Problem-areas-in-ethics-cases.docx

EN BANC DOLORES C. BELLEZA, A.C. No. 7815 Complainant, Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, CORONA, CARPIO MORALES, - v e r s u s - CHICO-NAZARIO, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION,* PERALTA and BERSAMIN, JJ. ATTY. ALAN S. MACASA, Respondent. Promulgated: July 23, 2009 x----------------------------------------------------x RESOLUTION Per Curiam: This treats of the complaint for disbarment filed by complainant Dolores C. Belleza against respondent Atty. Alan S. Macasa for unprofessional and unethical conduct in connection with the handling of a criminal case involving complainants son.

On November 10, 2004, complainant went to see respondent on referral of their mutual friend, Joe Chua. Complainant wanted to avail of respondents legal services in connection with the case of her son, Francis John Belleza, who was arrested by policemen of Bacolod City earlier that day for alleged violation of Republic Act (RA) 9165.[1] Respondent agreed to handle the case for P30,000. The following day, complainant made a partial payment of P15,000 to respondent thru their mutual friend Chua. On November 17, 2004, she gave him an additional P10,000. She paid the P5,000 balance on November 18, 2004. Both payments were also made thru Chua. On all three occasions, respondent did not issue any receipt. On November 21, 2004, respondent received P18,000 from complainant for the purpose of posting a bond to secure the provisional liberty of her (complainants) son. Again, respondent did not issue any receipt. When complainant went to the court the next day, she found out that respondent did not remit the amount to the court. Complainant demanded the return of the P18,000 from respondent on several occasions but respondent ignored her. Moreover, respondent failed to act on the case of complainants son and complainant was forced to avail of the services of the Public Attorneys Office for her sons defense. Thereafter, complainant filed a verified complaint[2]for disbarment against respondent in the Negros Occidental chapter of the Integrated Bar of the Philippines (IBP). Attached to the verified complaint was the affidavit[3] of Chua which read: I, JOE CHUA, of legal age, Filipino and resident of Purok Sawmill, Brgy. Bata, Bacolod City, after having been sworn to in accordance with law, hereby depose and state: 1. That I am the one who introduce[d] Mrs. Dolores C. Belleza [to] Atty. Alan Macasa when she looked for a lawyer to help her son in the case that the latter is facing sometime [i]n [the] first week of November 2004; 2. That by reason of my mutual closeness to both of them, I am the one who facilitated the payment of Mrs. DOLORES C. BELLEZA to Atty. Alan Macasa; 3. That as far as I know, I received the following amount from Mrs. Dolores Belleza as payment for Atty. Alan Macasa: Date Amount November 11, 2004 P15,000.00 A week after 10,000.00 November 18, 2004 5,000.00 4. That the above-mentioned amounts which I supposed as Attorneys Fees were immediately forwarded by me to Atty. [Macasa]; 5. That I am executing this affidavit in order to attest to the truth of all the foregoing statements. x x x x x x x x x[4]

In a letter dated May 23, 2005,[5] the IBP Negros Occidental chapter transmitted the complaint to the IBPs Commission on Bar Discipline (CBD).[6] In an order dated July 13, 2005,[7] the CBD required respondent to submit his answer within 15 days from receipt thereof. Respondent, in an urgent motion for extension of time to file an answer dated August 10, 2005,[8] simply brushed aside the complaint for being baseless, groundless and malicious without, however, offering any explanation. He also prayed that he be given until September 4, 2005 to submit his answer. Respondent subsequently filed urgent motions[9] for second and third extensions of time praying to be given until November 4, 2005 to submit his answer. He never did. When both parties failed to attend the mandatory conference on April 19, 2006, they were ordered to submit their respective position papers.[10] In its report and recommendation dated October 2, 2007,[11] the CBD ruled that respondent failed to rebut the charges against him. He never answered the complaint despite several chances to do so. The CBD found respondent guilty of violation of Rule 1.01 of the Code of Professional Responsibility which provides: Rule 1.01 A lawyer shall not engage in unlawful, dishonest, immoral, or deceitful conduct. It also found him guilty of violation of Rules 16.01 and 16.02 of the Code of Professional Responsibility: Rule 16.01 A lawyer shall account for all money or property collected or received for or from the client. Rule 16.02 A lawyer shall keep the funds of each client separate and apart from his own and those others kept by him. The CBD ruled that respondent lacked good moral character and that he was unfit and unworthy of the privileges conferred by law on him as a member of the bar. The CBD recommended a suspension of six months with a stern warning that repetition of similar acts would merit a more severe sanction. It also recommended that respondent be ordered to return to complainant the P18,000 intended for the provisional liberty of the complainants son and the P30,000 attorneys fees. The Board of Governors of the IBP adopted and approved the report and recommendation of the CBD with the modification that respondent be ordered to return to complainant only the amount of P30,000 which he received as attorneys fees.[12] We affirm the CBDs finding of guilt as affirmed by the IBP Board of Governors but we modify the IBPs recommendation as to the liability of respondent. Respondent Disrespected Legal Processes

Respondent was given more than enough opportunity to answer the charges against him. Yet, he showed indifference to the orders of the CBD for him to answer and refute the accusations of professional misconduct against him. In doing so, he failed to observe Rule 12.03 of the Code of Professional Responsibility: Rule 12.03 A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda or briefs, let the period lapse without submitting the same or offering an explanation for his failure to do so. Respondent also ignored the CBDs directive for him to file his position paper. His propensity to flout the orders of the CBD showed his lack of concern and disrespect for the proceedings of the CBD. He disregarded the oath he took when he was accepted to the legal profession to obey the laws and the legal orders of the duly constituted legal authorities. He displayed insolence not only to the CBD but also to this Court which is the source of the CBDs authority. Respondents unjustified disregard of the lawful orders of the CBD was not only irresponsible but also constituted utter disrespect for the judiciary and his fellow lawyers.[13] His conduct was unbecoming of a lawyer who is called upon to obey court orders and processes and is expected to stand foremost in complying with court directives as an officer of the court.[14] Respondent should have known that the orders of the CBD (as the investigating arm of the Court in administrative cases against lawyers) were not mere requests but directives which should have been complied with promptly and completely.[15] Respondent Grossly Neglected The Cause of His Client Respondent undertook to defend the criminal case against complainants son. Such undertaking imposed upon him the following duties: CANON 17 A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM. CANON 18 A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE. xxxxxxxxx Rule 18.03 A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable. xxxxxxxxx CANON 19 A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL WITHIN THE BOUNDS OF THE LAW. A lawyer who accepts the cause of a client commits to devote himself (particularly his time, knowledge, skills and effort) to such cause. He must be ever mindful of the trust and confidence reposed in him, constantly striving to be worthy thereof. Accordingly, he owes full devotion to the interest of his client, warm zeal in the maintenance and defense of his clients rights and the exertion of his utmost learning, skill and ability to ensure that nothing shall be taken or withheld from his client, save by the rules of law legally applied.[16]

A lawyer who accepts professional employment from a client undertakes to serve his client with competence and diligence.[17] He must conscientiously perform his duty arising from such relationship. He must bear in mind that by accepting a retainer, he impliedly makes the following representations: that he possesses the requisite degree of learning, skill and ability other lawyers similarly situated possess; that he will exert his best judgment in the prosecution or defense of the litigation entrusted to him; that he will exercise reasonable care and diligence in the use of his skill and in the application of his knowledge to his clients cause; and that he will take all steps necessary to adequately safeguard his clients interest.[18] A lawyers negligence in the discharge of his obligations arising from the relationship of counsel and client may cause delay in the administration of justice and prejudice the rights of a litigant, particularly his client. Thus, from the perspective of the ethics of the legal profession, a lawyers lethargy in carrying out his duties to his client is both unprofessional and unethical.[19] If his clients case is already pending in court, a lawyer must actively represent his client by promptly filing the necessary pleading or motion and assiduously attending the scheduled hearings. This is specially significant for a lawyer who represents an accused in a criminal case. The accused is guaranteed the right to counsel under the Constitution.[20] However, this right can only be meaningful if the accused is accorded ample legal assistance by his lawyer: ... The right to counsel proceeds from the fundamental principle of due process which basically means that a person must be heard before being condemned. The due process requirement is a part of a person's basic rights; it is not a mere formality that may be dispensed with or performed perfunctorily. The right to counsel must be more than just the presence of a lawyer in the courtroom or the mere propounding of standard questions and objections. The right to counsel means that the accused is amply accorded legal assistance extended by a counsel who commits himself to the cause for the defense and acts accordingly. The right assumes an active involvement by the lawyer in the proceedings, particularly at the trial of the case, his bearing constantly in mind of the basic rights of the accused, his being well-versed on the case, and his knowing the fundamental procedures, essential laws and existing jurisprudence.[21] ∞○∞ [T]he right of an accused to counsel is beyond question a fundamental right. Without counsel, the right to a fair trial itself would be of little consequence, for it is through counsel that the accused secures his other rights. In other words, the right to counsel is the right to effective assistance of counsel.[22] The right of an accused to counsel finds substance in the performance by the lawyer of his sworn duty of fidelity to his client.[23] Tersely put, it means an effective, efficient and truly decisive legal assistance, not a simply perfunctory representation.[24] In this case, after accepting the criminal case against complainants son and receiving his attorneys fees, respondent did nothing that could be considered as effective and efficient legal assistance. For all intents and purposes, respondent abandoned the cause of his client. Indeed, on account of respondents continued inaction, complainant was compelled to seek the services of the Public Attorneys Office. Respondents lackadaisical attitude towards the case of complainants son was reprehensible. Not only did it prejudice complainants son, it also deprived him of his constitutional right to counsel. Furthermore, in failing to use the amount entrusted to him for posting a bond to

secure the provisional liberty of his client, respondent unduly impeded the latters constitutional right to bail. Respondent Failed to Return His Clients Money The fiduciary nature of the relationship between counsel and client imposes on a lawyer the duty to account for the money or property collected or received for or from the client.[25] When a lawyer collects or receives money from his client for a particular purpose (such as for filing fees, registration fees, transportation and office expenses), he should promptly account to the client how the money was spent. If he does not use the money for its intended purpose, he must immediately return it to the client.[26] His failure either to render an accounting or to return the money (if the intended purpose of the money does not materialize) constitutes a blatant disregard of Rule 16.01 of the Code of Professional Responsibility.[27] Moreover, a lawyer has the duty to deliver his clients funds or properties as they fall due or upon demand.[28] His failure to return the clients money upon demand gives rise to the presumption that he has misappropriated it for his own use to the prejudice of and in violation of the trust reposed in him by the client.[29] It is a gross violation of general morality as well as of professional ethics; it impairs public confidence in the legal profession and deserves punishment.[30] Indeed, it may border on the criminal as it may constitute a prima facie case of swindling or estafa. Respondent never denied receiving P18,000 from complainant for the purpose of posting a bond to secure the provisional liberty of her son. He never used the money for its intended purpose yet also never returned it to the client. Worse, he unjustifiably refused to turn over the amount to complainant despite the latters repeated demands. Moreover, respondent rendered no service that would have entitled him to the P30,000 attorneys fees. As a rule, the right of a lawyer to a reasonable compensation for his services is subject to two requisites: (1) the existence of an attorney-client relationship and (2) the rendition by the lawyer of services to the client.[31] Thus, a lawyer who does not render legal services is not entitled to attorneys fees. Otherwise, not only would he be unjustly enriched at the expense of the client, he would also be rewarded for his negligence and irresponsibility. Respondent Failed to Uphold the Integrity and Dignity of the Legal Profession For his failure to comply with the exacting ethical standards of the legal profession, respondent failed to obey Canon 7 of the Code of Professional Responsibility: CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND THE DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR. (emphasis supplied) Indeed, a lawyer who fails to abide by the Canons and Rules of the Code of Professional Responsibility disrespects the said Code and everything that it stands for. In so doing, he disregards the ethics and disgraces the dignity of the legal profession. Lawyers should always live up to the ethical standards of the legal profession as embodied in the Code of Professional Responsibility. Public confidence in law and in lawyers may be eroded by the

irresponsible and improper conduct of a member of the bar.[32] Thus, every lawyer should act and comport himself in a manner that would promote public confidence in the integrity of the legal profession.[33] Respondent was undeserving of the trust reposed in him. Instead of using the money for the bond of the complainants son, he pocketed it. He failed to observe candor, fairness and loyalty in his dealings with his client.[34] He failed to live up to his fiduciary duties. By keeping the money for himself despite his undertaking that he would facilitate the release of complainants son, respondent showed lack of moral principles. His transgression showed him to be a swindler, a deceitful person and a shame to the legal profession. WHEREFORE, respondent Atty. Alan S. Macasa is hereby found GUILTY not only of dishonesty but also of professional misconduct for prejudicing Francis John Bellezas right to counsel and to bail underSections 13 and 14(2), Article III of the Constitution, and for violating Canons 1, 7, 17, 18 and 19 and Rules 12.03, 16.01, 16.02, 16.03 and 18.03 of the Code of Professional Responsibility. He is therefore DISBARRED from the practice of law effective immediately. Respondent is hereby ORDERED to return to complainant Dolores C. Belleza the amounts of P30,000 and P18,000 with interest at 12% per annum from the date of promulgation of this decision until full payment. Respondent is further DIRECTED to submit to the Court proof of payment of the amount within ten days from payment. Failure to do so will subject him to criminal prosecution. Let copies of this resolution be furnished the Office of the Bar Confidant to be entered into the records of respondent Atty. Alan S. Macasa and the Office of the Court Administrator to be furnished to the courts of the land for their information and guidance. SO ORDERED.

