malice and will conduct himself as a lawyer according to the best of his knowledge and discretion, with all good fidelity as well to the courts as to his client.

However, the recommended penalty by the IBP is too harsh. Jurisprudence shows that lighter sanctions have been imposed for violations of this nature, taking into consideration the gravity of the offense and the necessity of preserving the integrity of the legal profession. The facts of Sencio vs. Calvadores bear a striking similarity to the present case. Respondent lawyer in Sencio did not return the money to complainant despite demand following his failure to file the case. During the proceedings before the IBP, respondent did not file his answer to the complaint nor appeared during the hearing notwithstanding his receipt of notices. We found him guilty of violation of the lawyer's oath, malpractice and gross misconduct and suspended him for six (6) months, and ordered to return to his client the amount of P12,000.00 with interest at 12% per annum from the date of the promulgation of our Resolution until the return of the amount.

In Garcia vs. Manuel,8 we suspended respondent lawyer from the practice of law for six (6) months and ordered him to render an accounting of all monies he received from the complainant. We found him guilty of gross misconduct.

WHEREFORE, respondent Atty. Jeremias R. Vitan is hereby declared guilty of violation of Canon 18 of the Code of Professional Responsibility and is SUSPENDED from the practice of law for a period of six (6) months effective upon notice of this Decision. He is ordered to return to complainant within five (5) days from notice the sum of P17,000.00 with interest of 12% per annum from the date of the promulgation of this Decision until the full amount shall have been returned. Let a copy of this Decision be furnished the Court Administrator for distribution to all courts of the land, the IBP, the Office of the Bar Confidant, and entered into respondent's personal records as an attorney and as a member of the Philippine Bar. SO ORDERED.

A.C. No. 4103

September 7, 1995

VERONICA S. SANTIAGO, BENJAMIN Q. HONTIVEROS, MR. SOCORRO F. MANAS, and TRINIDAD NORDISTA, complainants, vs. ATTY. AMADO R. FOJAS, respondent.

In their letter of 8 September 1993, the complainants, former clients of the respondent, pray that the latter be disbarred for "malpractice, neglect and other offenses which may be discovered during the actual investigation of this complaint." They attached thereto an Affidavit of Merit wherein they specifically allege:

1. That we are Defendants-Appellates [sic] in the Court of Appeals Case No. CA-G.N. CV No. 38153 of which to our surprise lost unnecessarily the aforesaid Petition [sic]. A close perusal of the case reveals the serious misconduct of our attorney on record, Atty. Amado Fojas tantamount to malpractice and negligence in the performance of his duty obligation to us, to defend us in the aforesaid case. That the said attorney without informing us the reason why and riding high on the trust and confidence we repose on him either abandoned, failed to act accordingly, or seriously neglected to answer the civil complaint against us in the sala of Judge Teresita Capulong Case No. 3526-V-91 Val. Metro Manila so that we were deduced [sic] in default.

2. That under false pretenses Atty. Fojas assured us that everything was in order. That he had already answered the complaint so that in spite of the incessant demand for him to give us a copy he continued to deny same to us. Only to disclose later that he never answered it after all because according to him he was a very busy man. Please refer to Court of Appeals decision dated August 17, 1993.

3. That because of Atty. Amado Foja's neglect and malpractice of law we lost the Judge Capulong case and our appeal to the Court of Appeals. So that it is only proper that Atty. Fojas be disciplined and disbarred in the practice of his profession.

In his Comment, the respondent admits his "mistake" in failing to file the complainants' answer in Civil Case No. 3526-V-91, but he alleges that it was cured by his filing of a motion for reconsideration, which was unfortunately denied by the court. He asserts that Civil Case No. 3526-V-91 was a "losing cause" for the complainants because it was based on the expulsion of the plaintiff therein from the Far Eastern University Faculty Association (FEUFA) which was declared unlawful in the final decision in NCR-OD-M-90-10-050. Thus, "[t]he unfavorable judgment in the Regional Trial Court is not imputable to [his] mistake but rather imputable to the merits of the case, i.e., the decision in the Expulsion case wherein defendants (complainants herein) illegally removed from the union (FEUFA) membership Mr. Paulino Salvador. . . ." He further claims that the complainants filed this case to harass him because he refused to share his attorney's fees in the main labor case he had handled for them. The respondent then prays for the dismissal of this complaint for utter lack of merit, since his failure to file the answer was cured and, even granting for the sake of argument that such failure amounted to negligence, it cannot warrant his disbarment or suspension from the practice of the law profession. The complainants filed a Reply to the respondent's Comment.

Issues having been joined, we required the parties to inform us whether they were willing to submit this case for decision on the basis of the pleadings they have filed. In their separate compliance, both manifested in the affirmative. The facts in this case are not disputed.

Complainants Veronica Santiago, Benjamin Hontiveros, Ma. Socorro Manas, and Trinidad Nordista were the President, Vice-President, Treasurer, and Auditor, respectively, of the FEUFA. They allegedly expelled from the union Paulino Salvador. The latter then commenced with the Department of Labor and Employment (DOLE) a complaint (NCR-ODM-90-10-050) to declare illegal his expulsion from the union. In his resolution of 22 November 1990, Med-Arbiter Tomas Falconitin declared illegal Salvador's expulsion and directed the union and all its officers to reinstate Salvador's name in the roll of union members with all the rights and privileges appurtenant thereto. This resolution was affirmed in toto by the Secretary of Labor and Employment.

Subsequently, Paulino Salvador filed with the Regional Trial Court (RTC) of Valenzuela, Metro Manila, Branch 172, a complaint against the complainants herein for actual, moral, and exemplary damages and attorney's fees, under Articles 19, 20, and 21 of the Civil Code. The case was docketed as Civil Case No. 3526-V-91.

As the complainants' counsel, the respondent filed a motion to dismiss the said case on grounds of (1) res judicata by virtue of the final decision of the Med-Arbiter in NCR-OD-M90-10-050 and (2) lack of jurisdiction, since what was involved was an intra-union issue cognizable by the DOLE. Later, he filed a supplemental motion to dismiss. The trial court, per Judge Teresita Dizon-Capulong, granted the motion and ordered the dismissal of the case. Upon Salvador's motion for reconsideration, however, it reconsidered the order of dismissal, reinstated the case, and required the complainants herein to file their answer within a nonextendible period of fifteen days from notice. Instead of filing an answer, the respondent filed a motion for reconsideration and dismissal of the case. This motion having been denied, the respondent filed with this Court a petition for certiorari, which was later referred to the Court of Appeals and docketed therein as CAG.R. SP No. 25834.

Although that petition and his subsequent motion for reconsideration were both denied, the respondent still did not file the complainants' answer in Civil Case No. 3526-V-91. Hence, upon plaintiff Salvador's motion, the complainants were declared in default, and Salvador was authorized to present his evidence ex-parte. The respondent then filed a motion to set aside the order of default and to stop the ex-parte reception of evidence before the Clerk of Court, but to no avail.

Thereafter, the trial court rendered a decision ordering the complainants herein to pay, jointly and severally, plaintiff Salvador the amounts of P200,000.00 as moral damages; P50,000.00 as exemplary damages or corrective damages; and P65,000.00 as attorney's fees; plus cost of suit. The complainants, still assisted by the respondent, elevated the case to the Court of Appeals, which, however, affirmed in toto the decision of the trial court.

The respondent asserts that he was about to appeal the said decision to this Court, but his services as counsel for the complainants and for the union were illegally and unilaterally terminated by complainant Veronica Santiago.

The core issue that presents itself is whether the respondent committed culpable negligence, as would warrant disciplinary action, in failing to file for the complainants an answer in Civil Case No. 3526-V-91 for which reason the latter were declared in default and judgment was rendered against them on the basis of the plaintiff's evidence, which was received ex-parte.

It is axiomatic that no lawyer is obliged to act either as adviser or advocate for every person who may wish to become his client. He has the right to decline employment, subject, however, to Canon 14 of the Code of Professional Responsibility. Once he agrees to take up the cause of a client, the lawyer owes fidelity to such cause and must always be mindful of

the trust and confidence reposed in him. He must serve the client with competence and diligence, and champion the latter's cause with wholehearted fidelity, care, and devotion. Elsewise stated, he owes entire devotion to the interest of the client, warm zeal in the maintenance and defense of his client's rights, and the exertion of his utmost learning and ability to the end that nothing be taken or withheld from his client, save by the rules of law, legally applied. This simply means that his client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land and he may expect his lawyer to assert every such remedy or defense. If much is demanded from an attorney, it is because the entrusted privilege to practice law carries with it the correlative duties not only to the client but also to the court, to the bar, and to the public. A lawyer who performs his duty with diligence and candor not only protects the interest of his client; he also serves the ends of justice, does honor to the bar, and helps maintain the respect of the community to the legal profession. The respondent admits that it was his duty to file an answer in Civil Case No. 3526-V-91. He justifies his failure to do so in this wise:

[I]n his overzealousness to question the Denial Order of the trial court, [he] instead, thru honest mistake and excusable neglect, filed a PETITION FOR CERTIORARI with the Honorable Court, docketed as G.R. No. 100983. . . . And, when the Court of Appeals, to which G.R. No. 100983 was referred, dismissed the petition, he again "inadvertently" failed to file an answer "[d]ue to honest mistake and because of his overzealousness as stated earlier. . . . "

In their Reply, the complainants allege that his failure to file an answer was not an honest mistake but was "deliberate, malicious and calculated to place them on the legal disadvantage, to their damage and prejudice" for, as admitted by him in his motion to set aside the order of default, his failure to do so was "due to volume and pressure of legal work." In short, the complainants want to impress upon this Court that the respondent has given inconsistent reasons to justify his failure to file an answer. We agree with the complainants. In his motion for reconsideration of the default order, the respondent explained his non-filing of the required answer by impliedly invoking forgetfulness occasioned by a large volume and pressure of legal work, while in his Comment in this case he attributes it to honest mistake and excusable neglect due to his overzealousness to question the denial order of the trial court. Certainly, "overzealousness" on the one hand and "volume and pressure of legal work" on the other are two distinct and separate causes or grounds. The first presupposes the respondent's full and continuing awareness of his duty to file an answer which, nevertheless, he subordinated to his conviction that the trial court had committed a reversible error or grave abuse of discretion in issuing an order reconsidering its previous order of dismissal of Salvador's complaint and in denying the motion to reconsider the said

order. The second ground is purely based on forgetfulness because of his other commitments.

Whether it be the first or the second ground, the fact remains that the respondent did not comply with his duty to file an answer in Civil Case No. 3526-V-91. His lack of diligence was compounded by his erroneous belief that the trial court committed such error or grave abuse of discretion and by his continued refusal to file an answer even after he received the Court of Appeals' decision in the certiorari case. There is no showing whatsoever that he further assailed the said decision before this Court in a petition for review under Rule 45 of the Rules of Court to prove his claim of overzealousness to challenge the trial court's order. Neither was it shown that he alleged in his motion to lift the order of default that the complainants had a meritorious defense. And, in his appeal from the judgment by default, he did not even raise as one of the errors of the trial court either the impropriety of the order of default or the court's grave abuse of discretion in denying his motion to lift that order. Pressure and large volume of legal work provide no excuse for the respondent's inability to exercise due diligence in the performance of his duty to file an answer. Every case a lawyer accepts deserves his full attention, diligence, skill, and competence, regardless of its importance and whether he accepts it for a fee or for free.

All told, the respondent committed a breach of Canon 18 of the Code of Professional Responsibility which requires him to serve his clients, the complainants herein, with diligence and, more specifically, Rule 18.03 thereof which provides: "A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable."