Republic of the Philippines Supreme Court Manila

THIRD DIVISION VALENTIN C. MIRANDA,

A. C. No. 6281

Complainant,

Present:

PERALTA, J., Acting Chairperson, ABAD, PEREZ,* - versus-

MENDOZA, and PERLAS-BERNABE, JJ. Promulgated:

September 26, 2011 ATTY. MACARIO D. CARPIO, Respondent. x---------------------------------------------------------------------------------------x DECISION PERALTA, J.:

This is a disbarment case against Atty. Macario D. Carpio filed by Valentin C. Miranda.[1]

The facts, as culled from the records, are as follows:

Complainant Valentin C. Miranda is one of the owners of a parcel of land consisting of 1,890 square meters located at Barangay Lupang Uno, Las Pias, Metro Manila. In 1994, complainant initiated Land Registration Commission (LRC) Case No. M-226 for the registration of the aforesaid property. The case was filed before the Regional Trial Court of Las PiasCity, Branch 275. During the course of the proceedings, complainant engaged the services of respondent Atty. Carpio as counsel in the said case when his original counsel, Atty. Samuel Marquez, figured in a vehicular accident. In complainant's Affidavit,[2]complainant and respondent agreed that complainant was to pay respondent Twenty Thousand Pesos (PhP20,000.00) as acceptance fee and Two Thousand Pesos (PhP2,000.00) as appearance fee. Complainant paid respondent the amounts due him, as evidenced by receipts duly signed by the latter. During the last hearing of the case, respondent demanded the additional amount of Ten Thousand Pesos (PhP10,000.00) for the preparation of a memorandum, which he said would further strengthen complainant's position in the case, plus twenty percent (20%) of the total area of the subject property as additional fees for his services.

Complainant did not accede to respondent's demand for it was contrary to their agreement. Moreover, complainant co-owned the subject property with his siblings, and he could not have agreed to the amount being demanded by respondent without the knowledge and approval of his co-heirs.As a result of

complainant's refusal to satisfy respondent's demands, the latter became furious and their relationship became sore. On January 12, 1998, a Decision was rendered in LRC Case No. M-226, granting the petition for registration, which Decision was declared final and executory in an Order dated June 5, 1998. On March 24, 2000, the Land Registration Authority (LRA) sent complainant a copy of the letter addressed to the Register of Deeds (RD) of Las Pias City, which transmitted the decree of registration and the original and owner's duplicate of the title of the property. On April 3, 2000, complainant went to the RD to get the owner's duplicate of the Original Certificate of Title (OCT) bearing No. 0-94. He was surprised to discover that the same had already been claimed by and released to respondent on March 29, 2000. On May 4, 2000, complainant talked to respondent on the phone and asked him to turn over the owner's duplicate of the OCT, which he had claimed without complainant's knowledge, consent and authority.Respondent insisted that complainant first pay him the PhP10,000.00 and the 20% share in the property equivalent to 378 square meters, in exchange for which, respondent would deliver the owner's duplicate of the OCT. Once again, complainant refused the demand, for not having been agreed upon. In a letter[3] dated May 24, 2000, complainant reiterated his demand for the return of the owner's duplicate of the OCT. On June 11, 2000, complainant made the same demand on respondent over the telephone. Respondent reiterated his previous demand and angrily told complainant to comply, and threatened to have the OCT cancelled if the latter refused to pay him.

On June 26, 2000, complainant learned that on April 6, 2000, respondent registered an adverse claim on the subject OCT wherein he claimed that the agreement on the payment of his legal services was 20% of the property and/or actual market value. To date, respondent has not returned the owner's duplicate

of OCT No. 0-94 to complainant and his co-heirs despite repeated demands to effect the same. In seeking the disbarment or the imposition of the appropriate penalty upon respondent, complainant invokes the following provisions of the Code of Professional Responsibility: Canon 20. A lawyer shall charge only fair and reasonable fees. Canon 16. A lawyer shall hold in trust all moneys and properties of his client that may come into his possession. Canon 16.03. A lawyer shall deliver the funds and properties of his client when due or upon demand. x x x

In defense of his actions, respondent relied on his alleged retaining lien over the owner's duplicate of OCT No. 0-94. Respondent admitted that he did not turn over to complainant the owner's duplicate of OCT No. 0-94 because of complainant's refusal, notwithstanding repeated demands, to complete payment of his agreed professional fee consisting of 20% of the total area of the property covered by the title, i.e., 378 square meters out of 1,890 square meters, or its equivalent market value at the rate of PhP7,000.00 per square meter, thus, yielding a sum of PhP2,646,000.00 for the entire 378-square-meter portion and that he was ready and willing to turn over the owner's duplicate of OCT No. 0-94, should complainant pay him completely the aforesaid professional fee.

Respondent admitted the receipt of the amount of PhP32,000.00, however, he alleged that the amount earlier paid to him will be deducted from the 20% of the current value of the subject lot. He alleged that the agreement was not reduced into writing, because the parties believed each other based on their mutual trust. He denied that he demanded the payment of PhP10,000.00 for the preparation of a memorandum, since he considered the same unnecessary.

In addition to the alleged agreement between him and complainant for the payment of the 20% professional fees, respondent invoked the principle of quantum meruit to justify the amount being demanded by him.

In its Report and Recommendation[4]dated June 9, 2005, the Integrated Bar of the Philippines-Commission on Bar Discipline (IBP-CBD) recommended that respondent be suspended from the practice of law for a period of six (6) months for unjustly withholding from complainant the owner's duplicate of OCT No. 0-94 in the exercise of his so-called attorney's lien. In Resolution No. XVII-2005173,[5] dated December 17, 2005, the IBP Board of Governors adopted and approved the Report and Recommendation of the IBP-CBD.

Respondent filed a motion for reconsideration of the resolution of the IBP Board of Governors adopting the report and recommendation of the IBP-CBD. Pending the resolution of his motion for reconsideration, respondent filed a petition for review[6] with this Court. The Court, in a Resolution[7] dated August 16, 2006, directed that the case be remanded to the IBP for proper disposition, pursuant to this Court's resolution in Noriel J. Ramientas v. Atty. Jocelyn P. Reyala.[8] In Notice of Resolution No. XVIII-2008-672, dated December 11, 2008, the IBP Board of Governors affirmed Resolution No. XVII-2005-173, dated December 17, 2005, with modification that respondent is ordered to return the complainant's owner's duplicate of OCT No. 0-94 within fifteen days from receipt of notice. Hence, the present petition. The Court sustains the resolution of the IBP Board of Governors, which affirmed with modification the findings and recommendations of the IBP-CBD. Respondent's claim for his unpaid professional fees that would legally give him the right to retain the property of his client until he receives what is allegedly due him has been paid has no basis and, thus, is invalid.

Section 37, Rule 138 of the Rules of Court specifically provides: Section 37. Attorneys liens. An attorney shall have a lien upon the funds, documents and papers of his client, which have lawfully come into his possession and may retain the same until his lawful fees and disbursements have been paid, and may apply such funds to the satisfaction thereof. He shall also have a lien to the same extent upon all judgments for the payment of money, and executions issued in pursuance of such judgments, which he has secured in a litigation of his client, from and after the time when he shall have caused a statement of his claim of such lien to be entered upon the records of the court rendering such judgment, or issuing such execution, and shall have caused written notice thereof to be delivered to his client and to the adverse party; and he shall have the same right and power over such judgments and executions as his client would have to enforce his lien and secure the payment of his just fees and disbursements.

An attorney's retaining lien is fully recognized if the presence of the following elements concur: (1) lawyer-client relationship; (2) lawful possession of the client's funds, documents and papers; and (3) unsatisfied claim for attorney's fees.[9] Further, the attorney's retaining lien is a general lien for the balance of the account between the attorney and his client, and applies to the documents and funds of the client which may come into the attorney's possession in the course of his employment.[10] In the present case, complainant claims that there is no such agreement for the payment of professional fee consisting of 20% of the total area of the subject property and submits that their agreement was only for the payment of the acceptance fee and the appearance fees. As correctly found by the IBP-CBD, there was no proof of any agreement between the complainant and the respondent that the latter is entitled to an additional professional fee consisting of 20% of the total area covered by OCT No. 0-94. The agreement between the parties only shows that respondent will be paid the acceptance fee and the appearance fees, which the respondent has duly received.Clearly, there is no unsatisfied claim for attorney's fees that would entitle

respondent to retain his client's property.Hence, respondent could not validly withhold the title of his client absence a clear and justifiable claim.

Respondent's unjustified act of holding on to complainant's title with the obvious aim of forcing complainant to agree to the amount of attorney's fees sought is an alarming abuse by respondent of the exercise of an attorney's retaining lien, which by no means is an absolute right, and cannot at all justify inordinate delay in the delivery of money and property to his client when due or upon demand.[11]

Atty. Carpio failed to live up to his duties as a lawyer by unlawfully withholding and failing to deliver the title of the complainant, despite repeated demands, in the guise of an alleged entitlement to additional professional fees. He has breached Rule 1.01 of Canon 1 and Rule 16.03 of Canon 16 of the Code of Professional Responsibility, which read: CANON 1 - A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL PROCESS.

Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. CANON 16 - A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS POSSESSION. Rule 16.03 - A lawyer shall deliver the funds and property of his client when due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. He shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for in the Rules of Court.

Further, in collecting from complainant exorbitant fees, respondent violated Canon 20 of the Code of Professional Responsibility, which mandates that a lawyer shall charge only fair and reasonable fees. It is highly improper for a lawyer to impose additional professional fees upon his client which were never mentioned nor agreed upon at the time of the engagement of his services. At the outset, respondent should have informed the complainant of all the fees or possible fees that he would charge before handling the case and not towards the near conclusion of the case. This is essential in order for the complainant to determine if he has the financial capacity to pay respondent before engaging his services. Respondent's further submission that he is entitled to the payment of additional professional fees on the basis of the principle of quantum meruit has no merit."Quantum meruit, meaning `as much as he deserved' is used as a basis for determining the lawyer's professional fees in the absence of a contract but recoverable by him from his client."[12]The principle of quantum meruit applies if a lawyer is employed without a price agreed upon for his services. In such a case, he would be entitled to receive what he merits for his services, as much as he has

earned.[13] In the present case, the parties had already entered into an agreement as to the attorney's fees of the respondent, and thus, the principle of quantum meruit does not fully find application because the respondent is already compensated by such agreement. The Court notes that respondent did not inform complainant that he will be the one to secure the owner's duplicate of the OCT from the RD and failed to immediately inform complainant that the title was already in his possession.Complainant, on April 3, 2000, went to the RD of Las Pias City to get the owner's duplicate of OCT No. 0-94, only to be surprised that the said title had already been claimed by, and released to, respondent on March 29, 2000. A lawyer must conduct himself, especially in his dealings with his clients, with integrity in a manner that is beyond reproach. His relationship with his clients should be characterized by the highest degree of good faith and fairness.[14] By keeping secret with the client his acquisition of the title, respondent was not fair in his dealing with his client. Respondent could have easily informed the complainant immediately of his receipt of the owner's duplicate of the OCT on March 29, 2000, in order to save his client the time and effort in going to the RD to get the title. Respondent's inexcusable act of withholding the property belonging to his client and imposing unwarranted fees in exchange for the release of said title deserve the imposition of disciplinary sanction. Hence, the ruling of the IBP Board of Governors, adopting and approving with modification the report and recommendation of the IBP-CBD that respondent be suspended from the practice of law for a period of six (6) months and that respondent be ordered to return the complainant's owner's duplicate of OCT No. 0-94 is hereby affirmed. However, the fifteen-day period from notice given to respondent within which to return the title

should be modified and, instead, respondent should return the same immediately upon receipt of the Court's decision. WHEREFORE, Atty. Macario D. Carpio isSUSPENDED from the practice of law for a period of six (6) months, effective upon receipt of this Decision. He is ordered toRETURN to the complainant the owner's duplicate of OCT No. 0-94 immediately upon receipt of this decision. He isWARNED that a repetition of the same or similar act shall be dealt with more severely.

Let a copy of this Decision be furnished to the Office of the Bar Confidant, to be appended to the personal record of Atty. Macario D. Carpio as a member of the Bar; the Integrated Bar of the Philippines; and the Office of the Court Administrator for circulation to all courts in the country for their information and guidance. SO ORDERED

Republic of the Philippines

Supreme Court Manila

SECOND DIVISION

JUDGE RENE B. BACULI,

A.C. No. 8920

Complainant, Present: BRION, J.,* Acting Chairperson, DEL CASTILLO,**

- versus -

PEREZ, MENDOZA,*** and SERENO, JJ.

Promulgated: ATTY. MELCHOR A. BATTUNG, Respondent.

September 28, 2011

x------------------------------------------------------------------------------------x

DECISION

BRION, J.:

Before us is the resolution[1] of the Board of Governors of the Integrated Bar of the Philippines (IBP) finding Atty. Melchor Battung liable for violating Rule 11.03, Canon 11 of the Code of Professional Responsibility and recommending that he be reprimanded.The complainant is Judge Rene B. Baculi, Presiding Judge of the Municipal Trial Court in Cities, Branch 2, Tuguegarao City. The respondent, Atty. Battung, is a member of the Bar with postal address on Aguinaldo St., Tuguegarao City.

Background

Judge Baculi filed a complaint for disbarment[2] with the Commission on Discipline of the IBP against the respondent, alleging that the latter violated Canons 11[3] and 12[4] of the Code of Professional Responsibility.

Violation of Canon 11 of the Code of Professional Responsibility

Judge Baculi claimed that on July 24, 2008, during the hearing on the motion for reconsideration of Civil Case No. 2502, the respondent was shouting while arguing his motion. Judge Baculi advised him to tone down his voice but instead, the respondent shouted at the top of his voice. When warned that he would be cited for direct contempt, the respondent shouted, Then cite

me![5] Judge Baculi cited him for direct contempt and imposed a fine of P100.00. The respondent then left.

While other cases were being heard, the respondent re-entered the courtroom and shouted, Judge, I will file gross ignorance against you! I am not afraid of you![6] Judge Baculi ordered the sheriff to escort the respondent out of the courtroom and cited him for direct contempt of court for the second time.

After his hearings, Judge Baculi went out and saw the respondent at the hall of the courthouse, apparently waiting for him. The respondent again shouted in a threatening tone, Judge, I will file gross ignorance against you! I am not afraid of you! He kept on shouting, I am not afraid of you! and challenged the judge to a fight. Staff and lawyers escorted him out of the building.[7]

Judge Baculi also learned that after the respondent left the courtroom, he continued shouting and punched a table at the Office of the Clerk of Court.[8]

Violation of Canon 12 of the Code of Professional Responsibility

According to Judge Baculi, the respondent filed dilatory pleadings in Civil Case No. 2640, an ejectment case.

Judge Baculi rendered on October 4, 2007 a decision in Civil Case No. 2640, which he modified on December 14, 2007. After the modified decision became final and executory, the branch clerk of court issued a certificate of finality. The respondent filed a motion to quash the previously issued writ of execution, raising as a ground the motion to dismiss filed by the defendant for lack of jurisdiction. Judge Baculi asserted that the respondent knew as a lawyer that ejectment cases are within the jurisdiction of First Level Courts and the latter was merely delaying the speedy and efficient administration of justice.

The respondent filed his Answer,[9]essentially saying that it was Judge Baculi who disrespected him.[10] We quote from his Answer:

23. I only told Judge Rene Baculi I will file Gross ignorance of the Law against him once inside the court room when he was lambasting me[.]

24. It was JUDGE BACULI WHO DISRESPECTED ME. He did not like that I just submit the Motion for Reconsideration without oral argument because he wanted to have an occasion to just HUMILIATE ME and to make appear to the public that I am A NEGLIGENT LAWYER, when he said YOU JUSTIFY YOUR NEGLIGENCE BEFORE THIS COURT making it an impression to the litigants and the public that as if I am a NEGLIGENT, INCOMPETENT, MUMBLING, and IRRESPONSIBLE LAWYER.

25. These words of Judge Rene Baculi made me react[.]

xxxx

28. Since I manifested that I was not going to orally argue the Motion, Judge Rene Baculi could have just made an order that the Motion for Reconsideration is submitted for resolution, but what he did was that he forced me to argue so that he will have the room to humiliate me as he used to do not only to me but almost of the lawyers here (sic).

Atty. Battung asked that the case against him be dismissed.

The IBP conducted its investigation of the matter through Commissioner Jose de la Rama, Jr. In his Commissioners Report,[11] Commissioner De la Rama stated that during the mandatory conference on January 16, 2009, both parties merely reiterated what they alleged in their submitted pleadings. Both parties agreed that the original copy of the July 24, 2008 tape of the incident at the courtroom would be submitted for the Commissioners review. Judge Baculi submitted the tape and the transcript of stenographic notes on January 23, 2009.

Commissioner De la Rama narrated his findings, as follows:[12]

At the first part of the hearing as reflected in the TSN, it was observed that the respondent was calm. He politely argued his case but the voice of the complainant appears to be in high pitch. During the mandatory conference, it was also observed that indeed, the complainant maintains a high pitch whenever he speaks. In fact, in the TSN, where there was already an argument, the complainant stated the following:

Court: Do not shout. Atty. Battung: Because the court is shouting. Court: This court has been constantly under this kind of voice Atty. Battung, we are very sorry if you do not want to appear before my court, then you better attend to your cases and do not appear before my court if you do not want to be corrected! (TSN, July 24, 2008, page 3)

(NOTE: The underlined words we are very sorry [ were] actually uttered by Atty. Battung while the judge was saying the quoted portion of the TSN)

That it was during the time when the complainant asked the following questions when the undersigned noticed that Atty. Battung shouted at the presiding judge.

Court: Did you proceed under the Revised Rules on Summary Procedure?

* Atty. Battung: It is not our fault Your Honor to proceed because we were asked to present our evidence ex parte. Your Honor, so, if should we were ordered (sic) by the court to follow the rules on summary procedure. (TSN page 3, July 24, 2008)

It was observed that the judge uttered the following:

Court: Do not shout. Atty. Battung: Because the court is shouting. (Page 3, TSN July 24, 2008) Note: * it was at this point when the respondent shouted at the complainant.

Thereafter, it was observed that both were already shouting at each other.

Respondent claims that he was provoked by the presiding judge that is why he shouted back at him. But after hearing the tape, the undersigned in convinced that it was Atty. Battung who shouted first at the complainant.

Presumably, there were other lawyers and litigants present waiting for their cases to be called. They must have observed the incident. In fact, in the joint-affidavit submitted by Elenita Pacquing et al., they stood as one in saying that it was really Atty. Battung who shouted at the judge that is why the latter cautioned him not to shout.

The last part of the incident as contained in page 4 of the TSN reads as follows:

Court: You are now ordered to pay a fine of P100.00.

Atty. Battung: We will file the necessary action against this court for gross ignorance of the law.

Court: Yes, proceed. (NOTE: Atty. Battung went out the courtroom)

Court: Next case.

Interpreter: Civil Case No. 2746. (Note: Atty. Battung entered again the courtroom)

Atty. Battung: But what we do not like (not finished)

Court: The next time

Atty. Battung: We would like to clear

Court: Sheriff, throw out the counsel, put that everything in record. If you want to see me, see me after the court. Next case.

Civil Case No. 2746 for Partition and Damages, Roberto Cabalza vs. Teresita Narag, et al. (nothing follows)

Commissioner De la Rama found that the respondent failed to observe Canon 11 of the Code of Professional Responsibility that requires a lawyer to observe and maintain respect due the courts and judicial officers. The respondent also violated Rule 11.03 of Canon 11 that provides that a lawyer shall abstain from scandalous, offensive or menacing language or behavior before the courts. The respondents argument that Judge Baculi provoked him to shout should not be given due consideration since the respondent should not have shouted at the presiding judge; by doing so, he created the impression that disrespect of a judge could be tolerated. What the respondent should have done was to file an action before the Office of the Court Administrator if he believed that Judge Baculi did not act according to the norms of judicial conduct.

With respect to the charge of violation of Canon 12 of the Code of Professional Responsibility, Commissioner De la Rama found that the evidence

submitted is insufficient to support a ruling that the respondent had misused the judicial processes to frustrate the ends of justice.

Commissioner De la Rama recommended that the respondent be suspended from the practice of law for six (6) months.

On October 9, 2010, the IBP Board of Governors passed a Resolution adopting and approving the Report and Recommendation of the Investigating Commissioner, with the modification that the respondent be reprimanded.

The Courts Ruling

We agree with the IBPs finding that the respondent violated Rule 11.03, Canon 11 of the Code of Professional Responsibility. Atty. Battung disrespected Judge Baculi by shouting at him inside the courtroom during court proceedings in the presence of litigants and their counsels, and court personnel. The respondent even came back to harass Judge Baculi. This behavior, in front of many witnesses, cannot be allowed. We note that the respondent continued to threaten Judge Baculi and acted in a manner that clearly showed disrespect for his position even after the latter had cited him for contempt. In fact, after initially leaving the court, the respondent returned to the courtroom and disrupted the ongoing proceedings. These actions were not only against the person, the position and the stature of Judge Baculi, but against the court as well whose proceedings were openly and flagrantly disrupted, and brought to disrepute by the respondent.

Litigants and counsels, particularly the latter because of their position and avowed duty to the courts, cannot be allowed to publicly ridicule, demean and disrespect a judge, and the court that he represents. The Code of Professional Responsibility provides:

Canon 11 - A lawyer shall observe and maintain the respect due the courts and to judicial officers and should insist on similar conduct by others.

Rule 11.03 - A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the Courts.

We ruled in Roxas v. De Zuzuarregui, Jr.[13] that it is the duty of a lawyer, as an officer of the court, to uphold the dignity and authority of the courts. Respect for the courts guarantees the stability of the judicial institution; without this guarantee, the institution would be resting on very shaky foundations.

A lawyer who insults a judge inside a courtroom completely disregards the latters role, stature and position in our justice system. When the respondent publicly berated and brazenly threatened Judge Baculi that he would file a case for gross ignorance of the law against the latter, the respondent effectively acted in a manner tending to erode the public confidence in Judge Baculis competence and in his ability to decide cases. Incompetence is a matter that, even if true, must be handled with sensitivity in the manner provided under the Rules of Court; an objecting or complaining lawyer cannot act in a manner that puts the courts in a bad light and bring the justice system into disrepute.