The respondent's negligence is not excused by his claim that Civil Case No. 3526-V-91 was in fact a "losing cause" for the complainants since the claims therein for damages were based on the final decision of the Med-Arbiter declaring the complainants' act of expelling Salvador from the union to be illegal. This claim is a mere afterthought which hardly persuades us. If indeed the respondent was so convinced of the futility of any defense therein, he should have seasonably informed the complainants thereof. Rule 15.05, Canon 15 of the Code of Professional Responsibility expressly provides: A lawyer, when advising his client, shall give a candid and honest opinion on the merits and probable results of the client's case, neither overstating nor understanding the prospects of the case.

Then too, if he were unconvinced of any defense, we are unable to understand why he took all the trouble of filing a motion to dismiss on the grounds of res judicata and lack of jurisdiction and of questioning the adverse ruling thereon initially with this Court and then with the Court of Appeals, unless, of course, he meant all of these to simply delay the disposition of the civil case. Finally, the complainants were not entirely without any valid or

justifiable defense. They could prove that the plaintiff was not entitled to all the damages sought by him or that if he were so, they could ask for a reduction of the amounts thereof.

We do not therefore hesitate to rule that the respondent is not free from any blame for the sad fate of the complainants. He is liable for inexcusable negligence.

WHEREFORE, ATTY. AMADO R. FOJAS is hereby REPRIMANDED and ADMONISHED to be, henceforth, more careful in the performance of his duty to his clients. SO ORDERED.

A.C. No. 9896

March 19, 2014

MA. ELENA CARLOS NEBREJA, Petitioner, Respondent.

vs. ATTY. BENJAMIN REONAL,

RESOLUTION

For resolution is the administrative complaint for disbarment filed by Ma. Elena Carlos Nebreja (complainant) against Atty. Benjamin Reonal (respondent) for his failure to file the contracted petition for annulment of marriage in her behalf; for his misrepresentation on its status; and for his use of a fictitious office address. On June 26, 2006, complainant filed a verified Complaint-Affidavit before the Commission on Bar Discipline (CBP) of the Integrated Bar of the Philippines against respondent. Complainant alleged in her complaint-affidavit and position paper that sometime in March 2004, she engaged respondent's services to file her petition for annulment. She paid in cash and in checks, the various fees he asked from her on several occasions which totalled ₱55,000.00.

After paying respondent, however, complainant did not receive any word from him with regard to the status of her petition for annulment other than his claim that they needed to wait for her appointment with the psychologist evaluation.

On April 4, 2005, respondent told complainant that her petition for annulment was dismissed for lack of evidence. He then again asked for sums of money, on separate occasions, totalling ₱25,900.00, to pay for the psychological test, the sheriff’s fee, the refiling fee, and the publication.

Complainant again, despite respondent’s receipt of sums of money, failed to receive any update from respondent. When complainant asked for the schedule of her psychological test, respondent merely told her that the psychologist was unavailable. When she tried to ask for the number of her case and to obtain copies of the records, respondent just told her that the records were kept in a cabinet, the key to which was in the possession of his law partner who was out of town at that time. On March 14, 2006, complainant met with respondent to secure copies of her annulment case file. Respondent, however, merely handed to her photocopies of her marriage contract and her children’s birth certificates. When she asked for copies of her case files, he just told her that his law office could not let her use the pleadings of the case . She then asked for his office address to appeal to his law partners, but respondent refused to give it. Complainant checked her records and found respondent’s demand letter bearing the address of his claimed law office, "18/f Century Towers Building, Legaspi St. corner de la Rosa, Makati." When complainant tried to look for the said office, she discovered that there was no such building. She also found respondent’s calling card bearing the address, "86 Magat Salamat Street, Project 4, Quezon City," which, complainant found out, was respondent’s residential address.

When complainant tried again to obtain copies of her annulment case from respondent, he did not give any and told her that her annulment case would just be re-filed. When she asked him to write a letter to explain to the University of Perpetual Help-Rizal the discrepancy between the surnames appearing in her children’s NSO-issued birth certificates and the school records, respondent did not mention any pending annulment case in the letter, which he filed in complainant’s behalf. These circumstances made complainant suspect that he did not file any petition for annulment at all. In his answer and position paper, respondent denied having been engaged by complainant to handle her petition for annulment and having been paid therefor. In particular, respondent averred that complainant did not engage him to be her lawyer because she was unemployed and could not afford his legal services; that he was the retained counsel of one Desiree Dee, complainant’s associate, in the prosecution of labor, civil and criminal cases, but not for her annulment; that in the preparation of the affidavit for the University of Perpetual Help, he did not mention her intention to pursue an annulment proceeding against her husband upon her request; and that no psychological test was conducted

because she refused to allocate time to accommodate the schedule of the clinical psychologist.

There are two principal issues to be resolved in this case. First, whether indeed respondent failed to file the requisite petition for annulment for complainant and misrepresented its status; and second, whether or not he used a fictitious office address.

With regard to the first issue, the CBD found that respondent was liable for inexcusable negligence for failing to file her petition for annulment. There was no dispute that the parties met to discuss about the filing of complainant’s intended petition for annulment of marriage. They, however, disagreed on the engagement of his services to file the petition. On the matter, CBD found as sufficient the documentary evidence of payment submitted by complainant to prove the engagement of his legal services. During the clarificatory hearing, complainant answered the questions on the purposes for which the payments were given in a categorical, straightforward, spontaneous, and frank manner, which demeanor was a badge of credibility.

The CBD did not give credence to respondent’s denials, which prevailed over the positive and categorical statement of the complainant. It cited the well-settled rule that positive statement was stronger and attained greater evidentiary weight than negative evidence. Moreover, he did not submit any evidence to support or corroborate his denials and allegations or to refute complainant’s evidence. In sum, his claims were merely supported by his allegations, which, by law, were not equivalent to proof. With regard to the second issue, the CBD found that indeed, respondent used a fictitious office address to deceive complainant. He did not submit any proof that such building existed or that he held office at said address. He also did not deny either the due execution and authenticity of the letter with his printed office address. By failing to controvert the evidence of the other party, the truth of the said evidence was deemed to be admitted by the litigant. Such act, as held by the CBD, was a violation of respondent’s lawyer’s oath to do no falsehood and which consequently rendered him administratively liable. On September 25, 2008, the CBD found respondent guilty of both charges and recommended his suspension from the practice of law and ordered him to return the amounts taken from the complainant. The dispositive portion of its report reads: WHEREFORE, it is therefore respectfully recommended that respondent be: (a) suspended from the practice of law for a period of one (1) year; and (b) ordered to return to complainant, within five (5) days from notice, the sum of ₱80,900.00 with 12% interest per annum from the date when this recommendation is affirmed by the Supreme Court until the full amount shall have been returned.

On December 11, 2008, a resolution was passed by the Board of Governors of the IBP, which adopted and approved the recommendation of the CBD. The IBP Resolution is hereby quoted as follows: RESOLUTION NO. XVIII-2008-652 CBD Case No. 06-1767

Ma. Elena Carlos Nebreja vs. Atty. Benjamin Reonal

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering Respondent’s violation of Rule 18.03, Canon 18 of the Code of Professional Responsibility for his inexcusable negligence by failure to file the annulment petition and for misrepresentation, Atty. Benjamin Reonal is hereby SUSPENDED from the practice of law for one (1) year and Ordered to return the amount of Eighty Thousand Nine Hundred Pesos (₱80,900.00)* to complainant within five (5) days from notice with 12% interest per annum from the date this recommendation is affirmed by the Supreme Court. Complainant and respondent filed their motions for reconsideration on April 25, 2009 and April 27, 2009 respectively, but both were denied in a resolution, dated January 3, 2013.

After a thorough review of the records, the Court agrees with the resolution of the IBP except with respect to the order to return the amount of ₱80,900.00. Despite the engagement of his services, respondent did not file the contracted petition. His conduct, as held in Vda. De Enriquez v. San Jose, amounted to inexcusable negligence. This was found to be contrary to the mandate prescribed in Rule 18.03, Canon 18 of the Code of Professional Responsibility, which enjoined a lawyer not to neglect a legal matter entrusted to him. Rule 18.03, Canon 18 of the Code of Professional Responsibility provides for the rule on negligence and states: Rule 18.03 - A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable.

This Court has consistently held, in construing this Rule, that the mere failure of the lawyer to perform the obligations due to the client is considered per se a violation. Thus, a lawyer was held to be negligent when he failed to do anything to protect his client's interest after receiving his acceptance fee. In another case, this Court has penalized a lawyer for failing to inform the client of the status of the case, among other matters. In another instance, for

failure to take the appropriate actions in connection with his client's case, the lawyer was suspended from the practice of law for a period of six months and was required to render accounting of all the sums he received from his client.

With regard to respondent’s misrepresentation of his office address, the case of Porac Trucking, Inc. v. Court of Appeals, sets an example. In the said case, the Court imposed a sixmonth suspension on the lawyer after it was established that the said lawyer indeed claimed to be a lawyer of Porac Trucking, Inc. when, in truth and in fact, he was not. Still, in another case, the same six (6) month suspension was imposed on the erring lawyer after it was established that he claimed before the trial court to be a member of Citizens Legal Assistance Office when in truth, he was not. In this case, respondent clearly received his acceptance fee, among others, and then completely neglected his client’s cause. Moreover, he failed to inform complainant of the true status of the petition. His act of receiving money as acceptance fee for legal services in handling the complainant's case and, subsequently, failing to render the services, was a clear violation of Canon 18 of the Code of Professional Responsibility.

For all of respondent's acts - failure to file the contracted petition for annulment of marriage in behalf of the complainant, his misrepresentation on its status and his use of a fictitious office address, he deserves the penalty imposed upon him by the IBP.

The Court, however, deletes the aforementioned order stated in the resolution of the IBP, to wit, "To return the amount of Eighty Thousand Nine Hundred Pesos (₱80,900.00) to complainant within five (5) days from notice with 12% interest per annum from the date this recommendation is affirmed by the Supreme Court." The Court has recently adopted the policy to let the complainant claim and collect the amount due from the respondent in an independent action, civil or criminal. Nevertheless, the Court looks with disfavor at the non-payment by a lawyer of his due obligations.

WHEREFORE, the December 11, 2008 Resolution of the IBP adopting and approving the September 25, 2008 Recommendation of the Commission on Bar Discipline of the IBP that Atty. Benjamin Reonal be suspended from the practice of law for one (1) year is hereby APPROVED. The order to return the amounts received from complainant is hereby DELETED. This decision is immediately executory and is without prejudice to the filing of any civil or criminal action against respondent. Let a copy of this resolution be furnished the Bar Confidant to be included in the records of the respondent; the Integrated Bar of the Philippines for distribution to all its chapters; and the Office of the Court Administrator for dissemination to all courts throughout the country.

SO ORDERED.

SECOND DIVISION

[Adm. Case No. 4380. October 13, 1995.]