The IBP Board of Governors recommended that Atty. Battung be reprimanded, while the Investigating Commissioner recommended a penalty of six (6) months suspension.

We believe that these recommended penalties are too light for the offense.

In Re: Suspension of Atty. Rogelio Z. Bagabuyo, Former Senior State Prosecutor,[14] we suspended Atty. Bagabuyo for one year for violating Rule 11.05, Canon 11, and Rule 13.02, Canon 13 of the Code of Professional Responsibility, and for violating the Lawyers Oath for airing his grievances against a judge in newspapers and radio programs. In this case, Atty. Battungs violations are no less serious as they were committed in the courtroom in the course of judicial proceedings where the respondent was acting as an officer of the court, and before the litigating public. His actions were plainly disrespectful to Judge Baculi and to the court, to the point of being scandalous and offensive to the integrity of the judicial system itself.

WHEREFORE, in view of the foregoing, Atty. Melchor A. Battung is found GUILTYof violating Rule 11.03, Canon 11 of the Code of Professional Responsibility, for which he is SUSPENDED from the practice of law for one (1) year effective upon the finality of this Decision. He is STERNLY WARNED that a repetition of a similar offense shall be dealt with more severely.

Let copies of this Decision be furnished the Office of the Bar Confidant, to be appended to the respondents personal record as an attorney; the Integrated Bar of the Philippines; the Department of Justice; and all courts in the country, for their information and guidance.

SO ORDERED

Republic of the Philippines SUPREME COURT Manila EN BANC A.C. No. 9608

November 27, 2012

MARIA VICTORIA B. VENTURA, Complainant, vs. ATTY. DANILO S. SAMSON, Respondent. DECISION PER CURIAM: The Court has often reminded members of the bar to live up to the standards and norms of the legal profession by upholding the ideals and principles embodied in the Code of Professional Responsibility. Lawyers are bound to maintain not only a high standard of legal proficiency, but also of morality, honesty, integrity and fair dealing. Lawyers are at all times subject to the watchful public eye and community approbation. Needless to state, those whose conduct – both public and private – fail this scrutiny have to be disciplined and, after appropriate proceedings, accordingly penalized.1 Complainant Maria Victoria B. Ventura filed on July 29, 2004 a Complaint2 for Disbarment or Suspension before the Integrated Bar of the Philippines (IBP) Commission on Bar Discipline against respondent Atty. Danilo S. Samson for "grossly immoral conduct." In her complaint, complainant alleged that 2. The herein Complainant MARIA VICTORIA B. VENTURA executed a Sworn Statement dated 19 April 2002 and a Supplemental-Complaint dated 10 May 2002 stating therein that the crime of RAPE was committed against her person sometime in December, 2001 and on 19 March 2002 when she was merely thirteen (13) years of age by herein Respondent ATTY. DANILO S. SAMSON, then thirty eight (38) years old, married to Teresita B. Samson, Filipino and resident of Barangay 5, San Francisco, Agusan Del Sur, Philippines…. 3. In his Counter-Affidavit, herein Respondent ATTY. DANILO S. SAMSON admitted that sexual intercourse indeed transpired between the herein Complainant MARIA VICTORIA B. VENTURA and himself…. 4. After the conduct of preliminary investigation, the Office of the Provincial Prosecutor of Agusan Del Sur, Philippines issued a RESOLUTION dated 10 June 2002 dismissing the charge of RAPE and finding the existence of probable cause for the crime of QUALIFIED SEDUCTION and issued the corresponding INFORMATION for QUALIFIED SEDUCTION on 04 July 2002…. 5. Thereafter, the herein Complainant filed a MOTION FOR RECONSIDERATION dated 26 August 2002 which was denied in the RESOLUTION dated 02 October 2002 of the Office of the Provincial Prosecutor of Agusan Del Sur….

6. The aforesaid RESOLUTION dated 02 October 2002 was elevated to the Department of Justice, by way of a PETITION FOR REVIEW, and is pending resolution by the Department of Justice. xxxx 8. The act/s committed by the herein Respondent Atty. Danilo S. Samson against the herein Complainant MARIA VICTORIA B. VENTURA as hereinbefore stated clearly constitute … "grossly immoral conduct" under Section 27 of Rule 138 of the Rules of Court of the Philippines which provides for a penalty of "DISBARMENT or SUSPENSION of an Attorney by the SUPREME COURT." Complainant narrated in her Sworn Statement3that sometime in December 2001, at around midnight, she was sleeping in the maid’s room at respondent’s house when respondent entered and went on top of her. Respondent kissed her lips, sucked her breast, and succeeded in having sexual intercourse with her. She felt pain and found blood stain in her panty. She stated that another incident happened on March 19, 2002 at respondent’s poultry farm in Alegria, San Francisco, Agusan del Sur. Respondent asked her to go with him to the farm. He brought her to an old shanty where he sexually abused her. Thereafter, respondent gave her five hundred pesos and warned her not to tell anyone what had happened or he would kill her and her mother. In her Supplemental-Complaint,4 complainant averred that respondent allowed her to sleep in his house after her mother agreed to let her stay there while she studied at the Agusan National High School. She further stated that on the night she was sexually abused, she was awakened when respondent went on top of her. She struggled to free herself and shouted, but respondent covered her mouth and nobody could hear as nobody was in the house. Complainant also claimed that on March 19, 2002, between 5:00 p.m. to 6:00 pm, respondent forced her to ride a multi-cab. When they arrived at his poultry farm in Alegria, respondent dragged her to a dilapidated shack. She resisted his advances but her efforts proved futile. Respondent alleged in his Answer5 that 2. Respondent admits the allegations in paragraph 2 of the complaint to the effect that Maria Victoria Ventura filed a complaint against him for Rape at the Provincial Prosecutor’s Office with qualification that the said complaint for Rape was dismissed. Respondent, however, has no knowledge or information as to the truth of the allegation that she was 13 years…. xxxx 5. Respondent vehemently denies the truth of the allegations in paragraph 8 of the complaint to the effect that the acts of respondent in having sex with complainant constitute … grossly immoral conduct. The truth is that the act of respondent in having sex with complainant was done with mutual agreement after respondent gave money to complainant. Respondent respectfully submits that his act of having sex with complainant once does not constitute… grossly immoral conduct. There is no human law that punishes a person who has sex with a woman with mutual agreement and complainant accepts compensation therefore. Having sex with complainant once with just compensation does not amount to immoral conduct…. xxxx

6. The complaint is instigated by Corazon Ventura who was an employee at the Law Office of respondent herein. The said Corazon Ventura entertained hatred and had a grudge against the herein respondent who terminated her services due to misunderstanding…. 7. The filing of the Criminal Case against respondent as well as this Administrative Case is a well orchestrated and planned act of Corazon Ventura as vengeance against respondent as a result of her separation from the employment in the Law Office of the respondent. This claim is supported by the Affidavit of Natividad Ruluna, the former Office Clerk at the Law Office of respondent…. 8. To show that Corazon Ventura desires to get back at respondent, she demanded from respondent to settle with her and demanded the payment of the amount of P2,000,000.00; otherwise she will file a case against him in Court for Rape and for disbarment. Respondent did not come across with Corazon Ventura, the latter made good her threats and filed the criminal case for Rape. [sic] When the case for rape did not prosper because the Prosecutor dropped the Rape Case, Corazon Ventura sent word to respondent that she is amenable for the amount of P400,000.00. In effect, Corazon Ventura wanted to extort from respondent so that she can get even with him and his wife for separating her from the employment; 9. Complainant is a woman of loose moral character. This is supported by the Affidavit of Patronio Punayan, Jr. which is hereto attached as Annex "3". And Corazon Ventura can afford to utilize Maria Victoria Ventura as her instrument in putting down the respondent herein because Maria Victoria Ventura is not her biological daughter and she knows before hand that her ward has a questionable reputation. The fact that Corazon Ventura is not the biological mother of Maria Victoria Ventura is shown by the pre-trial order in Criminal Case No. 5414…. xxxx Respondent has not violated any grounds mentioned in this rule. Respondent respectfully submits that his having sex with complainant with just compensation once does not amount to immoral conduct. For who among men will not yield to temptation when a woman shall invite him for sex? Attached to respondent’s Answer is his Counter-Affidavit6 which he submitted to the Provincial Prosecutor. He alleged therein that complainant usually stayed late at night with her male friends when her mother was out of the house. He claimed that he heard rumors that complainant had sexual affairs with different boys. Respondent narrated that on March 19, 2002, he saw complainant with some of her classmates near their rented house. Complainant told him that they wanted to go out to swim but they did not have money. When she asked if he could spare some amount, he gave her money. He told her in jest that he wanted to see her that afternoon and go to a place where they could be alone, and he was surprised when she agreed. He just thought that for complainant, sex is a common thing despite her age. At around 5:00 p.m., he fetched complainant at her house. She casually walked towards the car and boarded it. He told her that they will not check in a lodging house because people might recognize him. Upon reaching his poultry farm, respondent met his farm worker and asked him if he could use the latter’s hut. The farm worker agreed and they went straight to the hut. Inside the farm worker’s hut, complainant did not hesitate in entering the room. Respondent did not notice any involuntariness on her part as she undressed herself. He asserted that they had sexual intercourse based on their mutual understanding. Thereafter, the complainant dressed up and walked back to the multi-cab where she waited for him. He told her not to tell anyone about what had happened, to which she replied "natural buang kay motug-an" meaning, she’s not crazy as to tell

anyone. He alleged that she accepted the money he gave because she needed to buy some things but her mother did not give her any allowance. Respondent insisted that what happened between them was the first and the last incident. He claimed that he was able to confirm that complainant is no longer a virgin. It likewise appears that the Investigating Prosecutors found that probable cause exists for respondent to stand trial for qualified seduction.7 The charge of rape, however, was dismissed for insufficiency of evidence. An Information was filed with the Regional Trial Court (RTC) of Agusan del Sur, Branch 6, but complainant who was not satisfied with the dismissal of the rape charge, filed a motion for reconsideration. When said motion was denied, complainant filed a petition for review with the Department of Justice (DOJ). However, the DOJ sustained the findings of the prosecutor. Then, on December 14, 2006, complainant and her mother appeared before the public prosecutor and executed their respective Affidavits of Desistance.8 Complainant stated that what happened between respondent and her in March 2002 was based on mutual understanding. Thus, she was withdrawing the complaint she filed against respondent before the RTC as well as the one she filed before the IBP Commission on Bar Discipline. Accordingly, the criminal case against respondent was dismissed.9 In its Report and Recommendation10 dated October 10, 2007, the IBP Commission on Bar Discipline recommended that respondent be suspended for a period of one year from the practice of law for immorality with the warning that repetition of the same or similar act will merit a more severe penalty. On November 10, 2007, the Board of Governors of the IBP issued Resolution No. XVIII-2007-237, to wit: RESOLVED to ADOPT and APPROVE, as it is hereby unanimously ADOPTED and APPROVED with modification, the Report and Recommendation of the Investigating Commissioner of the aboveentitled case, herein made part of this Resolution as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering that respondent is found guilty of immorality, the victim is a minor, respondent and his wife was victim’s guardians and for being a married man, Atty. Danilo S. Samson is hereby SUSPENDED from the practice of law for five (5) years with Stern Warning that repetition of the same or similar act in the future will be dealt with more severely.11 Complainant now moves to reconsider the IBP Resolution. She argues that the penalty imposed by the IBP is not commensurate to the gravity and depravity of the offense. She contends that respondent committed grossly immoral conduct by forcing himself to have sexual intercourse with a young and innocent lass of 13 years of age. He also took advantage of his moral ascendancy over complainant considering that she was then staying at respondent’s residence. Moreover, there was a betrayal of the marital vow of fidelity considering that respondent was a married man. She insists that this detestable behavior renders respondent unfit and undeserving of the honor and privilege which his license confers upon him.Thus, complainant prays that the penalty of disbarment be imposed.12 Meanwhile, respondent also filed a Motion for Reconsideration13 of the IBP Resolution. He asserts that complainant has not presented any proof of her minority. Likewise, during the sexual encounter, complainant was not under their custody. He contends that complainant’s mother even testified that her daughter stayed at respondent’s house only until February 2002. He further stresses that because of his admission and remorse, and since this is the first time he has been found administratively liable, he is entitled to a reduction of the penalty to one year suspension from the practice of law.