NICANOR GONZALES and SALUD B. PANTANOSAS, Complainants, v. ATTY. MIGUEL SABACAJAN, Respondent. SYLLABUS

LEGAL ETHICS; LAWYERS; CODE OF PROFESSIONAL RESPONSIBILITY; VIOLATED FOR FAILURE TO EXERCISE GOOD FAITH AND DILIGENCE REQUIRED IN HANDLING THE

LEGAL AFFAIRS OF THEIR CLIENTS. — As a lawyer, respondent should know that there are lawful remedies provided by law to protect the interests of his client. The Court finds that respondent has not exercised the good faith and diligence required of lawyers in handling the legal affairs of their clients. If complainants did have the alleged monetary obligations to his client, that does not warrant his summarily confiscating their certificates of title since there is no showing in the records that the same were given as collaterals to secure the payment of a debt. Neither is there any intimation that there is a court order authorizing him to take and retain custody of said certificates of title. Apparently, respondent has disregarded Canon 15, Rule 15.07 of the Code of Professional Responsibility which provides that a lawyer shall impress upon his client the need for compliance with the laws and principles of fairness. Rule 19.01 ordains that a lawyer shall employ only fair and honest means to attain the lawful objectives of his client and shall not present, participate in presenting, or threaten to present unfounded charges to obtain an improper advantage in any case or proceeding. Respondent has closely skirted this proscription, if he has not in fact transgressed the same. DECISION

This resolves the administrative case filed by Nicanor Gonzales and Salud B. Pantanosas against Atty. Miguel Sabacajan on February 14, 1995, the verified complaint wherefore alleges: x x x

4. That sometime in October, 1994, complainants were informed by the Register of Deeds of Cagayan de Oro City that the complainant’s owner’s duplicate of title covering their lands Transfer Certificate of Title Nos. T-91735 were entrusted to the office secretary of the respondent who in turn entrusted the same to respondent;

5. That respondent admitted and confirmed to the complainants that their titles are in his custody and has even shown the same (to) the complainant Salud B. Pantanosas but when demanded (sic) to deliver the said titles to the complainant in a formal demand letter, marked as ANNEX "A," respondent refused and continues to refuse without any justification to give their titles (and) when confronted, respondent challenged the complainants to file any case in any court even in the Honorable Supreme Court; 6. That respondent’s dare or challeng(e), is a manifestation of his arrogance taking undue advantage of his legal profession over the simplicity, innocence and ignorance of the complainants, one of whom is his blood relative, his aunt, for which complainants shudder with mental anguish; 7. That due to his challeng(e), the complainants sent a letter to the Honorable Supreme Court for enlightenment, copy of which is attached as ANNEX "B", for which the Honorable Supreme Court required 19 legible copies of a verified complaint;

8. That in spite of repeated demands, request(s) and pleas towards (sic) respondent, respondent still fail(ed) and stubbornly refused without justification to surrender the said titles to the rightful owners, the complainants here(in), which act is tantamount to willful and malicious defiance of legal and moral obligations emanating from his professional capacity as a lawyer who had sworn to uphold law and justice, to the prejudice and damage of the complainants; x

x

x

On March 22, 1995, the Court required respondent to comment on the foregoing complaint. In his unverified "Answer" thereto, respondent admitted having met Salud Pantanosas but claims that, to his recollection, "Nicanor Gonzales/Serdan" has never been to his office. Respondent likewise denied that he challenged anyone to file a case in any court, much less the Supreme Court. He also claims that he referred complainant Pantanosas to his client, Mr. Samto M. Uy of Iponan, Cagayan de Oro City, for whom he worked out the segregation of the titles, two of which are the subject of the instant case. Respondent likewise denies complainants’ allegation that he is arrogant, in contrast to the innocence, simplicity and ignorance of said complainants. He contends that the truth of the matter is that complainants have been charged with a number of criminal and civil complaints before different courts. He also asserts that he was holding the certificates of title in behalf of his client, Samto M. Uy. 4 Atty. Sabacajan stresses, by way of defense, that "the instant action was chosen precisely to browbeat him into delivering the Certificates of Title to them without said certificates passing the hands of Mr. Samto Uy with whom the complainants have some monetary obligations." In its resolution dated June 26. 1995, 6 for internal administrative purposes the Court referred this case to the office of the Bar Confidant for the corresponding evaluation, report and recommendation.

From the foregoing proceedings taken on this matter, the Court finds that respondent admitted having taken possession of the certificates of title of complainants but refused to surrender the same despite demands made by the latter. It follows, therefore, that it was incumbent upon him to show that he was legally justified in doing so. Instead, all he did was to inform this Court that "his obligation to deliver the certificates to Mr. Samto Uy excludes the delivery of said certificates to anyone else." Respondent attached some certifications to his "Answer" to support his contention that complainants are notorious characters. However, the certifications indicate that most of the cases stated therein, especially those involving fraud, have been dismissed. With respect to those still pending, there is no indication as to the identity of the party who instituted the same, aside from the consideration that the remedy thereon is judicial in nature. At any

rate, these aspersions on the character of complainants have no bearing on the misconduct of respondent charged in the present case.

Respondent likewise submitted xerox copies of certain certificates of title in an effort to explain why he kept the certificates of title of complainants, that is, supposedly for the purpose of subdividing the property. However, an examination of the same does not show any connection thereof to respondent’s claim. In fact, the two sets of certificates of title appear to be entirely different from each other.

As a lawyer, respondent should know that there are lawful remedies provided by law to protect the interests of his client. The records do not show that he or his client have availed of said remedies, instead of merely resorting to unexplained, if not curt, refusals to accommodate the requests of complainants. Also, he cannot be unaware of the imposable sanctions on a counsel who resorts to unlawful means that would cause injustice to the adversaries of his client. The Court accordingly finds that respondent has not exercised the good faith and diligence required of lawyers in handling the legal affairs of their clients. If complainants did have the alleged monetary obligations to his client, that does not warrant his summarily confiscating their certificates of title since there is no showing in the records that the same were given as collaterals to secure the payment of a debt. Neither is there any intimation that there is a court order authorizing him to take and retain custody of said certificates of title.

Apparently, respondent has disregarded Canon 15, Rule 15.07 of the Code of Professional Responsibility which provides that a lawyer shall impress upon his client the need for compliance with the laws and principles of fairness. Instead, he unjustly refused to give to complainants their certificates of titles supposedly to enforce payment of their alleged financial obligations to his client and presumably to impress the latter of his power to do so.

Canon 19, Rule 19.01 ordains that a lawyer shall employ only fair and honest means to attain the lawful objectives of his client and shall not present, participate in presenting, or threaten to present unfounded charges to obtain an improper advantage in any case or proceeding. Respondent has closely skirted this proscription, if he has not in fact transgressed the same. On the foregoing considerations, the Court desires and directs that respondent should forthwith return the certificates of title of complainants. To ensure the same, he should be placed under suspension until he presents to the Court proof of receipt by complainants of their respective copies of Certificates of Title Nos. T-91735 and T-91736 or a judicial order or document authorizing or justifying the retention of possession thereof by respondent or his aforenamed client.

WHEREFORE, Atty. Miguel Sabacajan is hereby SUSPENDED from the practice of law until he can duly show to this Court that the disputed certificates of title have been returned to and the receipt thereof duly acknowledged by complainants, or can present a judicial order

or appropriate legal authority justifying the possession by him or his client of said certificates. He is further WARNED that a repetition of the same or similar or any other administrative misconduct will be punished more severely. Let a copy of this resolution be spread on the personal records of respondent and have copies thereof furnished to the Integrated Bar of the Philippines and duly circularized to all courts in the country. SO ORDERED.

A.C. No. 7298 June 25, 2007 [Formerly CBD Case No. 05-1565]

FERNANDO MARTIN O. PENA, complainant, respondent. RESOLUTION

vs.ATTY. LOLITO G. APARICIO,

In this administrative complaint, a lawyer is charged with violation of Rule 19.01 of Canon 19 of the Code of Professional Responsibility for writing a demand letter the contents of which threatened complainant with the filing of criminal cases for tax evasion and falsification of documents.

Atty. Lolito G. Aparicio (respondent) appeared as legal counsel for Grace C. Hufana in an illegal dismissal case before the National Labor Relations Commission (NLRC). Sometime in August 2005, complainant Fernando Martin O. Pena, as President of MOF Company, Inc. (Subic), received a notice from the Conciliation and Mediation Center of the NLRC for a mediation/conciliation conference. In the conference, respondent, in behalf of his client, submitted a claim for separation pay arising from her alleged illegal dismissal. Complainant rejected the claim as being baseless. Complainant thereafter sent notices to Hufana for the latter to explain her absences and to return to work. In reply to this return to work notice, respondent wrote a letter to complainant reiterating his client's claim for separation pay. The letter also contained the following threat to the company: BUT if these are not paid on August 10, 2005, we will be constrained to file and claim bigger amounts including moral damages to the tune of millions under established precedence of cases and laws. In addition to other multiple charges like: 1. Tax evasion by the millions of pesos of income not reported to the government. 2. Criminal Charges for Tax Evasion

3. Criminal Charges for Falsification of Documents

4. Cancellation of business license to operate due to violations of laws.

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

Believing that the contents of the letter deviated from accepted ethical standards, complainant filed an administrative complaint with the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP). Respondent filed an Answer with Impleader (Motion to Dismiss and Counterclaims) claiming that Atty. Emmanuel A. Jocson, complainant's legal counsel, also played an important part in imputing the malicious, defamatory, and fabricated charges against him. Respondent also pointed out that the complaint had no certification against forum shopping and was motivated only to confuse the issues then pending before the Labor Arbiter. By way of counterclaim, respondent asked for damages and for the disbarment of Atty. Jocson. Respondent also asked the IBP to endorse the prosecution of Atty. Jocson for Usurpation of Public Functions and for violation of the Notarial Law. A mandatory conference was held on 6 December 2005 but respondent failed to appear. Both parties were thereafter required to submit their position papers.

The Report and Recommendation of Investigating Commissioner Milagros V. San Juan found that complainant, failed to file his position paper and to comply with Administrative Circular No. 04-94 requiring a certificate against forum shopping and, accordingly, recommended the dismissal of the complaint against respondent. On 26 May 2006, the IBP Board of Governors adopted and approved the Report and Recommendation of the Investigating Commissioner. On 10 July 2006, the IBP Commission on Bar Discipline transmitted to the Supreme Court the notice of said Resolution and the records of the case. Thereafter, on 18 August 2006, respondent filed with the IBP a Motion for Reconsideration (for Modification of Decision) reiterating his claim of damages against complainant in the amount of four hundred million pesos (P400,000,000.00), or its equivalent in dollars, for filing the "false, malicious, defamers [sic], fraudulent, illegal fabricators [sic], malevolent[,] oppressive, evasive filing [of] a groundless and false suit." Complainant thereafter filed this Petition for Review (of the Resolution of the IBP Commission on Bar Discipline) alleging that he personally submitted and filed with the IBP his position paper, after serving a copy thereof on respondent by registered mail. He further alleges that he was deprived of his right to due process when the IBP dismissed his complaint without considering his position paper and without ruling on the merits thereof. Complainant accordingly prays for the reversal and setting aside of the 26 May 2006 Resolution of the IBP Board of Governors and the remand of the case to the IBP Commission on Bar Discipline for proper adjudication and disposition on the merits.

Based on the records, there is truth to complainant's assertion that he filed his position paper on 21 December 2005, after serving a copy of the same to respondent. The IBP stamp on the front page of said document shows that it was received by the IBP on 21 December 2005. The registry receipt attached to the same document also shows that it was sent by registered mail to respondent on the same date. Complainant, however, omitted to offer any explanation in his petition before this Court for his failure to attach a certification against forum shopping in his complaint against respondent.

The requirement of a certification against forum shopping was originally required by Circular No. 28-91, dated 8 February 1994, issued by this Court for every petition filed with the Court or the Court of Appeals. Administrative Circular No. 04-94, made effective on 1 April 1994, expanded the certification requirement to include cases filed in courts and quasi-judicial agencies below this Court and the Court of Appeals. Ultimately, the Court adopted paragraphs (1) and (2) of Administrative Circular No. 04-94 to become Section 5, Rule 7 of the 1997 Rules of Civil Procedure. Said rule states that a violation thereof would constitute contempt of court and be cause for the summary dismissal of both petitions without prejudice to the taking of appropriate action against the counsel of the party concerned.

The Investigating Commissioner and the IBP Board of Governors took against complainant his failure to attach the certification against forum shopping to his complaint and consequently dismissed his complaint. This Court, however, disagrees and, accordingly, grants the petition. However, a remand of the case to the IBP would unduly prolong its adjudication. The Court's determination is anchored on the sui generis nature of disbarment proceedings, the reasons for the certification against forum shopping requirement, complainant's subsequent compliance with the requirement, and the merit of complainant's complaint against respondent.

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

In view of the nature of disbarment proceedings, the certification against forum shopping to be attached to the complaint, if one is required at all in such proceedings, must refer to another administrative case for disciplinary proceedings against the same respondent, because such other proceedings or "action" is one that necessarily involves "the same issues" as the one posed in the disbarment complaint to which the certification is supposedly to be attached.

Further, the rationale for the requirement of a certification against forum shopping is to apprise the Court of the pendency of another action or claim involving the same issues in another court, tribunal or quasi-judicial agency, and thereby precisely avoid the forum shopping situation. Filing multiple petitions or complaints constitutes abuse of court processes, which tends to degrade the administration of justice, wreaks havoc upon orderly judicial procedure, and adds to the congestion of the heavily burdened dockets of the courts. Furthermore, the rule proscribing forum shopping seeks to promote candor and transparency among lawyers and their clients in the pursuit of their cases before the courts to promote the orderly administration of justice, prevent undue inconvenience upon the

other party, and save the precious time of the courts. It also aims to prevent the embarrassing situation of two or more courts or agencies rendering conflicting resolutions or decisions upon the same issue.

It is in this light that we take a further look at the necessity of attaching a certification against forum shopping to a disbarment complaint. It would seem that the scenario sought to be avoided, i.e., the filing of multiple suits and the possibility of conflicting decisions, rarely happens in disbarment complaints considering that said proceedings are either "taken by the Supreme Court motu proprio, or by the Integrated Bar of the Philippines (IBP) upon the verified complaint of any person." Thus, if the complainant in a disbarment case fails to attach a certification against forum shopping, the pendency of another disciplinary action against the same respondent may still be ascertained with ease. We have previously held that the rule requiring a certification of forum shopping to accompany every initiatory pleading, "should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective or the goal of all rules of procedure— which is to achieve substantial justice as expeditiously as possible." At any rate, complainant's subsequent compliance with the requirement cured the supposed defect in the original complaint. The records show that complainant submitted the required certification against forum shopping on 6 December 2006 when he filed his Comment/Opposition to respondent's Motion to Dismiss the present petition.

Finally, the intrinsic merit of complainant's case against respondent justifies the grant of the present petition. Respondent does not deny authorship of the threatening letter to complainant, even spiritedly contesting the charge that the letter is unethical.

Canon 19 of the Code of Professional Responsibility states that "a lawyer shall represent his client with zeal within the bounds of the law," reminding legal practitioners that a lawyer's duty is not to his client but to the administration of justice; to that end, his client's success is wholly subordinate; and his conduct ought to and must always be scrupulously observant of law and ethics. In particular, Rule 19.01 commands that a "lawyer shall employ only fair and honest means to attain the lawful objectives of his client and shall not present, participate in presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any case or proceeding." Under this Rule, a lawyer should not file or threaten to file any unfounded or baseless criminal case or cases against the adversaries of his client designed to secure a leverage to compel the adversaries to yield or withdraw their own cases against the lawyer's client. In the case at bar, respondent did exactly what Canon 19 and its Rule proscribe. Through his letter, he threatened complainant that should the latter fail to pay the amounts they propose as settlement, he would file and claim bigger amounts including moral damages, as well as multiple charges such as tax evasion, falsification of documents, and cancellation of business license to operate due to violations of laws. The threats are not only unethical for violating Canon 19, but they also amount to blackmail.

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

In Sps. Boyboy v. Atty. Yabut, Jr.,27 we held that "[a]n accusation for blackmail and extortion is a very serious one which, if properly substantiated, would entail not only respondent's disbarment from the practice of law, but also a possible criminal prosecution." While the respondent in Boyboy was exonerated for lack of evidence, the same may not be said of respondent in the present case for he admits to writing the offensive letter. In fact, respondent does not find anything wrong with what he wrote, dismissing the same as merely an act of pointing out massive violations of the law by the other party, and, with boldness, asserting that "a lawyer is under obligation to tell the truth, to report to the government commission of offenses punishable by the State." He further asserts that the writing of demand letters is a standard practice and tradition and that our laws allow and encourage the settlement of disputes.

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

Indeed, the writing of demand letters is a standard practice and tradition in this jurisdiction. It is usually done by a lawyer pursuant to the principal-agent relationship that he has with his client, the principal. Thus, in the performance of his role as agent, the lawyer may be tasked to enforce his client's claim and to take all the steps necessary to collect it, such as writing a letter of demand requiring payment within a specified period. However, the letter in this case contains more than just a simple demand to pay. It even contains a threat to file retaliatory charges against complainant which have nothing to do with his client's claim for separation pay. The letter was obviously designed to secure leverage to compel complainant to yield to their claims. Indeed, letters of this nature are definitely proscribed by the Code of Professional Responsibility. Respondent cannot claim the sanctuary provided by the privileged communication rule under which a private communication executed in the performance of a legal duty is not actionable. The privileged nature of the letter was removed when respondent used it to blackmail complainant and extort from the latter compliance with the demands of his client.

However, while the writing of the letter went beyond ethical standards, we hold that disbarment is too severe a penalty to be imposed on respondent, considering that he wrote the same out of his overzealousness to protect his client's interests. Accordingly, the more appropriate penalty is reprimand. WHEREFORE, premises considered, the petition is granted. The 26 May 2006 Resolution of the IBP Board of Governors is hereby REVERSED and SET ASIDE. Respondent Atty. Lolito G. Aparicio is hereby found liable for violation of Rule 19.01 of Canon 19 of the Code of Professional Responsibility, and is accordingly meted out the penalty of REPRIMAND, with the STERN WARNING that a repetition of the same or similar act will be dealt with more severely. SO ORDERED.

G.R. No. L-29184 January 30, 1989

BENEDICTO LEVISTE, petitioner, vs. THE COURT OF APPEALS, HON. JUDGE LUIS B. REYES, COURT OF FIRST INSTANCE OF MANILA, ROSA DEL ROSARIO, RITA BANU,

CARMEN DE GUZMAN-MARQUEZ, JESUS R. DE GUZMAN, RAMON R. DE GUZMAN, JACINTO R. DE GUZMAN and ANTONIO R. DE GUZMAN, respondents.

The issue in this case is whether or not an attorney who was engaged on a contingent fee basis may, in order to collect his fees, prosecute an appeal despite his client's refusal to appeal the decision of the trial court.

On September 7, 1963, the petitioner, a practicing attorney, entered into a written agreement with the private respondent Rosa del Rosario to appear as her counsel in a petition for probate of the holographic will of the late Maxima C. Reselva. Under the will, a piece of real property at Sales Street, Quiapo, Manila, was bequeathed to Del Rosario. It was agreed that petitioner's contigent fee would be thirty-five per cent (35%) of the property that Rosa may receive upon the probate of the will (Annex "A", p. 59, Rollo). In accordance with their agreement, Leviste performed the following services as Del Rosario's counsel: (1) Thoroughly researched and studied the law on probate and succession; (2) Looked for and interviewed witnesses, and took their affidavits; (3) Filed the petition for. probate is Special Proceeding No. 58325; (4) Made the proper publications;

(5) Presented at the trial the following witnesses: a) Eleuterio de Jesus b) Lucita de Jesus

c) Purita L. Llanes d) Rita Banu

e) Jesus Lulod.

On August 20, 1965, Leviste received a letter from Ms. Del Rosario, informing him that she was terminating his services as her counsel due to "conflicting interest." This consisted, according to the letter, in petitioner's moral obligation to protect the interest of his brotherin-law, Gaudencio M. Llanes, whom Del Rosario and the other parties in the probate proceeding intended to eject as lessee of the property which was bequeathed to Del Rosario under the will (Annex "B", p. 60, Rollo).

On September 20, 1965, petitioner filed a "Motion to Intervene to Protect His Rights to Fees for Professional Services." (Annex "B", p. 60, Rollo.)

In an order dated November 12, 1965 the trial court denied his motion on the ground that he had "not filed a claim for attorney's fees nor recorded his attorney's lien." (p. 3, Rollo.) On November 23, 1965, petitioner filed a "Formal Statement of Claim for Attorney's Fees and Recording of Attorney's Lien,' which was noted in the court's order of December 20, 1965 (Annexes "D" and "E", pp. 63 & 64, Rollo).

Although the order denying his motion to intervene had become final, petitioner continued to receive copies of the court's orders, as well the pleadings of the other parties in the case. He also continued to file pleadings. The case was submitted for decision without the respondents' evidence.

On November 23, 1966, Del Rosario and Rita Banu, the special administratrix-legatee, filed a "Motion To Withdraw Petition for Probate" alleging that Del Rosario waived her rights to the devise in her favor and agreed that the De Guzman brothers and sisters who opposed her petition for probate, shall inherit all the properties left by the decedent. (Annex "F", p. 65, Rollo.) In an order of April 13, 1967 the trial court denied the motion to withdraw the petition for being contrary to public policy (Annex "G", pp. 66-67, Rollo).

Nonetheless, on August 28, 1967, the court disallowed the will, holding that the legal requirements for its validity were not satisfied as only two witnesses testified that the will and the testatrix's signature were in the handwriting of Maxima Reselva. The petitioner filed an appeal bond, notice of appeal, and record on appeal. The private respondents filed a motion to dismiss the appeal on the ground that petitioner was not a party in interest. The petitioner opposed the motion to dismiss his appeal, claiming that he has a direct and material interest in the decision sought to be reviewed. He also asked that he be substituted as party-petitioner, in lieu of his former client, Ms. Del Rosario. On March 28, 1968, the trial judge dismissed the appeal and denied petitioner's motion for substitution.

The petitioner filed in the Court of Appeals a petition for mandamus (CA-G.R. No. 41248) praying that the trial court be ordered to give due course to his appeal and to grant his motion for substitution.

On May 22, 1968, the Court of Appeals dismissed the petition for being insufficient in form and substance as the petitioner did not appear to be the proper party to appeal the decision in Special Proceeding No. 58325 (Annex 1, p. 77, Rollo). Upon the denial of his motion for reconsideration, petitioner appealed by certiorari to this Court, assigning the following errors against the Court of Appeals' resolution: 1. The Court of Appeals erred in finding that the petitioner appears not to be the proper party to appeal the decision in Sp. Proc. No. 58325 of the Court of First Instance of Manila. 2. Assuming the petitioner's right of appeal is doubtful, the Court of Appeals erred in dismissing his petition for mandamus; and

3. The Court of Appeals erred in not reversing the decision in Sp. Proc. No. 58325 denying the probate of the holographic will of the late Maxima C. Reselva, said decision being patently erroneous.

Under his first assignment of error, petitioner argues that by virtue of his contract of services with Del Rosario, he is a creditor of the latter, and that under Article 1052 of the Civil Code which provides: ART. 1052. If the heir repudiates the inheritance to the prejudice of his own creditors, the latter may petition the court to authorize them to accept it in the name of the heir.

The acceptance shall benefit the creditors only to an extent sufficient to cover the amount of their credits. The excess, should there be any, shall in no case pertain to the renouncer, but shall be adjudicated to the persons to whom, in accordance with the rules established in this Code, it may belong.

he has a right to accept for his client Del Rosario to the extent of 35% thereof the devise in her favor (which she in effect repudiated) to protect his contigent attorney's fees.