The pertinent provisions in the Code of Professional Responsibility provide: CANON 1 - A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL PROCESSES. Rule 1.01. - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. xxxx CANON 7 - A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR. xxxx Rule 7.03. - A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession. As we explained in Zaguirre v. Castillo,14 the possession of good moral character is both a condition precedent and a continuing requirement to warrant admission to the bar and to retain membership in the legal profession. It is the bounden duty of members of the bar to observe the highest degree of morality in order to safeguard the integrity of the Bar.15Consequently, any errant behavior on the part of a lawyer, be it in the lawyer’s public or private activities, which tends to show said lawyer deficient in moral character, honesty, probity or good demeanor, is sufficient to warrant suspension or disbarment. Immoral conduct involves acts that are willful, flagrant, or shameless, and that show a moral indifference to the opinion of the upright and respectable members of the community.16Immoral conduct is gross when it is so corrupt as to constitute a criminal act, or so unprincipled as to be reprehensible to a high degree, or when committed under such scandalous or revolting circumstances as to shock the community’s sense of decency.17 From the undisputed facts gathered from the evidence and the admissions of respondent himself, we find that respondent’s act of engaging in sex with a young lass, the daughter of his former employee, constitutes gross immoral conduct that warrants sanction. Respondent not only admitted he had sexual intercourse with complainant but also showed no remorse whatsoever when he asserted that he did nothing wrong because she allegedly agreed and he even gave her money. Indeed, his act of having carnal knowledge of a woman other than his wife manifests his disrespect for the laws on the sanctity of marriage and his own marital vow of fidelity. Moreover, the fact that he procured the act by enticing a very young woman with money showed his utmost moral depravity and low regard for the dignity of the human person and the ethics of his profession. In Cordova v. Cordova,18 we held that the moral delinquency that affects the fitness of a member of the bar to continue as such includes conduct that outrages the generally accepted moral standards of the community, conduct for instance, which makes a mockery of the inviolable social institution of marriage. Respondent has violated the trust and confidence reposed on him by complainant, then a 13-yearold minor,19 who for a time was under respondent’s care. Whether the sexual encounter between the respondent and complainant was or was not with the latter’s consent is of no moment. Respondent clearly committed a disgraceful, grossly immoral and highly reprehensible act. Such conduct is a

transgression of the standards of morality required of the legal profession and should be disciplined accordingly. Section 27, Rule 138 of the Rules of Court expressly states that a member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for, among others, any deceit, grossly immoral conduct, or violation of the oath that he is required to take before admission to the practice of law. It bears to stress that membership in the Bar is a privilege burdened with conditions. As a privilege bestowed by law through the Supreme Court, membership in the Bar can be withdrawn where circumstances concretely show the lawyer’s lack of the essential qualifications required of lawyers.20 Likewise, it was held in Maligsa v. Cabanting21that a lawyer may be disbarred for any misconduct, whether in his professional or private capacity, which shows him to be wanting in moral character, in honesty, probity and good demeanor or unworthy to continue as an officer of the court. Similarly, in Dumadag v. Lumaya,22the Court pronounced: The practice of law is a privilege burdened with conditions. Adherence to the rigid standards of mental fitness, maintenance of the highest degree of morality and faithful compliance with the rules of the legal profession are the conditions required for remaining a member of good standing of the bar and for enjoying the privilege to practice law. The fact that complainant filed an Affidavit of Desistance during the pendency of this case is of no moment. Complainant’s Affidavit of Desistance cannot have the effect of abating the instant proceedings in view of the public service character of the practice of law and the nature of disbarment proceedings as a public interest concern. A case of suspension or disbarment is sui generis and not meant to grant relief to a complainant as in a civil case, but is intended to cleanse the ranks of the legal profession of its undesirable members in order to protect the public and the courts. A disbarment case is not an investigation into the acts of respondent but on his conduct as an officer of the court and his fitness to continue as a member of the Bar.23 1âw phi 1

Illicit sexual relations have been previously punished with disbarment, indefinite or definite suspension, depending on the circumstances.24In this case, respondent’s gross misbehavior and unrepentant demeanor clearly shows a serious flaw in his character, his moral indifference to sexual exploitation of a minor, and his outright defiance of established norms. All these could not but put the legal profession in disrepute and place the integrity of the administration of justice in peril, hence the need for strict but appropriate disciplinary action.25 The Court is mindful of the dictum that the power to disbar must be exercised with great caution, and only in a clear case of misconduct that seriously affects the standing and character of the lawyer as an officer of the Court and as a member of the bar. Thus, where a lesser penalty, such as temporary suspension, could accomplish the end desired, disbarment should never be decreed.26 However, in the present case, the seriousness of the offense compels the Court to wield its power to disbar as it appears to be the most appropriate penalty.27 WHEREFORE, respondent Atty. Danilo S. Samson is hereby DISBARRED for Gross Immoral Conduct, Violation of his oath of office, and Violation of Canon 1, Rule 1.01 and Canon 7, Rule 7.03 of the Code of Professional Responsibility. Let a copy of this Decision, which is immediately executory, be made part of the records of respondent in the Office of the. Bar Confidant, Supreme Court of the Philippines. And let copies of the Decision be furnished the Integrated Bar of the Philippines and circulated to all courts.

This Decision takes effect immediately. SO ORDERED.

FIRST DIVISION FELICITAS S. QUIAMBAO, Adm. Case No. 6708

Complainant, (CBD Case No. 01 -874) Present: DAVIDE, JR., C.J., (Chairman),

- versus - QUISUMBING, SANTIAGO, CARPIO, and AZCUNA, JJ.

ATTY. NESTOR A. BAMBA , Promulgated:

Respondent. August 25, 2005

X- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

RESOLUTION DAVIDE, JR., C.J.:

We are aware of the hapless fact that there are not enough lawyers to serve an exploding population. This unfortunate state of affairs, however, will not seize this Court from exercising its disciplinary power over lawyers culpable of serious indiscretions . The incidence of public force must be deployed to bear upon the community

to eventually forge a legal profession that provides quality, ethical, accessible, and cost-effective legal service to our people and whose members are willing and able to answer t he call to public service.

In this administrative case for disbarment, complainant Felicitas S. Quiambao charges respondent Atty. Nestor A. Bamba with violation of the Code of Professional Responsibility for representing conflicting interests when the latter filed a case against her while he was at that time representing her in another case, and for committing other acts of disloyalty and double -dealing.

From June 2000 to January 2001, the complainant was the president and managing director of Allied In vestigation Bureau, Inc. (AIB), a family-owned corporation engaged in providing security and investigation services. She avers that she procured the legal services of the respondent not only for the corporate affairs of AIB but also for her personal case. Particularly, the respondent acted as her counsel of record in an ejectment case against Spouses Santiago and Florita Torroba filed by her on 29 December 2000 before the Metropolitan Trial Court (MeTC) of Paraaque City, which was docketed as Civil Case No. 11928. She paid attorneys fees for respondents legal services in that case. [ 1 ] About six months after she resigned as AIB president, or on 14 June 2001, the respondent filed on behalf of AIB a complaint for replevin and damages against her before the MeTC of Quezon City for the purpose of recovering from her the car of AIB assigned to her as a service vehicle. This he did without withdrawing as counsel of reco rd in the ejectment case, which was then still pending. [ 2 ]

Apart from the foregoing litigation matter, the complainant, in her Position Paper, charges the respon dent with acts of disloyalty and double-dealing. She avers that the respondent proposed to her that she organize her own security agency and that he would assist her in its organization, causing her to resign as president of AIB. The

respondent indeed assi sted her in December 2000 in the formation of another security agency, Quiambao Risk Management Specialists, Inc., (QRMSI), which was later registered under complainants name, with the respondent as a silent partner represented by his associate Atty. Gerardo P. Hernandez. The respondent was paid attorneys fees for his legal services in organizing and incorporating QRMSI. He also planned to steal or pirate some of the more important clients of AIB. While serving as legal counsel for AIB and a silent partner of QRMSI, he convinced complainants brother Leodegario Quiambao to organize another security agency, San Esteban Security Services, Inc. (SESSI) where he (the respondent) served as its incorporator, director, and president. The respondent and Leodegario th en illegally diverted the funds of AIB to fund the incorporation of SESSI, and likewise planned to eventually close down the operations of AIB and transfer the business to SESSI. [ 3 ]

For his part, the respondent admits that he represented the complainant in the aforementioned ejectment case and later represented AIB in the replevin case against her. He, however, denies that he was the personal lawyer of the complai nant, and avers that he was made to believe that it was part of his function as counsel for AIB to handle even the personal cases of its officers. Even assuming that the complainant confided to him privileged information about her legal interests, the ejec tment case and the replevin case are unrelated cases involving different issues and parties and, therefore, the privileged information which might have been gathered from one case would have no use in the other. At any rate, it was the complainant herself who insisted that he stay as her counsel despite the perceived differences among her, her brother, and AIB over the motor vehicle subject of the replevin case. The complainant even asked him to assist her in her monetary claims against AIB. [ 4 ]

The respondent also denies the charge raised by the complainant in her position paper that he agreed to be a silent partner of QRMSI

through his nominee, Atty. Gerardo P. He rnandez, who was his former law partner. He declined complainants offer to assume that role and suggested Atty. Hernandez in his place; thus, 375 shares of stock were registered in Atty. Hernandezs name as consideration of his (Atty. Hernandezs) legal serv ices as corporate secretary and legal counsel of QRMSI. The respondent also denies that he convinced complainants brother Leodegario to organize another security agency and that the funds of AIB were unlawfully diverted to SESSI. It was to complement the business of AIB, which was then in danger of collapse, that SESSI was established. Leodegarios wife and her son have the effective control over SESSI. Respondents subscribed shareholdings in SESSI comprise only 800 shares out of 12,500 subscribed shares. He serves AIB and SESSI in different capacities: as legal counsel of the former and as president of the latter. [ 5 ]

In his Report and Recommendation [ 6 ] dated 31 August 2004, the investigating commissioner of the IBP found the respondent guilty of representing conflicting interests based on the following undisputed facts: first, the respondent was still complainants counsel of record in the ejectment case when he filed, as legal counsel of AIB, the replevin case against her; and second, the respondent was still the legal counsel of AIB when he advised the complainant on the inco rporation of another security agency, QRMSI, and recommended his former law partner, Atty. Gerardo Hernandez, to be its corporate secretary and legal counsel and also when he conferred with Leodegario to organize another security agency, SESSI, where the r espondent became an incorporator, stockholder, and president. Thus, the investigating commissioner recommended that the respondent be suspended from the practice of law for one year.

The IBP Board of Governors adopted and approved the investigating commissioners report and recommendation, but reduced the penalty from one year to a stern reprimand. [ 7 ]

The issue in this case is whether the respondent is guilty of misconduct for representing conflicting interests in contravention of the basic tenets of the legal profession.

Rule 15.03, Canon 5 of the Code of Professional Responsibility provides: A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts. This prohibition is founded on principles of public policy and good taste. [ 8 ] In the course of a lawyer-client relationship, the lawyer learns all the facts connected with the clients case, including the weak and strong points of the case. The nature of that relationship is, therefore, one of trust and confidence of the highest degree. [ 9 ] It behooves lawyers not only to keep inviolate the clients confidence, but also to avoid the appearance of treachery and double -dealing for only then can litigants be encou raged to entrust their secrets to their lawyers, which is of paramount importance in the administration of justice. [ 1 0 ]

In broad terms, lawyers are deemed to represent conflicting interests when, in behalf of one client, it is their duty to contend for that which duty to another client requires them to oppose. [ 1 1 ] Developments in jurisprudence have particularized various tests to determine whether a lawyers conduct lies within this proscription. One test is whether a lawyer is duty-bound to fight for an issue or claim in behalf of one client and, at the same time, t o oppose that claim for the other client. [ 1 2 ] Thus, if a lawyers argument for one client has to be opposed by that same lawyer in arguing for the other client, th ere is a violation of the rule.