The argument is devoid of merit. Article 1052 of the Civil Code does not apply to this case. That legal provision protects the creditor of a repudiating heir. Petitioner is not a creditor of Rosa del Rosario. The payment of his fees is contingent and dependent upon the successful probate of the holographic will. Since the petition for probate was dismissed by the lower court, the contingency did not occur. Attorney Leviste is not entitled to his fee. Furthermore, Article 1052 presupposes that the obligor is an heir. Rosa del Rosario is not a legal heir of the late Maxima C. Reselva. Upon the dismissal of her petition for probate of the decedent's will, she lost her right to inherit any part of the latter's estate. There is nothing for the petitioner to accept in her name. This Court had ruled in the case of Recto vs. Harden, 100 Phil. 1427, that "the contract (for contingent attorney's fees) neither gives, nor purports to give, to the appellee (lawyer) any

right whatsoever, personal or real, in and to her (Mrs. Harden's) aforesaid share in the conjugal partnership. The amount thereof is simply a basis for the computation of said fees."

The Court of Appeals did not err in dismissing the petition for mandamus, for while it is true that, as contended by the petitioner, public policy favors the probate of a will, it does not necessarily follow that every will that is presented for probate, should be allowed. The law lays down procedures which should be observed and requisites that should be satisfied before a will may be probated. Those procedures and requirements were not followed in this case resulting in the disallowance of the will. There being no valid will, the motion to withdraw the probate petition was inconsequential. Petitioner was not a party to the probate proceeding in the lower court. He had no direct interest in the probate of the will. His only interest in the estate is an indirect interest as former counsel for a prospective heir. In Paras vs. Narciso, 35 Phil. 244, We had occassion to rule that one who is only indirectly interested in a will may not interfere in its probate. Thus: ... the reason for the rule excluding strangers from contesting the will, is not that thereby the court maybe prevented from learning facts which would justify or necessitate a denial of probate, but rather that the courts and the litigants should not be molested by the intervention in the proceedings of persons with no interest in the estate which would entitle them to be heard with relation thereto. (Paras vs. Narciso, 35 Phil. 244, 246.) Similary, in Morente vs. Firmalino, 40 O.G. 21st Supp. 1, We held:

We are of the opinion that the lower court did not err in holding that notice of an attorney's lien did not entitle the attorney-appellant to subrogate himself in lieu of his client. It only gives him the right to collect a certain amount for his services in case his client is awarded a certain sum by the court. WHEREFORE, the petition for certiorari is denied for lack of merit. Costs against the petitioner. SO ORDERED.

G.R. No. 91958

January 24, 1991

WILFREDO D. LICUDAN and CRISTINA LICUDAN-CAMPOS, petitioners, vs. THE HONORABLE COURT OF APPEALS and ATTY. TEODORO O. DOMALANTA, respondents.

The practice of law is a profession rather than trade. Courts must guard against the charging of unconscionable and excessive fees by lawyers for their services when engaged as counsel. Whether or not the award of attorney's fees in this case is reasonable, being in the nature of contingent fees, is the principal issue. This petition for review on certiorari assails:

1) The Decision of the public respondent dated September 12, 1989 which dismissed the petitioners' appeal thereby upholding the reasonableness of the respondent lawyer's lien as attorney's fees over the properties of his clients; and

2) The Resolution of the public respondent dated January 30, 1990 which denied the petitioners' motion for reconsideration. The grounds relied upon by the petitioners are as follows:

The respondent Court, in upholding the entitlement of private respondent-attorney on the attorney's fees he claimed, decided the question in a manner not in accord with law or with the applicable decisions of this Honorable Tribunal.

The respondent Court, in refusing to review and determine the propriety, reasonableness and validity of the attorney's fees claimed by the private respondent-attorney, departed from the usual course of judicial proceedings. The respondent Court, in failing to declare the attorney's fees claimed by the private respondent-attorney as unconscionable, excessive, unreasonable, immoral and unethical, decided the question in a way not in accord with law and with applicable decisions of this Honorable Tribunal. (Petition, pp. 12-13; Rollo, pp. 16-17) The following are the antecedent facts pertinent to the case at bar:

The respondent lawyer was retained as counsel by his brother-in-law and sister, the now deceased petitioners' parents, spouses Aurelio and Felicidad Licudan. His services as counsel pertained to two related civil cases docketed as Civil Case No. Q-12254 for partition and Civil Case No. Q-28655 for a sum of money in connection with the redemption of the property subject matter of the two cases covered by Transfer Certificate of Title No. 818 of

the Register of Deeds of Quezon City. In both cases, the respondent lawyer obtained a judgment in favor of his clients.

On August 13,1979, the respondent lawyer filed a Petition for Attorney's Lien with Notification to his Clients which substantially alleged that his clients executed two written contracts for professional services in his favor which provided that: a) The undersigned counsel is entitled to own 97.5 square meters of the plaintiff's share of the lot in question. b) The undersigned counsel shall have a usufructuary right for a period of ten (10) years of plaintiffs' share of the lot in question. c) And that all damages accruing to plaintiffs to be paid by the defendant is for the undersigned counsel.(Annex "H" of the Petition, Rollo, p. 54)

On September 19, 1979, the trial court handling Civil Case No. Q-12254 ordered the annotation at the back of TCT No. 818 of the Register of Deeds of Quezon City of the respondent lawyer's Contract for Professional Services dated August 30, 1979 signed by petitioner Wilfredo Licudan and Aurelio Licudan on his own behalf and on behalf of his daughter, petitioner Cristina Licudan-Campos. The said trial court's Order, being one of two Orders being essentially challenged in this petition, is reproduced below:

Before the court for consideration is a Petition for Attorney's Lien filed by Atty. Teodoro D. Domalanta, counsel for the plaintiff, praying that his attorney's fees be annotated as a lien at the back of Transfer Certificate of Title No. 818 of the Register of Deeds of Quezon City, subject matter of this case.

For the protection of the plaintiffs, the court required the plaintiff Aurelio Licudan as well as his son to appear this morning. Plaintiff Aurelio Licudan together with his son Wilfredo Licudan, who appears to be intelligent and in fact he speaks (the) English language well, appeared. Both Aurelio and Wilfredo Licudan manifested that they have freely and voluntarily signed the Contract for Professional Services, dated August 30, 1979 and notarized before Notary Public Amado Garrovillas as Doc. No. 32, Page 8, Book No. XIX, Series of 1979. Considering the manifestation of plaintiff, Aurelio Licudan and Alfredo (sic) Licudan that they have entered freely and voluntarily in the said contract of professional services, let the same be annotated at the back of TCT 818 of the Register of Deeds of Quezon City, upon payment of the required legal fees. (CA Decision, pp. 7-8; Rollo, pp. 36-37)

The Contract for Professional Services dated August 30, 1979 differs from the earlier contractual provisions in that it entitled the respondent lawyer to one-third (1/3) of the subject property or 90.5 square meters and provided for usufructuary rights over the entire

lot in question in favor of the respondent lawyer's son, Teodoro M. Domalanta, Jr. for an agreed consideration. (Annex "J" of the Petition; Rollo, p. 59)

On July 25, 1985, the respondent lawyer filed a motion ex parte to amend the Order dated September 19, 1979 so as to conform with an additional professional fee covering 31 square meters more of the lot for services rendered in Civil Case No. Q-28655 as evidenced by a Deed of Absolute Sale dated May 1, 1983 executed by Aurelio Licudan in favor of the respondent lawyer.

On September 6, 1985, the trial court ordered the respondent lawyer to submit a subdivision plan in conformity with his attorney's fees contract under which one-third (1/3) of the property or 90.5 square meters was alloted to him.

On September 23, 1985, the respondent lawyer filed a motion for reconsideration praying for the amendment of the Order dated September 19, 1979 to conform with the Deed of Absolute Sale dated May 1, 1983 which was executed after the annotation of the original attorney's lien of 90.5 square meters. On September 30, 1985, the trial court denied the motion on the ground that the respondent lawyer cannot collect attorney's fees for other cases in the action for partition.

On October 4, 1985, the respondent lawyer filed a second motion for reconsideration of the Order dated September 6, 1985 explaining that what he sought to be included in the Order dated September 19, 1979 is the additional attorney's fees for handling the redemption case which was but a mere offshoot of the partition case and further manifesting that the additional 31 square meters as compensation for the redemption case must be merged with the 90.5 square meters for the partition case to enable the said respondent lawyer to comply with the Order dated September 6,1985 which directed him to submit a subdivision plan as required. On October 21, 1985, the trial court issued the second Order being assailed in this petition. The said Order reads:

Acting on the "Second Motion for Reconsideration" filed by Atty. Teodoro Domalanta and finding the same to be justified, let an attorney's lien be annotated in the title of the property for 31 square meters as attorney's fees of said Atty. Teodoro Domalanta in addition to the original 90.5 square meters. (CA Decision, p. 8; Rollo, p. 37) On August 22, 1986, more than ten (10) months after the Orders of September 6, 1985 and October 21, 1985 had become final and executory, the petitioners as substituted heirs of the respondent lawyers' deceased clients filed a motion to set aside orders on the ground that the award of professional fees covering 121.5 square meters of the 271.5 square meter lot is unconscionable and excessive.

After the respondent lawyer filed his Opposition to the above petitioners' motion, the lower court, on August 29, 1986, finding that the petitioners as substituted plaintiffs are not in full agreement with the respondent lawyer's claim for attorney's fees, set aside its Orders dated September 6, 1985 and October 21, 1985. On September 16, 1986, the respondent lawyer filed a motion for reconsideration stressing the fact that the payment of the professional services was pursuant to a contract which could no longer be disturbed or set aside because it has already been implemented and had since then become final. This motion was denied on October 3, 1986.

On November 15, 1986, the respondent lawyer filed a motion to set aside the orders dated August 29, 1986 and October 3, 1986 reiterating his position that the Orders of September 6, 1985 and October 21, 1985 have become final and are already implemented. The respondent lawyer further asked for the modification of the October 21, 1985 Order to reflect 60.32 square meters instead of 31 square meters only since the stipulation in the Additional Contract for Professional Services entitled him to 60.32 square meters. After the petitioners' Opposition to the said motion was filed, the trial court, on February 26, 1987, rendered an Order with the following dispositive portion:

WHEREFORE, this Court has no alternative but to set aside its orders of 29 August 1986 and 3 October 1986 and declare its Orders of 19 September 1979 and 21 October 1985 irrevocably final and executory. (CA Decision, p. 5; Rollo, p. 34)

On Appeal, the Court of Appeals ruled in favor of the respondent lawyer by dismissing the appeal and the prayed for writ of preliminary injunction. Their subsequent motion for reconsideration having been denied', the petitioners filed the instant petition.

The petitioners fault the respondent Court for its failure to exercise its inherent power to review and determine the propriety of the stipulated attorney's fees in favor of the respondent lawyer and accuse the respondent lawyer of having committed an unfair advantage or legal fraud by virtue of the Contract for Professional Services devised by him after the trial court awarded him attorney's fees for P1,000.00 only instead of respecting the trust and confidence of the highest level reposed on him considering the close blood and affinal relationship between him and his clients. The petitioners contend that under the award for professional services, they may have won the case but would lose the entire property won in litigation to their uncle-lawyer. They would be totally deprived of their house and lot and the recovered damages considering that of the 271.5 square meters of the subject lot, the respondent lawyer is claiming 121.5 square meters and the remaining portion of 150 square meters would also go to attorney's fees since the said portion pertains to the lawyer's son by way of usufruct for ten (10) years. The aforesaid submissions by the petitioners merit our consideration.

It is a well-entrenched rule that attorney's fees may be claimed in the very action in which the services in question have been rendered or as an incident of the main action. The fees may be properly adjudged after such litigation is terminated and the subject of recovery is at the disposition of the court. (see Camacho v. Court of Appeals, 179 SCRA 604 [1989]; Quirante v. Intermediate Appellate Court, 169 SCRA 769 [1989]). It is an equally deeply-rooted rule that contingent fees are not per se prohibited by law. They are sanctioned by Canon 13 of the Canons of Professional Ethics and Canon 20, Rule 20.01 of the recently promulgated Code of Professional Responsibility. However, as we have held in the case of Tanhueco v. De Dumo (172 SCRA 760 [1989]):

. . . When it is shown that a contract for a contingent fee was obtained by undue influence exercised by the attorney upon his client or by any fraud or imposition, or that the compensation is clearly excessive, the Court must and will protect the aggrieved party. (Ulanday v. Manila Railroad Co., 45 Phil. 540 [1923]; Grey v. Insular Lumber Co., 97 Phil. 833 [1955]). In the case at bar, the respondent lawyer caused the annotation of his attorney's fees lien in the main action for partition docketed as Civil Case No. Q-12254 on the basis of a Contract for Professional Services dated August 30, 1979. We find reversible error in the Court of Appeals' holding that:

When the reasonableness of the appellee's lien as attorney's fees over the properties of his clients awarded to him by the trial court had not been questioned by the client, and the said orders had already become final and executory, the same could no longer be disturbed, not even by the court which rendered them (Tañada v. Court of Appeals, 139 SCRA 419). (CA Decision p. 7; Rollo, p. 36) On the contrary, we rule that the questioned Orders dated September 19, 1979 and October 21, 1985 cannot become final as they pertain to a contract for a contingent fee which is always subject to the supervision of the Court with regard to its reasonableness as unequivocally provided in Section 13 of the Canons of Professional Ethics which reads: 13.

Contingent Fees.—

A contract for a contingent fee, where sanctioned by law, should be reasonable under all the circumstances of the case including the risk and uncertainty of the compensation, but should always be subject to the supervision of a court, as to its reasonableness. (Emphasis supplied).

There is no dispute in the instant case that the attorney's fees claimed by the respondent lawyer are in the nature of a contingent fee. There is nothing irregular about the execution of a written contract for professional services even after the termination of a case as long as it is based on a previous agreement on contingent fees by the parties concerned and as long

as the said contract does not contain stipulations which are contrary to law, good morals, good customs, public policy or public order.

Although the Contract for Professional Services dated August 30, 1979 was apparently voluntarily signed by the late Aurelio Licudan for himself and on behalf of his daughter, petitioner Cristina Licudan-Campos and by the petitioner Wilfredo Licudan who both manifested in open court that they gave their free and willing consent to the said contract we cannot allow the said contract to stand as the law between the parties involved considering that the rule that in the presence of a contract for professional services duly executed by the parties thereto, the same becomes the law between the said parties is not absolute but admits an exception—that the stipulations therein are not contrary to law, good morals, good customs, public policy or public order (see Philippine American Life Insurance Company v. Pineda, 175 SCRA 416 [1989]; Syjuco v. Court of Appeals, 172 SCRA 111 [1989]). Under Canon 20 of the Code of Professional Responsibility, a lawyer shall charge only fair and reasonable fees.1âwphi1 In determining whether or not the lawyer fees are fair and reasonable, Rule 20-01 of the same Code enumerates the factors to be considered in resolving the said issue. They are as follows: a)

The time spent and the extent of the services rendered or required;

c)

The importance of the subject matter;

b) d)

The novelty and difficulty of the questions involved; The skill demanded;

e) The probability of losing other employment as a result of acceptance of the proferred case;

f) The customary charges for similar services and the schedule of fees of the IBP Chapter to which he belongs; g) The amount involved in the controversy and the benefits resulting to the client from the service; h)

The contingency or certainty of compensation;

j)

The professional standing of the lawyer.

i)

The character of the employment, whether occasional or established; and

A similar provision is contained under Section 24, Rule 138 of the Revised Rules of Court which partly states that:

Sec. 24. Compensation of attorneys; agreement as to fees. — An attorney shall be entitled to have and recover from his client no more than a reasonable compensation for his services, with a view to the importance of the subject matter of the controversy, the extent of the services rendered, and the professional standing of the attorney. . . . A written contract for services shall control the amount to be paid therefor unless found by the court to be unconscionable or unreasonable. All that the respondent lawyer handled for his deceased sister and brother-in-law was a simple case of partition which necessitated no special skill nor any unusual effort in its preparation. The subsequent case for redemption was admittedly but an offshot of the partition case. Considering the close blood and affinal relationship between the respondent lawyer and his clients, there is no doubt that Atty. Domalanta took advantage of the situation to promote his own personal interests instead of protecting the legal interests of his clients. A careful perusal of the provisions of the contract for professional services in question readily shows that what the petitioners won was a pyrrhic victory on account of the fact that despite the successful turnout of the partition case, they are now practically left with nothing of the whole subject lot won in the litigation. This is because aside from the 121.5 square meters awarded to Atty. Domalanta as attorney's fees, the said contract for professional services provides that the remaining portion shall pertain to the respondent lawyer's son by way of usufruct for ten (10) years. There should never be an instance where a lawyer gets as attorney's fees the entire property involved in the litigation. It is unconscionable for the victor in litigation to lose everything he won to the fees of his own lawyer. The respondent lawyer's argument that it is not he but his son Teodoro M. Domalanta, Jr. who is claiming the usufructuary right over the remaining portion of the subject lot is inaccurate. The records show that the matter of usufruct is tied up with this case since the basis for the said usufructuary right is the contract for professional services the reasonableness of which is being questioned in this petition. We find the ten-year usufruct over the subject lot part and parcel of the attorney's fees being claimed by the respondent lawyer. In resolving the issue of reasonableness of the attorney's fees, we uphold the timehonoured legal maxim that a lawyer shall at all times uphold the integrity and dignity of the legal profession so that his basic ideal becomes one of rendering service and securing justice, not money-making. For the worst scenario that can ever happen to a client is to lose the litigated property to his lawyer in whom an trust and confidence were bestowed at the very inception of the legal controversy. We find the Contract for Professional Services dated August 30, 1979, unconscionable and unreasonable. The amount of P20,000.00 as attorney's fees, in lieu of the 121.5 square meters awarded to the respondent lawyer and the ten-year usufructuary right over the remaining portion of 150 square meters by the respondent lawyer's son, is, in the opinion of this Court, commensurate to the services rendered by Atty. Domalanta.

WHEREFORE, IN VIEW OF THE FOREGOING, the instant petition is GRANTED. The Court of Appeals' decision of September 12, 1989 is hereby REVERSED and SET ASIDE. Atty. Domalanta is awarded reasonable attorney's fees in the amount of P20,000.00. SO ORDERED.

A.M. No. 1625

February 12, 1990

ANGEL L. BAUTISTA, complainant, vs. ATTY. RAMON A. GONZALES, respondent. RESOLUTION

In a verified complaint filed by Angel L. Bautista on May 19, 1976, respondent Ramon A. Gonzales was charged with malpractice, deceit, gross misconduct and violation of lawyer's oath. Required by this Court to answer the charges against him, respondent filed on June 19, 1976 a motion for a bill of particulars asking this Court to order complainant to amend his complaint by making his charges more definite. In a resolution dated June 28, 1976, the Court granted respondent's motion and required complainant to file an amended complaint. On July 15, 1976, complainant submitted an amended complaint for disbarment, alleging that respondent committed the following acts: 1. Accepting a case wherein he agreed with his clients, namely, Alfaro Fortunado, Nestor Fortunado and Editha Fortunado [hereinafter referred to as the Fortunados] to pay all expenses, including court fees, for a contingent fee of fifty percent (50%) of the value of the property in litigation.

2. Acting as counsel for the Fortunados in Civil Case No. Q-15143, wherein Eusebio Lopez, Jr. is one of the defendants and, without said case being terminated, acting as counsel for Eusebio Lopez, Jr. in Civil Case No. Q-15490; 3. Transferring to himself one-half of the properties of the Fortunados, which properties are the subject of the litigation in Civil Case No. Q-15143, while the case was still pending;

4. Inducing complainant, who was his former client, to enter into a contract with him on August 30, 1971 for the development into a residential subdivision of the land involved in Civil Case No. Q-15143, covered by TCT No. T-1929, claiming that he acquired fifty percent (50%) interest thereof as attorney's fees from the Fortunados, while knowing fully well that the said property was already sold at a public auction on June 30, 1971, by the Provincial Sheriff of Lanao del Norte and registered with the Register of Deeds of Iligan City;

5. Submitting to the Court of First Instance of Quezon City falsified documents purporting to be true copies of "Addendum to the Land Development Agreement dated August 30, 1971" and submitting the same document to the Fiscal's Office of Quezon City, in connection with the complaint for estafa filed by respondent against complainant designated as I.S. No. 7512936; 6.

Committing acts of treachery and disloyalty to complainant who was his client;

7. Harassing the complainant by filing several complaints without legal basis before the Court of First Instance and the Fiscal's Office of Quezon City;

8. Deliberately misleading the Court of First Instance and the Fiscal's Office by making false assertion of facts in his pleadings; 9. Filing petitions "cleverly prepared (so) that while he does not intentionally tell a he, he does not tell the truth either." Respondent filed an answer on September 29, 1976 and an amended answer on November 18, 1976, denying the accusations against him. Complainant filed a reply to respondent's answer on December 29, 1976 and on March 24, 1977 respondent filed a rejoinder. In a resolution dated March 16, 1983, the Court referred the case to the Office of the Solicitor General for investigation, report and recommendation. In the investigation conducted by the Solicitor General, complainant presented himself as a witness and submitted Exhibits "A" to "PP", while respondent appeared both as witness and counsel and submitted Exhibits "1" to "11". The parties were required to submit their respective memoranda. On May 16, 1988 respondent filed a motion to dismiss the complaint against him, claiming that the long delay in the resolution of the complaint against him constitutes a violation of his constitutional right to due process and speedy disposition of cases. Upon order of the Court, the Solicitor General filed a comment to the motion to dismiss on August 8, 1988, explaining that the delay in the investigation of the case was due to the numerous requests for postponement of scheduled hearings filed by both parties and the motions for extension of time to file their respective memoranda." [Comment of the Solicitor General, p. 2; Record, p. 365]. Respondent filed a reply to the Solicitor General's comment on October 26, 1988. In a resolution dated January 16, 1989 the Court required the Solicitor General to submit his report and recommendation within thirty (30) days from notice. On April 11, 1989, the Solicitor General submitted his report with the recommendation that Atty. Ramon A. Gonzales be suspended for six (6) months. The Solicitor General found that respondent committed the following acts of misconduct: a. transferring to himself one-half of the properties of his clients during the pendency of the case where the properties were involved;

b. concealing from complainant the fact that the property subject of their land development agreement had already been sold at a public auction prior to the execution of said agreement; and

c. misleading the court by submitting alleged true copies of a document where two signatories who had not signed the original (or even the xerox copy) were made to appear as having fixed their signatures [Report and Recommendation of the Solicitor General, pp. 17-18; Rollo, pp. 403-404]. Respondent then filed on April 14, 1989 a motion to refer the case to the Integrated Bar of the Philippines (IBP) for investigation and disposition pursuant to Rule 139-B of the Revised Rules of Court. Respondent manifested that he intends to submit more evidence before the IBP. Finally, on November 27, 1989, respondent filed a supplemental motion to refer this case to the IBP, containing additional arguments to bolster his contentions in his previous pleadings. I.

Preliminarily, the Court will dispose of the procedural issue raised by respondent. It is respondent's contention that the preliminary investigation conducted by the Solicitor General was limited to the determination of whether or not there is sufficient ground to proceed with the case and that under Rule 139 the Solicitor General still has to file an administrative complaint against him. Respondent claims that the case should be referred to the IBP since Section 20 of Rule 139-B provides that: This Rule shall take effect on June 1, 1988 and shall supersede the present Rule 139 entitled DISBARMENT OR SUSPENSION OF ATTORNEYS. All cases pending investigation by the Office of the Solicitor General shall be transferred to the Integrated Bar of the Philippines Board of Governors for investigation and disposition as provided in this Rule except those cases where the investigation has been substantially completed.