Another test of inconsistency of interests is whether the acceptance of a new relation would prevent the full discharge of the lawyers duty of undivided fidelity and loyalty to the client or invite suspicion of unfaithfuln ess or double-dealing in the performance of that duty. [ 1 3 ] Still another test is whether the lawyer would be called upon in the new relation to use against a form er client any confidential information acquired through their connection or previous employment. [ 1 4 ]

The proscription against representation of conflicting inte rests applies to a situation where the opposing parties are present clients in the same action or in an unrelated action. It is of no moment that the lawyer would not be called upon to contend for one client that which the lawyer has to oppose for the othe r client, or that there would be no occasion to use the confidential information acquired from one to the disadvantage of the other as the two actions are wholly unrelated. It is enough that the opposing parties in one case, one of whom would lose the suit, are present clients and the nature or conditions of the lawyers respective retainers with each of them would affect the performance of the duty of undivided fidelity to both clients. [ 1 5 ]

In this case, it is undisputed that at the time the respondent filed the replevin case on behalf of AIB he was still the counsel of record of the complainant in the pending ejectment case. We do not sustain respondents theory t hat since the ejectment case and the replevin case are unrelated cases fraught with different issues, parties, and subject matters, the prohibition is inapplicable. His representation of opposing clients in both cases, though unrelated, obviously constitut es conflict of interest or, at the least, invites suspicion of double -dealing. While the respondent may assert that the complainant expressly consented to his continued representation in the ejectment case, the respondent failed to show that he fully discl osed the facts to both his clients and he failed to present any written consent of the complainant

and AIB as required under Rule 15.03, Canon 15 of the Code of Professional Responsibility.

Neither can we accept respondents plea that he was duty -bound to handle all the cases referred to him by AIB, including the personal cases of its officers which had no connection to its corporate affairs. That the representation of conflicting interest is in good faith and with honest intention on the part of the lawye r does not make the prohibition inoperative. [ 1 6 ] Moreover, lawyers are not obliged to act either as an adviser or advocate for every person who may wish to become their client. They have the right to decline such employment, subject, however, to Canon 14 of the Code of Professional Responsibility. [ 1 7 ] Although there are inst ances where lawyers cannot decline representation, [ 1 8 ] they cannot be made to labor under conflict of interest between a present client and a prospective one. [ 1 9 ]

Additionally, in his position paper, the respondent alleges that when the complainant invited the respondent to join QRMSI, he vehemently refused to join them due to his perception of conflicting interest as he was then (and still is at present) the Legal Counsel of AIB, which is also a security agency. [ 2 0 ] To bolster his allegation, he invoked the affidavits of complainants witnesses which contained statements of his apprehension of conflict of interest should he join QRMSI. [ 2 1 ]

Surprisingly, despite his apprehension or awareness of a possible conflict of interest should he join QRMSI, the respondent later allowed himself to become an incorporator, stockholder, and president of SESSI, which is also a security agency. He justi fied his act by claiming that that while both AIB and SESSI are engaged in security agency business, he is serving in different capacities. As the in -house legal counsel of AIB, he serves its legal interest the parameter of which evolves around legal matte rs such as protecting the legal rights and interest of the corporation; conducting an investigation or a hearing

on violations of company rules and regulations of their office employees and security guards; sending demand letters in collection cases; and representing the corporation in any litigation for or against it. And as president of SESSI, he serves the operational aspects of the business such as how does it operate[], how much do they price their services, what kind or how do they train[] their secur ity guards, how they solicit clients. Thus, conflict of interest is far -fetched.Moreover, the respondent argues that the complainant, not being a stockholder of AIB and SESSI, has no right to question his alleged conflict of interest in serving the two sec urity agencies. [ 2 2 ]

While the complainant lacks personality to question the alleged conflict of interests on the part of the respondent in serving both security agencies, we cannot just turn a blind eye to respondents act. It must be noted that the proscription against representation of conflicting interests finds application where the conflicting interests arise with respect to the same general matter however sl ight the adverse interest may be. It applies even if the conflict pertains to the lawyers private activity or in the performance of a function in a non professional capacity. [ 2 3 ] In the process of determining whether there is a conflict of interest, an important criterion is probability, not certainty, of conflict.

Since the respondent has financial or pecuniary interest in SESSI, which is engaged in a business c ompeting with his clients, and, more importantly, he occupies the highest position in SESSI, one cannot help entertaining a doubt on his loyalty to his client AIB. This kind of situation passes the second test of conflict of interest, which is whether the acceptance of a new relationship would prevent the full discharge of the lawyers duty of undivided fidelity and loyalty to the client or invite suspicion of unfaithfulness or double -dealing in the performance of that duty. The close relationship of the maj ority stockholders of both companies does not negate the conflict of

interest. Neither does his protestation that his shareholding in SESSI is a mere pebble among the sands.

In view of all of the foregoing, we find the respondent guilty of serious misconduct for representing conflicting interests. Furthermore, it must be noted that Republic Act No. 5487, otherwise known as the Private Security Agency Law , prohibits a person from organizing or having an interest in more than one security agency. From respondents position paper, it can be culled that Leodegario Quiambao is the president and managing director of AIB, holding 60% of the outstanding shares; while his four other siblings who are permanent residents in the United States own the remaining 40%. [ 2 4 ] This prohibition notwithstanding, the respondent organized SESSI, with Leodegarios wife and son as majority stockholders holding about 70% of the outstanding sha res and with him (the respondent), as well as the rest of the stockholders, holding minimal shares. [ 2 5 ] In doing so, the respondent virtually allowed Leodegario a nd the latters wife to violate or circumvent the law by having an interest in more than one security agency. It must be noted that in the affidavit [ 2 6 ] of Leodegarios wife, she mentioned of their conjugal property. In the absence of evidence to the contrary, the property relation of Leodegario and his wife can be presumed to be that of conjugal partnership of gains; hence, the majority shares in AIB and SESSI are the conjugal property of Leodegario and his wife, thereby placing themselves in possession of an interest in more than one security agency in contravention of R.A. No. 5487. Thus, in organizing SESSI, the respondent violated Rule 1.02, Canon 1 of the Code o f Professional Responsibility, which mandates lawyers to promote respect for the law and refrain from counseling or abetting activities aimed at defiance of the law. As to the recommendation that the penalty be reduced from a suspension of one year to a st ern warning, we find the same to be without basis. We are disturbed by the reduction made by the IBP Board of Governors of the penalty recommended by the investigating

commissioner without clearly and distinctly stating the facts and reasons on which that reduction is based. Section 12(a), Rule 139-B of the Rules of Court reads in part as follows:

SEC. 12. Review and decision by the Board of Governors . (a) Every case heard by an investigator shall be reviewed by the IBP Board of Governors upon the record and evidence transmitted to it by the Investigator with his report. The decision of the Board upon such review shall be in writing and shall clearly and distinctly state the facts and the reasons on which it is based.

We may consider the resolution of the IBP Board of Governors as a memorandum decision adopting by reference the report of the investigating commissioner. However, we look with disfavor the change in the recommended penalty without any explanation therefor. Again, we remind the IBP Board of Governors of the importance of the requirement to announce in plain terms its legal reasoning, since the requirement that its decision in disciplinary proceedings must state the facts and the reasons on which its decision is based is akin to what is required of the decisions of courts of record. [ 2 7 ] The reasons for handing down a penalty occupy no lesser station than any other portion of the ratio.

In similar cases where the respondent was found guilty of representing conflicting interests a penalty ranging from one to three years suspension was imposed. [ 2 8 ] In this case, we find that a suspension from the practice of law for one year is warranted.

WHEREFORE, respondent Atty. Nestor A. Bamba is hereby held GUILTYof violation of Rule 15.03 of Canon 15 and Rule 1.02 of Canon 1 of the Code of Professional Responsibility. He is SUSPENDED from the practice of law for a period of ONE (1) YEAR effective from receipt of this Resolution, with a warning that a similar infraction in the future shall be dealt with more severely. Let copies of this Resolution be furnished to the Office of the Bar Confidant and the Integrated Bar of the Philippines. SO ORDERED.

SECOND DIVISION FERNANDO MARTIN O. PENA, A.C. No. 7298 Complainant, [Formerly CBD Case No. 05-1565]

Present:

- versus - QUISUMBING, J., Chairperson, CARPIO, CARPIO MORALES, TINGA, and ATTY. LOLITO G. APARICIO, VELASCO, JR.,JJ. Respondent. Promulgated: June 25, 2007

x----------------------------------------------------------------------------x

RESOLUTION

TINGA, J.:

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 clients 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[2] 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)[3] claiming that Atty. Emmanuel A. Jocson, complainants 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[4] and for violation of the Notarial Law.[5]

A mandatory conference was held on 6 December 2005 but respondent failed to appear.[6] Both parties were thereafter required to submit their position papers.

The Report and Recommendation[7] 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.[8] 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.[9] Thereafter, on 18 August 2006, respondent filed with the IBP a Motion for Reconsideration (for Modification of Decision)[10] 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.[11]

Complainant thereafter filed this Petition for Review (of the Resolution of the IBP Commission on Bar Discipline)[12] 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[13] 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 complainants 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. [14]

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.[15] 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.[16]

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 Courts determination is anchored on the sui generis nature of disbarment proceedings, the reasons for the certification against forum shopping requirement, complainants subsequent compliance with the requirement, and the merit of complainants complaint against respondent.

The Court, in the case of In re Almacen,[17] 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.[18] [Emphasis supplied]

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,[19] 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.[20] 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.[21]

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.[22] 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 procedurewhich is to achieve substantial justice as expeditiously as possible.[23]

At any rate, complainants 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 respondents Motion to Dismiss the present petition.

Finally, the intrinsic merit of complainants 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 lawyers duty is not to his client but to the administration of justice; to that end, his clients success is wholly subordinate; and his conduct ought to and must always be scrupulously observant of law and ethics. [24] 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 lawyers client.[25]

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.[26]

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 respondents disbarment from the practice of law, but also a possible criminal prosecution.[28] 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.[29] 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.

Respondents assertions, however, are misleading, for it is quite obvious that respondents threat to file the cases against complainant was designed to secure some leverage to compel the latter to give in to his clients demands. It was not respondents intention to point out complainants 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 clients 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 clients 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 clients interests. Accordingly, the more appropriate penalty is reprimand.

WHEREFORE, premises considered, the petition is granted. The 26 May 2006Resolution 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

SECOND DIVISION

RURAL BANK OF CALAPE, INC. (RBCI) BOHOL, Complainant,

- versus -

ATTY. JAMES BENEDICT FLORIDO, Respondent.

A.C. No. 5736 Present: CARPIO, J., Chairperson, NACHURA, PERALTA, ABAD, and PEREZ,* JJ.

Promulgated:

June 18, 2010 x--------------------------------------------------x

DECISION

CARPIO, J.:

The Case

This is a complaint for disbarment filed by the members of the Board of Directors[1] of the Rural Bank of Calape, Inc. (RBCI) Bohol against respondent Atty.

James Benedict Florido (respondent) for acts constituting grave coercion and threats when he, as counsel for the minority stockholders of RBCI, led his clients in physically taking over the management and operation of the bank through force, violence and intimidation.

The Facts

On 18 April 2002, RBCI filed a complaint for disbarment against respondent.[2]RBCI alleged that respondent violated his oath and the Code of Professional Responsibility (Code).

According to RBCI, on 1 April 2002, respondent and his clients, Dr. Domeciano Nazareno, Dr. Remedios Relampagos, Dr. Manuel Relampagos, and Felix Rengel (Nazareno-Relampagos group), through force and intimidation, with the use of armed men, forcibly took over the management and the premises of RBCI. They also forcibly evicted Cirilo A. Garay (Garay), the bank manager, destroyed the banks vault, and installed their own staff to run the bank.