The above contention of respondent is untenable. In the first place, contrary to respondent's claim, reference to the IBP of complaints against lawyers is not mandatory upon the Court [Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707; Zaldivar v. Gonzales, G.R. No. 80578, October 7, 1988]. Reference of complaints to the IBP is not an exclusive procedure under the terms of Rule 139-B of the Revised Rules of Court [Ibid]. Under Sections 13 and 14 of Rule 139-B, the Supreme Court may conduct disciplinary proceedings without the intervention of the IBP by referring cases for investigation to the Solicitor General or to any officer of the Supreme Court or judge of a lower court. In such a case, the report and recommendation of the investigating official shall be reviewed directly by the Supreme Court. The Court shall base its final action on the case on the report and recommendation submitted by the investigating official and the evidence presented by the parties during the investigation.

Secondly, there is no need to refer the case to the IBP since at the time of the effectivity of Rule 139-B [June 1, 1988] the investigation conducted by the Office of the Solicitor General had been substantially completed. Section 20 of Rule 139-B provides that only pending cases, the investigation of which has not been substantially completed by the Office of the Solicitor General, shall be transferred to the IBP. In this case the investigation by the Solicitor General was terminated even before the effectivity of Rule 139-B. Respondent himself admitted in his motion to dismiss that the Solicitor General terminated the investigation on November 26, 1986, the date when respondent submitted his reply memorandum [Motion to Dismiss, p. 1; Record, p. 353].

Thirdly, there is no need for further investigation since the Office of the Solicitor General already made a thorough and comprehensive investigation of the case. To refer the case to the IBP, as prayed for by the respondent, will result not only in duplication of the proceedings conducted by the Solicitor General but also to further delay in the disposition of the present case which has lasted for more than thirteen (13) years. Respondent's assertion that he still has some evidence to present does not warrant the referral of the case to the IBP. Considering that in the investigation conducted by the Solicitor General respondent was given ample opportunity to present evidence, his failure to adduce additional evidence is entirely his own fault. There was therefore no denial of procedural due process. The record shows that respondent appeared as witness for himself and presented no less than eleven (11) documents to support his contentions. He was also allowed to cross-examine the complainant who appeared as a witness against him. II.

The Court will now address the substantive issue of whether or not respondent committed the acts of misconduct alleged by complainant Bautista.

After a careful review of the record of the case and the report and recommendation of the Solicitor General, the Court finds that respondent committed acts of misconduct which warrant the exercise by this Court of its disciplinary power.

The record shows that respondent prepared a document entitled "Transfer of Rights" which was signed by the Fortunados on August 31, 1971. The document assigned to respondent one-half (1/2) of the properties of the Fortunados covered by TCT No. T-1929, with an area of 239.650 sq. mm., and TCT No. T-3041, with an area of 72.907 sq. m., for and in consideration of his legal services to the latter. At the time the document was executed, respondent knew that the abovementioned properties were the subject of a civil case [Civil Case No. Q-15143] pending before the Court of First Instance of Quezon City since he was acting as counsel for the Fortunados in said case [See Annex "B" of Original Complaint, p. 12; Rollo, p. 16]. In executing the document transferring one-half (1/2) of the subject properties to himself, respondent violated the law expressly prohibiting a lawyer from acquiring his client's property or interest involved in any litigation in which he may take part by virtue of his profession [Article 1491, New Civil Code]. This Court has held that the

purchase by a lawyer of his client's property or interest in litigation is a breach of professional ethics and constitutes malpractice [Hernandez v. Villanueva, 40 Phil. 774 (1920); Go Beltran v. Fernandez, 70 Phil. 248 (1940)].

However, respondent notes that Canon 10 of the old Canons of Professional Ethics, which states that "[t]he lawyer should not purchase any interests in the subject matter of the litigation which he is conducting," does not appear anymore in the new Code of Professional Responsibility. He therefore concludes that while a purchase by a lawyer of property in litigation is void under Art. 1491 of the Civil Code, such purchase is no longer a ground for disciplinary action under the new Code of Professional Responsibility. This contention is without merit. The very first Canon of the new Code states that "a lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and legal process" (Emphasis supplied), Moreover, Rule 138, Sec. 3 of the Revised Rules of Court requires every lawyer to take an oath to 44 obey the laws [of the Republic of the Philippines] as well as the legal orders of the duly constituted authorities therein." And for any violation of this oath, a lawyer may be suspended or disbarred by the Supreme Court [Rule 138, Sec. 27, Revised Rules of Court]. All of these underscore the role of the lawyer as the vanguard of our legal system. The transgression of any provision of law by a lawyer is a repulsive and reprehensible act which the Court will not countenance. In the instant case, respondent, having violated Art. 1491 of the Civil Code, must be held accountable both to his client and to society.

Parenthetically, it should be noted that the persons mentioned in Art. 1491 of the Civil Code are prohibited from purchasing the property mentioned therein because of their existing trust relationship with the latter. A lawyer is disqualified from acquiring by purchase the property and rights in litigation because of his fiduciary relationship with such property and rights, as well as with the client. And it cannot be claimed that the new Code of Professional Responsibility has failed to emphasize the nature and consequences of such relationship. Canon 17 states that "a lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him." On the other hand, Canon 16 provides that "a lawyer shall hold in trust all moneys and properties of his client that may come into his possession." Hence, notwithstanding the absence of a specific provision on the matter in the new Code, the Court, considering the abovequoted provisions of the new Code in relation to Art. 1491 of the Civil Code, as well as the prevailing jurisprudence, holds that the purchase by a lawyer of his client's property in litigation constitutes a breach of professional ethics for which a disciplinary action may be brought against him. Respondent's next contention that the transfer of the properties was not really implemented, because the land development agreement on which the transfer depended was later rescinded, is untenable. Nowhere is it provided in the Transfer of Rights that the assignment of the properties of the Fortunados to respondent was subject to the implementation of the land development agreement. The last paragraph of the Transfer of Rights provides that:

... for and in consideration of the legal services of ATTY. RAMON A. GONZALES, Filipino, married to Lilia Yusay, and a resident of 23 Sunrise Hill, New Manila, Quezon City, rendered to our entire satisfaction, we hereby, by these presents, do transfer and convey to the said ATTY. RAMON A. GONZALES, his heirs, successor, and assigns, one-half (1/2) of our rights and interests in the abovedescribed property, together with all the improvements found therein [Annex D of the Complaint, Record, p. 28; Emphasis supplied].

It is clear from the foregoing that the parties intended the transfer of the properties to respondent to be absolute and unconditional, and irrespective of whether or not the land development agreement was implemented.

Another misconduct committed by respondent was his failure to disclose to complainant, at the time the land development agreement was entered into, that the land covered by TCT No. T-1929 had already been sold at a public auction. The land development agreement was executed on August 31, 1977 while the public auction was held on June 30, 1971. Respondent denies that complainant was his former client, claiming that his appearance for the complainant in an anti-graft case filed by the latter against a certain Gilbert Teodoro was upon the request of complainant and was understood to be only provisional. Respondent claims that since complainant was not his client, he had no duty to warn complainant of the fact that the land involved in their land development agreement had been sold at a public auction. Moreover, the sale was duly annotated at the back of TCT No. T-1929 and this, respondent argues, serves as constructive notice to complainant so that there was no concealment on his part. The above contentions are unmeritorious. Even assuming that the certificate of sale was annotated at the back of TCT No. T-1929, the fact remains that respondent failed to inform the complainant of the sale of the land to Samauna during the negotiations for the land development agreement. In so doing, respondent failed to live up to the rigorous standards of ethics of the law profession which place a premium on honesty and condemn duplicitous conduct. The fact that complainant was not a former client of respondent does not exempt respondent from his duty to inform complainant of an important fact pertaining to the land which is subject of their negotiation. Since he was a party to the land development agreement, respondent should have warned the complainant of the sale of the land at a public auction so that the latter could make a proper assessment of the viability of the project they were jointly undertaking. This Court has held that a lawyer should observe honesty and fairness even in his private dealings and failure to do so is a ground for disciplinary action against him [Custodio v. Esto, Adm. Case No. 1113, February 22, 1978, 81 SCRA 517].

Complainant also charges respondent with submitting to the court falsified documents purporting to be true copies of an addendum to the land development agreement. Based on evidence submitted by the parties, the Solicitor General found that in the document filed by respondent with the Court of First Instance of Quezon City, the

signatories to the addendum to the land development agreement namely, Ramon A. Gonzales, Alfaro T. Fortunado, Editha T. Fortunado, Nestor T. Fortunado, and Angel L. Bautista—were made to appear as having signed the original document on December 9, 1972, as indicated by the letters (SGD.) before each of their names. However, it was only respondent Alfaro Fortunado and complainant who signed the original and duplicate original (Exh. 2) and the two other parties, Edith Fortunado and Nestor Fortunado, never did. Even respondent himself admitted that Edith and Nestor Fortunado only signed the xerox copy (Exh. 2-A) after respondent wrote them on May 24, 1973, asking them to sign the said xerox copy attached to the letter and to send it back to him after signing [Rejoinder to Complainant's Reply, pp. 4-6; Rollo, pp. 327-329]. Moreover, respondent acknowledged that Edith and Nestor Fortunado had merely agreed by phone to sign, but had not actually signed, the alleged true copy of the addendum as of May 23, 1973 [Respondent's Supplemental Motion to Refer this Case to the Integrated Bar of the Philippines, p. 16]. Thus, when respondent submitted the alleged true copy of the addendum on May 23, 1973 as Annex "A" of his Manifestation filed with the Court of First Instance of Quezon City, he knowingly misled the Court into believing that the original addendum was signed by Edith Fortunado and Nestor Fortunado. Such conduct constitutes willful disregard of his solemn duty as a lawyer to act at all times in a manner consistent with the truth. A lawyer should never seek to mislead the court by an artifice or false statement of fact or law [Section 20 (d), Rule 138, Revised Rules of Court; Canon 22, Canons of Professional Ethics; Canon 10, Rule 10.01, Code of Professional Responsibility]. Anent the first charge of complainant, the Solicitor General found that no impropriety was committed by respondent in entering into a contingent fee contract with the Fortunados [Report and Recommendation, p. 8; Record, p. 394]. The Court, however, finds that the agreement between the respondent and the Fortunados, which provides in part that:

We the [Fortunados] agree on the 50% contingent fee, provided, you [respondent Ramon Gonzales] defray all expenses, for the suit, including court fees. Alfaro T. Fortunado [signed] Editha T. Fortunado [signed] Nestor T. Fortunado [signed] CONFORME

Ramon A. Gonzales [signed]

[Annex A to the Complaint, Record, p. 4].

is contrary to Canon 42 of the Canons of Professional Ethics which provides that a lawyer may not properly agree with a client to pay or bear the expenses of litigation. [See also Rule 16.04, Code of Professional Responsibility]. Although a lawyer may in good faith, advance the expenses of litigation, the same should be subject to reimbursement. The agreement between respondent and the Fortunados, however, does not provide for reimbursement to

respondent of litigation expenses paid by him. An agreement whereby an attorney agrees to pay expenses of proceedings to enforce the client's rights is champertous [JBP Holding Corp. v. U.S. 166 F. Supp. 324 (1958)]. Such agreements are against public policy especially where, as in this case, the attorney has agreed to carry on the action at his own expense in consideration of some bargain to have part of the thing in dispute [See Sampliner v. Motion Pictures Patents Co., et al., 255 F. 242 (1918)]. The execution of these contracts violates the fiduciary relationship between the lawyer and his client, for which the former must incur administrative sanctions. The Solicitor General next concludes that respondent cannot be held liable for acting as counsel for Eusebio Lopez, Jr. in Civil Case No. Q-15490 while acting as counsel for the Fortunados against the same Eusebio Lopez, Jr. in Civil Case No. Q-15143. The Court, after considering the record, agrees with the Solicitor General's findings on the matter. The evidence presented by respondent shows that his acceptance of Civil Case No. Q-15490 was with the knowledge and consent of the Fortunados. The affidavit executed by the Fortunados on June 23, 1976 clearly states that they gave their consent when respondent accepted the case of Eusebio Lopez, Jr. [Affidavit of Fortunados, dated June 23, 1976; Rollo, p. 198]. One of the recognized exceptions to the rule against representation of conflicting interests is where the clients knowingly consent to the dual representation after full disclosure of the facts by counsel [Canon 6, Canons of Professional Ethics; Canon 15, Rule 15.03, Code of Professional Responsibility]. Complainant also claims that respondent filed several complaints against him before the Court of First Instance and the Fiscal's Office of Quezon City for the sole purpose of harassing him.