In his comment, respondent denied RBCIs allegations. Respondent explained that he acted in accordance with the authority granted upon him by the NazarenoRelampagos group, the lawfully and validly elected Board of Directors of RBCI.Respondent said he was merely effecting a lawful and valid change of management. Respondent alleged that a termination notice was sent to Garay but he refused to comply. On 1 April 2002, to ensure a smooth transition of managerial operations, respondent and the Nazareno-Relampagos group went to the bank to ask Garay to step down. However, Garay reacted violently and grappled with the security guards long firearm. Respondent then directed the security guards to prevent entry into the bank premises of individuals who had no transaction with the bank. Respondent, through the orders of the Nazareno-Relampagos group, also changed the locks of the banks vault.

Respondent added that the criminal complaint for malicious mischief filed against him by RBCI was already dismissed; while the complaint for grave coercion was ordered suspended because of the existence of a prejudicial question.Respondent said that the disbarment complaint was filed against him in retaliation for the administrative cases he filed against RBCIs counsel and the trial court judges of Bohol.

Moreover, respondent claimed that RBCI failed to present any evidence to prove their allegations. Respondent added that the affidavits attached to the complaint were never identified, affirmed, or confirmed by the affiants and that none of the documentary exhibits were originals or certified true copies.

The Ruling of the IBP

On 28 September 2005, IBP Commissioner Leland R. Villadolid, Jr. (Commissioner Villadolid, Jr.) submitted his report and declared that respondent failed to live up to the exacting standards expected of him as vanguard of law and justice.[3]Commissioner Villadolid, Jr. recommended the imposition on respondent of a penalty of suspension from the practice of law for six months to one year with a warning that the repetition of similar conduct in the future will warrant a more severe penalty.

According to Commissioner Villadolid, Jr., respondent knew or ought to have known that his clients could not just forcibly take over the management and premises of RBCI without a valid court order.Commissioner Villadolid, Jr. noted that the right to manage and gain majority control over RBCI was one of the issues pending before the trial court in Civil Case No. 6628. Commissioner Villadolid, Jr. said that respondent had no legal basis to implement the take over of RBCI and that it was a naked power grab without any semblance of legality whatsoever.

Commissioner Villadolid, Jr. added that the administrative complaint against respondent before the IBP is independent of the dismissal and suspension of the criminal cases against respondent.Commissioner Villadolid, Jr. also noted that RBCI complied with the IBP Rules of Procedure when they filed a verified complaint and submitted duly notarized affidavits. Moreover, both RBCI and respondent agreed to dispense with the mandatory conference hearing and, instead, simultaneously submit their position papers.

On 20 March 2006, the IBP Board of Governors issued Resolution No. XVII-2006120 which declared that respondent dismally failed to live up to the exacting standards of the law profession and suspended respondent from the practice of law for one year with a warning that repetition of similar conduct will warrant a more severe penalty.[4]

On 5 July 2006, respondent filed a motion for reconsideration. In its 11 December 2008 Resolution, the IBP denied respondents motion.[5]

The Ruling of the Court

We affirm the IBP Board of Governorsresolution.

The first and foremost duty of a lawyer is to maintain allegiance to the Republic of the Philippines, uphold the Constitution and obey the laws of the land.[6]Likewise, it is the lawyers duty to promote respect for the law and legal processes and to abstain from activities aimed at defiance of the law or lessening confidence in the legal system.[7]

Canon 19 of the Code provides that a lawyer shall represent his client with zeal within the bounds of the law. For this reason, Rule 15.07 of the Code requires a lawyer to impress upon his client compliance with the law and principles of

fairness. A lawyer must employ only fair and honest means to attain the lawful objectives of his client.[8] It is his duty to counsel his clients to use peaceful and lawful methods in seeking justice and refrain from doing an intentional wrong to their adversaries.[9]

We agree with Commissioner Villadolid, Jr.s conclusion:

Lawyers are indispensable instruments of justice and peace. Upon taking their professional oath, they become guardians of truth and the rule of law. Verily, when they appear before a tribunal, they act not merely as representatives of a party but, first and foremost, as officers of the court.Thus, their duty to protect their clients interests is secondary to their obligation to assist in the speedy and efficient administration of justice.While they are obliged to present every available legal remedy or defense, their fidelity to their clients must always be made within the parameters of law and ethics, never at the expense of truth, the law, and the fair administration of justice.[10]

A lawyers duty is not to his client but to the administration of justice. To that end, his clients success is wholly subordinate.His conduct ought to and must always be scrupulously observant of the law and ethics.[11] Any means, not honorable, fair and honest which is resorted to by the lawyer, even in the pursuit of his devotion to his clients cause, is condemnable and unethical.[12]

WHEREFORE, we find respondent Atty. James Benedict Florido GUILTY of violating Canon 19 and Rules 1.02 and 15.07 of the Code of Professional Responsibility. Accordingly, we SUSPENDrespondent from the practice of law for one year effective upon finality of this Decision. Let copies of this decision be furnished the Office of the Bar Confidant, to be appended to respondents personal record as attorney. Likewise, copies shall be furnished to the Integrated Bar of the Philippines and in all courts in the country for their information and guidance.

SO ORDERED

FIRST DIVISION

SPOUSES DAVID and A.C. No. 6353 MARISA WILLIAMS, Complainants, Present: PANGANIBAN, C.J., Chairperson, YNARES-SANTIAGO, - versus - AUSTRIA-MARTINEZ, CALLEJO, SR., and CHICO-NAZARIO, JJ. ATTY. RUDY T. ENRIQUEZ,Promulgated: Respondent. February 27, 2006 x--------------------------------------------------x RESOLUTION

CALLEJO, SR., J.:

Atty. Rudy T. Enriquez stands charged with unlawful, dishonest, immoral and deceitful acts in violation of the Code of Professional Responsibility and the Canons of Professional Ethics, and with conduct unbecoming an attorney. The charges are contained in the Joint Complaint-Affidavit for Disbarment[1]filed by the spouses David W. Williams and Marisa B. Williams.

It appears that respondent is the counsel of record of the plaintiffs in Civil Case No. 13443[2] pending before the Regional Trial Court, Branch 33, Dumaguete City where complainants are the defendants. According to the complainant-spouses, Marisa Williams bought the lot subject of the controversy. A Transfer Certificate of Title (TCT) was then issued in her favor, stating that she is Filipino, married to David W. Williams, an American citizen.[3] On January 8, 2004,

respondent charged her with falsification of public documents before the Office of the City Prosecutor of Dumaguete City. The complaint was docketed as I.S. No. 2004-34.[4]

The spouses Williams further alleged, thus:

21. That, in malicious violation of the rules governing the practice of law, Attorney Rudy T. Enriquez cited outdated material in his complaint-affidavit (Annex A-1) and in his comments to counter-affidavit (Annex A-2). He then knowingly applied this stale law in a perverse fashion to argue that Marisa Batacan Williams automatically lost her Filipino citizenship when she married an American, and was thus prohibited to own land in the Philippines, thereby making her guilty of falsification in the Deed she executed to buy property in Negros Oriental.

2.2. That in paragraph #1 of her counter-affidavit (Annex A-2) Marisa cites Article IV, Section 4 of the 1987 Constitution, which provides that she would not lose her citizenship when she married an American unless she renounced it in a specific act.

2.3 That, in reply, Attorney Enriquez, quotes more outdated law, declaring that her act of marrying her husband was equivalent to renouncing her citizenship. He also doggedly attempts to show that the 1987 Constitution supports his position, not Marisas (Annex A-4).[5]

Complainants pointed out that the respondent is a retired judge, who knows that the false charge (that Marisa Williams is an American) will not prevail in the end.[6]

In his Comments by Way of Motion to Dismiss,[7] respondent enumerated matters which to his mind were evidence of the acts of falsification of complainant Marisa Williams. He insisted that the complaint for disbarment was a mere tactic

to divert attention from the criminal charges against the complainants, and that the charges against him were bereft of any factual basis.

On December 1, 2004, the case was referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.[8] Forthwith, the IBP Commission on Bar Discipline scheduled the case for mandatory conference/hearing. However, only the respondent appeared. The parties were then directed to submit their verified position papers.

In their Position Paper, complainants claimed that respondent had maliciously and knowingly filed fabricated cases against them and that his acts were forms of attempted extortion. They also adopted their joint complaintaffidavit by way of incorporation, along with their other pleadings.

For his part, respondent maintained that complainant Marisa Williams was no longer a citizen of the Republic of the Philippines as a result of her marriage to David Williams.

In her Report and Recommendation dated June 10, 1995, Commissioner Rebecca Villanueva-Maala ruled that respondent was guilty of gross ignorance of the law and should be suspended for six (6) months. The IBP Commission on Bar Discipline adopted the foregoing recommendation in its Resolution No. XVII-2005114 dated October 22, 2005, with the modification that respondent be reprimanded, with a warning and advice to study each and every opinion he may give to his clients.

The Court agrees that respondent is administratively liable for his actuations. As found by the Investigating Commissioner:

There is no evidence shown by respondent that complainant Marisa Bacatan-Williams has renounced her Filipino citizenship except her Certificate of Marriage, which does not show that she has automatically acquired her husbands citizenship upon her marriage to him. The cases cited by respondent are not applicable in this case as it is clear that they refer to aliens acquiring lands in the Philippines.

The Bar has been integrated for the attainment of the following objectives: (a) elevate the standards of the legal profession, (b) improve the administration of justice, and (c) to enable the bar to discharge its public responsibility more effectively (In re: Integration of the Bar of the Philippines, 49 SCRA 22). In line with these objectives of the Integrated Bar,lawyers must keep themselves abreast of legal developments. To do this, the lawyer must walk with the dynamic movements of the law and jurisprudence. He must acquaint himself at least with the newly promulgated laws, the recent decisions of the Supreme Court and of the significant decisions of the Court of Appeals. There are other executive orders, administrative circulars, regulations and other rules promulgated by other competent authorities engaged in the administration of justice. The lawyers life is one of continuous and laborious study, otherwise, his skill and knowledge of the law and related disciplines will lag behind and become obscure due to obsoleteness (Canon 5, Code of Professional Responsibility.)[9]

As pointed out by the Investigating Commissioner, Canon 5 of the Code of Professional Responsibility requires that a lawyer be updated in the latest laws and jurisprudence.[10] Indeed, when the law is so elementary, not to know it or to act as if one does not know it constitutes gross ignorance of the law.[11] As a retired judge, respondent should have known that it is his duty to keep himself well-informed of the latest rulings of the Court on the issues and legal problems confronting a client.[12] In this case, the law he apparently misconstrued is no less than the Constitution,[13] the most basic law of the land.[14] Implicit in a lawyers mandate to protect a clients interest to the best of his/her ability and with utmost diligence is the duty to keep abreast of the law and legal developments, and participate in continuing legal education programs.[15] Thus, in championing the interest of clients and defending cases, a lawyer must not only be guided by the strict standards imposed by the lawyers oath, but should likewise espouse legally sound

arguments for clients, lest the latters cause be dismissed on a technical ground.[16] Ignorance encompasses both substantive and procedural laws.[17]

We find too harsh the recommended penalty of the Investigating Commissioner. It must be stressed that the power to disbar or suspend must be exercised with great caution. Only in a clear case of misconduct that seriously affects the standing and character of a lawyer as an officer of the Court and member of the bar will disbarment or suspension be imposed as a penalty.[18]Pursuant to the IBP Commission on Bar Disciplines Guidelines for Imposing Lawyer Sanctions,[19] and considering further that this is respondents first infraction, we find that the penalty of reprimand as recommended by the IBP Commission on Bar Discipline, will suffice.

We likewise note that in their pleadings in this case, the parties repeatedly invoked their arguments in their pending cases below. Thus, we find it unnecessary to rule over such arguments, which have yet to be determined on the merits in the courts a quo.