The record shows that at the time of the Solicitor General's investigation of this case, Civil Case No. Q-18060 was still pending before the Court of First Instance of Quezon City, while the complaints for libel (I.S. No. 76-5912) and perjury (I.S. No. 5913) were already dismissed by the City Fiscal for insufficiency of evidence and lack of interest, respectively [Report and Recommendation, pp. 16-17; Rollo, pp. 402-403]. The Solicitor General found no basis for holding that the complaints for libel and perjury were used by respondent to harass complainant. As to Civil Case No. Q-18060, considering that it was still pending resolution, the Solicitor General made no finding on complainants claim that it was a mere ploy by respondent to harass him. The determination of the validity of the complaint in Civil Case No. Q-18060 was left to the Court of First Instance of Quezon City where the case was pending resolution.

The Court agrees with the above findings of the Solicitor General, and accordingly holds that there is no basis for holding that the respondent's sole purpose in filing the aforementioned cases was to harass complainant. Grounds 6, 8 and 9 alleged in the complaint need not be discussed separately since the above discussion on the other grounds sufficiently cover these remaining grounds.

The Court finds clearly established in this case that on four counts the respondent violated the law and the rules governing the conduct of a member of the legal profession. Sworn to assist in the administration of justice and to uphold the rule of law, he has "miserably failed to live up to the standards expected of a member of the Bar." [Artiaga v. Villanueva, Adm. Matter No. 1892, July 29, 1988, 163 SCRA 638, 647]. The Court agrees with the Solicitor General that, considering the nature of the offenses committed by respondent and the facts and circumstances of the case, respondent lawyer should be suspended from the practice of law for a period of six (6) months. WHEREFORE, finding that respondent Attorney Ramon A. Gonzales committed serious misconduct, the Court Resolved to SUSPEND respondent from the practice of law for SIX (6) months effective from the date of his receipt of this Resolution. Let copies of this Resolution be circulated to all courts of the country for their information and guidance, and spread in the personal record of Atty. Gonzales. SO ORDERED. G.R. No. 117438 June 8, 1995 RAUL SESBREÑO, petitioner, vs. HON, COURT OF APPEALS, and PATRICIA GIAN, SOTERO BRANZUELA, ANDRES C. YPIL, SANTIAGO BACAYO, BRIGIDO COHITMINGAO, VICTORINO DINOY, GUILLERMO MONTEJO and EMILIO RETUBADO, respondents.

Of interest to all law practitioners is the issue at bench, namely, whether the Court of Appeals had the authority to reduce the amount of attorney's fees awarded to petitioner Atty. Raul H. Sesbreño, notwithstanding the contract for professional services signed by private respondents. The antecedent facts of the case follow.

Fifty-two employees sued the Province of Cebu and then Governor Rene Espina for reinstatement and backwages. 1 Herein petitioner, Raul H. Sesbreño, replaced the employees' former counsel Atty. Catalino Pacquiao.

Thirty-two of the fifty-two employees signed two documents whereby the former agreed to pay petitioner 30% as attorney's fees and 20% as expenses to be taken from their back salaries.

On September 12, 1974, the trial court rendered a decision ordering the Province of Cebu to reinstate the petitioning employees and pay them back salaries. Said decision became final and executory after it was affirmed in toto by the Court of Appeals and the petition to review the appellate decision, denied by this Court in 1978. 2 A compromise agreement was entered into by the parties below in April 1979 whereby the former employees waived their right to reinstatement among others. Likewise, pursuant to said compromise agreement, the Province of Cebu released P2,300,000.00 to the

petitioning employees through petitioner as "Partial Satisfaction of Judgment." The amount represented back salaries, terminal leave pay and gratuity pay due to the employees.

Sometime November and December 1979, ten employees, herein private respondents, 3 filed manifestations before the trial court asserting that they agreed to pay petitioner 40% to be taken only from their back salaries.

The lower court issued two orders, with which petitioner complied, requiring him to release P10,000.00 to each of the ten private respondents and to retain 40% of the back salaries pertaining to the latter out of the P2,300,000.00 released to him. On March 28, 1980, the trial court fixed petitioner's attorney's fees at 40% of back salaries, terminal leave, gratuity pay and retirement benefits and 20% as expenses, or a total of 60% of all monies paid to the employees.

Private respondents' motion for reconsideration was granted and on June 10, 1980, the trial court modified the award after noting that petitioner's attorney's lien was inadvertently placed as 60% when it should have been only 50%. The dispositive portion of the order reads: WHEREFORE, in view of all the foregoing the order of this Court fixing 60% as attorney's fee[s] of Atty. Sesbreño should be 50% of all monies which the petitioners (Suico, et al.) may receive from the Provincial Government.

Obviously not satisfied with the attorney's fees fixed by the trial court, petitioner appealed to the Court of Appeals claiming additional fees for legal services before the Supreme Court, reimbursement for expenses and a clear statement that the fee be likewise taken from retirement pay awarded to his clients. Unfortunately, the respondent appellate court did not agree with him as the generous award was further reduced. 4

The appellate court noted that in this jurisdiction, attorney 's fees are always subject to judicial control and deemed the award of 20% of the back salaries awarded to private respondents as a fair, equitable and reasonable amount of attorney's fee. The decretal portion of the decision reads: WHEREFORE, the questioned order is MODIFIED. The attorney's fees due Atty. Raul Sesbreño is fixed at an amount equivalent to 20% of all back salaries which the Province of Cebu has awarded to herein 10 petitioners.5

Hence this petition for review where he claims that attorney's fees amounting to 50% of all monies awarded to his clients as contingent fees should be upheld for being consistent with prevailing case law and the contract of professional services between the parties. He adds that since private respondents did not appeal, they are not entitled to affirmative relief other than that granted in the regional trial court.

We find no reversible error in the decision of the Court of Appeals and vote to deny the petition.

Respondent court found that the contract of professional services entered into by the parties 6 authorized petitioner to take a total of 50% from the employees' back salaries only. The trial court, however, fixed the lawyer's fee on the basis of all monies to be awarded to private respondents. Fifty per cent of all monies which private respondents may receive from the provincial government, according to the Court of Appeals, is excessive and unconscionable, not to say, contrary to the contract of professional services. 7 After considering the facts and the nature of the case, as well as the length of time and effort exerted by petitioner, respondent court reduced the amount of attorney's fees due him. It is a settled rule that what a lawyer may charge and receive as attorney's fees is always subject to judicial control. 8 A lawyer is primarily an officer of the court charged with the duty of assisting the court in administering impartial justice between the parties. When he takes his oath, he submits himself to the authority of the court and subjects his professional fees to judicial control. 9 As stated by the Court in the case of Sumaong v. Judge:10

A lawyer is not merely the defender of his client's cause and a trustee of his client in respect of the client's cause of action and assets; he is also, and first and foremost, an officer of the court and participates in the fundamental function of administering justice in society. It follows that a lawyer's compensation for professional services rendered are subject to the supervision of the court, not just to guarantee that the fees he charges and receives remain reasonable and commensurate with the services rendered, but also to maintain the dignity and integrity of the legal profession to which he belongs. Upon taking his attorney 's oath as an officer of the court, a lawyer submits himself to the authority of the courts to regulate his right to professional fees. 11

In the case at bench, the parties entered into a contingent fee contract. The Agreement provides: WE, the undersigned petitioners in the case of POLICRONIO BELACHO, ET AL., VS. RENE ESPINA ET AL., hereby agree to pay Atty. Sesbreño, our lawyer, the following to be taken from our back salaries: 30% as attorney's fees 20% as expenses

That we enter into agreement in order to be paid our back salaries as early as possible and so that we may be reinstated as early as possible.

A stipulation on a lawyer's compensation in a written contract for professional services ordinarily controls the amount of fees that the contracting lawyer may be allowed, unless the court finds such stipulated amount unreasonable unconscionable. 12 A contingent fee arrangement is valid in this jurisdiction 13 and is generally recognized as valid and binding but must be laid down in an express contract. 14 The amount of contingent fees agreed upon by the parties is subject to the stipulation that counsel will be paid for his legal services only if the suit or litigation prospers. A much higher compensation is allowed as contingent fees in consideration of the risk that the lawyer may get nothing if the suit fails. Contingent fee contracts are under the supervision and close scrutiny of the court in order that clients may be protected from unjust charges. 15 Its validity depends in large measure on the reasonableness of the stipulated fees under the circumstances of each case. 16

When the courts find that the stipulated amount is excessive or the contract is unreasonable or unconscionable, or found to have been marred by fraud, mistake, undue influence or suppression of facts on the part of the attorney, public policy demands that said contract be disregarded to protect the client from unreasonable exaction. 17 Stipulated attorney's fees are unconscionable whenever the amount is by far so disproportionate compared to the value of the services rendered as to amount to fraud perpetrated upon the client. This means to say that the amount of the fee contracted for, standing alone and unexplained would be sufficient to show that an unfair advantage had been taken of the client, or that a legal fraud had been perpetrated on him. 18 The decree of unconscionability or unreasonableness of a stipulated amount in a contingent fee contract, will not however, preclude recovery. It merely justifies the court's fixing a reasonable amount for the lawyer's services.

Courts may always ascertain, if the attorney's fees are found to be excessive, what is reasonable under the circumstances. Quantum meruit, meaning "as much as he deserves," is used as the basis for determining the lawyer's professional fees in the absence of a contract. Factors such as the time spent and extent of services rendered; novelty and difficulty of the questions involved; importance of the subject matter; skill demanded; probability of losing other employment as a result of acceptance of the proffered case; customary charges for similar services; amount involved in the controversy and the benefits resulting to the client; certainty of compensation; character of employment; and professional standing of the lawyer, are considered in determining his fees. 19

There is nothing irregular about the respondent court's finding that the 50% fee of petitioner is unconscionable As aptly put by the court: It effectively deprives the appellees of a meaningful victory of the suit they have passionately pursued. Balancing the allocation of the monetary award, 50% of all monies to

the lawyer and the other 50% to be allocated among all his 52 clients, is too lop-sided in favor of the lawyer. The ratio makes the practice of law a commercial venture, rather than a noble profession.

. . . Also, the 52 employees who are the plaintiffs in the aforementioned civil case were dismissed from employment, their means of livelihood. All 52 hired claimant-appellant as counsel so that they could be reinstated and their source of income restored. It would, verily be ironic if the counsel whom they had hired to help would appropriate for himself 50% or even 60% of the total amount collectible by these employees. Here is an instance where the courts should intervene. 20 Considering the nature of the case, which is a labor case, the amount recovered and petitioner's participation in the case, an award of 50% of back salaries of his 52 clients indeed strikes us as excessive. Under the circumstances, a fee of 20% of back salaries would be a fair settlement in this case. In any event, this award pertains only to the ten private respondents herein. Petitioner has already been compensated in the amount of 50% of all monies received, by the rest of his clients in the case below.

WHEREFORE, in view of the foregoing, the petition is DENIED and the appealed decision AFFIRMED. SO ORDERED.