WHEREFORE, for gross ignorance of the law, Atty. Rudy T. Enriquez is REPRIMANDED and ADVISED to carefully study the opinions he may give to his clients. He is STERNLY WARNED that a repetition of a similar act shall be dealt with more severely. SO ORDERED

Republic of the Philippines

Supreme Court Manila

SECOND DIVISION

EMILIA R. HERNANDEZ,

A.C. No. 9387 (Formerly CBD Case No. 05-1562)

Complainant,

Present:

CARPIO, J., Chairperson, BRION, PEREZ,

- versus -

SERENO, and REYES, JJ.

Promulgated: ATTY. VENANCIO B. PADILLA,

June 20, 2012

Respondent.

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x RESOLUTION

SERENO, J.:

This is a disbarment case filed by Emilia Hernandez (complainant) against her lawyer, Atty. Venancio B. Padilla (respondent) of Padilla Padilla Bautista Law Offices, for his alleged negligence in the handling of her case. The records disclose that complainant and her husband were the respondents in an ejectment case filed against them with the Regional Trial Court of Manila (RTC). In a Decision[1] dated 28 June 2002, penned by Judge Rosmari D. Carandang (Judge Carandang), the RTC ordered that the Deed of Sale executed in favor of complainant be cancelled; and that the latter pay the complainant therein, Elisa Duigan (Duigan), attorneys fees and moral damages. Complainant and her husband filed their Notice of Appeal with the RTC. Thereafter, the Court of Appeals (CA) ordered them to file their Appellants Brief. They chose respondent to represent them in the case. On their behalf, he filed a Memorandum on Appeal instead of an Appellants Brief. Thus, Duigan filed a Motion to Dismiss the Appeal. The CA granted the Motion in a Resolution[2] dated 16 December 2003. No Motion for Reconsideration (MR) of the Resolution dismissing the appeal was filed by the couple. Complainant claims that because respondent ignored the Resolution, he acted with deceit, unfaithfulness amounting to malpractice of law.[3] Complainant and her husband failed to file an appeal, because respondent never informed them of the adverse decision. Complainant further claims that she asked respondent several times about the status of the appeal, but despite inquiries he deliberately withheld response [sic], to the damage and prejudice of the spouses.[4] The Resolution became final and executory on 8 January 2004. Complainant was informed of the Resolution sometime in July 2005, when the Sheriff of the RTC came to her house and informed her of the Resolution. On 9 September 2005, complainant filed an Affidavit of Complaint[5] with the Committee on Bar Discipline of the Integrated Bar of the Philippines (IBP), seeking

the disbarment of respondent on the following grounds: deceit, malpractice, and grave misconduct. Complainant prays for moral damages in the amount of ₱350,000. Through an Order[6] dated 12 September 2005, Director of Bar Discipline Rogelio A. Vinluan ordered respondent to submit an answer to the Complaint. In his CounterAffidavit/Answer,[7] respondent prayed for the outright dismissal of the Complaint. Respondent explained that he was not the lawyer of complainant. He averred that prior to the mandatory conference set by the IBP on 13 December 2005, he had never met complainant, because it was her husband who had personally transacted with him. According to respondent, the husband despondently pleaded to me to prepare a Memorandum on Appeal because according to him the period given by the CA was to lapse within two or three days.[8] Thus, respondent claims that he filed a Memorandum on Appeal because he honestly believed that it is this pleading which was required.[9] Before filing the Memorandum, respondent advised complainants husband to settle the case. The latter allegedly gestured approval of the advice.[10] After the husband of complainant picked up the Memorandum for filing, respondent never saw or heard from him again and thus assumed that the husband heeded his advice and settled the case. When respondent received an Order from the CA requiring him to file a comment on the Motion to Dismiss filed by Duigan, he instructed his office staff to contact Mr. Hernandez thru available means of communication, but to no avail.[11] Thus, when complainants husband went to the office of respondent to tell the latter that the Sheriff of the RTC had informed complainant of the CAs Resolution dismissing the case, respondent was just as surprised. The lawyer exclaimed, KALA KO BA NAKIPAG AREGLO NA KAYO.[12] In his 5 January 2009 Report,[13] IBP Investigating Commissioner Leland R. Villadolid, Jr. found that respondent violated Canons 5, 17, and 18 of the Code of Professional Responsibility (the Code). He recommended that respondent be suspended from practicing law from 3 to 6 months.

The board of governors of the IBP issued Resolution No. XIX-2010-452 on 28 August 2010. Therein, they resolved to adopt and approve the Report and Recommendation of the Investigating Commissioner. Respondent was suspended from the practice of law for six months. Respondent filed a Motion for Reconsideration.[14] He prayed for the relaxation of the application of the Canons of the Code. On 14 January 2012, the IBP board of governors passed Resolution No. XX-2012-17[15] partly granting his Motion and reducing the penalty imposed to one-month suspension from the practice of law. Pursuant to Rule 139-B of the Rules of Court, acting Director for Bar Discipline Dennis A.B. Funa, through a letter[16]addressed to then Chief Justice Renato C. Corona, transmitted the documents pertaining to the disbarment Complaint against respondent. We adopt the factual findings of the board of governors of the IBP. This Court, however, disagrees with its Decision to reduce the penalty to one-month suspension. We thus affirm the six-month suspension the Board originally imposed in its 28 August 2010 Resolution. Respondent insists that he had never met complainant prior to the mandatory conference set for the disbarment Complaint she filed against him. However, a perusal of the Memorandum of Appeal filed in the appellate court revealed that he had signed as counsel for the defendant-appellants therein, including complainant and her husband.[17] The pleading starts with the following sentence: DEFENDANT[S]-APPELLANTS, by counsel, unto this Honorable Court submit the Memorandum and further allege that: x x x.[18] Nowhere does the document say that it was filed only on behalf of complainants husband. It is further claimed by respondent that the relation created between him and complainants husband cannot be treated as a client-lawyer relationship, viz: It is no more than a client needing a legal document and had it prepared by a lawyer for a fee. Under the factual milieu and circumstances, it could not be said that a client entrusted to a lawyer handling and prosecution of his case that calls for the strict application of the Code; x x x[19]

As proof that none of them ever intended to enter into a lawyer-client relationship, he also alleges that complainants husband never contacted him after the filing of the Memorandum of Appeal. According to respondent, this behavior was very unusual if he really believed that he engaged the formers services.[20] Complainant pointed out in her Reply[21]that respondent was her lawyer, because he accepted her case and an acceptance fee in the amount of ₱7,000. According to respondent, however, [C]ontrary to the complainants claim that he charged ₱7,000 as acceptance fee, the fee was only for the preparation of the pleading which is even low for a Memorandum of Appeal: x x x.[22] Acceptance of money from a client establishes an attorney-client relationship and gives rise to the duty of fidelity to the clients cause.[23] Once a lawyer agrees to handle a case, it is that lawyers duty to serve the client with competence and diligence.[24] Respondent has failed to fulfill this duty. According to respondent, he merely drafted the pleading that complainants husband asked from him. Respondent also claims that he filed a Memorandum of Appeal, because he honestly believed that this was the pleading required, based on what complainants husband said. The IBP Investigating Commissioners observation on this matter, in the 5 January 2009 Report, is correct. Regardless of the particular pleading his client may have believed to be necessary, it was respondents duty to know the proper pleading to be filed in appeals from RTC decisions, viz: Having seen the Decision dated 18 June 2002 of the trial court, respondent should have known that the mode of appeal to the Court of Appeals for said Decision is by ordinary appeal under Section 2(a) Rule 41 of the1997 Revised Rules of Civil Procedure. In all such cases, Rule 44 of the said Rules applies.[25]

When the RTC ruled against complainant and her husband, they filed a Notice of Appeal. Consequently, what should apply is the rule on ordinary appealed cases or Rule 44 of the Rules on Civil Procedure. Rule 44 requires that the appellants brief

be filed after the records of the case have been elevated to the CA. Respondent, as a litigator, was expected to know this procedure. Canon 5 of the Code reads: CANON 5 A lawyer shall keep abreast of legal developments, participate in continuing legal education programs, support efforts to achieve high standards in law schools as well as in the practical training of law students and assist in disseminating information regarding the law and jurisprudence.

The obligations of lawyers as a consequence of their Canon 5 duty have been expounded in Dulalia, Jr. v. Cruz,[26]to wit: It must be emphasized that the primary duty of lawyers is to obey the laws of the land and promote respect for the law and legal processes. They are expected to be in the forefront in the observance and maintenance of the rule of law. This duty carries with it the obligation to be well-informed of the existing laws and to keep abreast with legal developments, recent enactments and jurisprudence. It is imperative that they be conversant with basic legal principles. Unless they faithfully comply with such duty, they may not be able to discharge competently and diligently their obligations as members of the bar. Worse, they may become susceptible to committing mistakes.

In his MR, respondent begged for the consideration of the IBP, claiming that the reason for his failure to file the proper pleading was that he did not have enough time to acquaint himself thoroughly with the factual milieu of the case. The IBP reconsidered and thereafter significantly reduced the penalty originally imposed. Respondents plea for leniency should not have been granted. The supposed lack of time given to respondent to acquaint himself with the facts of the case does not excuse his negligence. Rule 18.02 of the Code provides that a lawyer shall not handle any legal matter without adequate preparation. While it is true that respondent was not complainants lawyer from the trial to the appellate court stage, this fact did not excuse him from his duty to diligently study a case he had agreed to handle. If he felt he did not have enough time to study the pertinent matters involved, as he was approached by complainants husband only two days before the expiration of the period for filing the Appellants Brief, respondent should have filed a motion for

extension of time to file the proper pleading instead of whatever pleading he could come up with, just to beat the deadline set by the Court of Appeals.[27] Moreover, respondent does not deny that he was given notice of the fact that he filed the wrong pleading. However, instead of explaining his side by filing a comment, as ordered by the appellate court, he chose to ignore the CAs Order. He claims that he was under the presumption that complainant and her husband had already settled the case, because he had not heard from the husband since the filing of the latters Memorandum of Appeal. This explanation does not excuse respondents actions. First of all, there were several remedies that respondent could have availed himself of, from the moment he received the Notice from the CA to the moment he received the disbarment Complaint filed against him. But because of his negligence, he chose to sit on the case and do nothing. Second, respondent, as counsel, had the duty to inform his clients of the status of their case. His failure to do so amounted to a violation of Rule 18.04 of the Code, which reads: 18.04 - A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the clients request for information.

If it were true that all attempts to contact his client proved futile, the least respondent could have done was to inform the CA by filing a Notice of Withdrawal of Appearance as counsel. He could have thus explained why he was no longer the counsel of complainant and her husband in the case and informed the court that he could no longer contact them.[28] His failure to take this measure proves his negligence. Lastly, the failure of respondent to file the proper pleading and a comment on Duigans Motion to Dismiss is negligence on his part. Under 18.03 of the Code, a lawyer is liable for negligence in handling the clients case, viz:

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

Lawyers should not neglect legal matters entrusted to them, otherwise their negligence in fulfilling their duty would render them liable for disciplinary action.[29] Respondent has failed to live up to his duties as a lawyer. When a lawyer violates his duties to his client, he engages in unethical and unprofessional conduct for which he should be held accountable.[30] WHEREFORE, respondent Atty. Venancio Padilla is found guilty of violating Rules 18.02, 18.03, 18.04, as well as Canon 5 of the Code of Professional Responsibility. Hence, he is SUSPENDED from the practice of law for SIX (6) MONTHS and STERNLY WARNED that a repetition of the same or a similar offense will be dealt with more severely. Let copies of this Resolution be entered into the personal records of respondent as a member of the bar and furnished to the Bar Confidant, the Integrated Bar of the Philippines, and the Court Administrator for circulation to all courts of the country for their information and guidance. No costs.

SO ORDERED

FIRST DIVISION JUAN DE LA CRUZ A.M. No. RTJ-07-2043 (CONCERNED CITIZEN OF LEGAZPI CITY), Complainant, Present: PUNO, C.J., Chairperson, SANDOVAL-GUTIERREZ, - v e r s u s - CORONA, AZCUNA and GARCIA, JJ.

JUDGE RUBEN B. CARRETAS, Presiding Judge, Regional Trial Court of Legazpi City, Branch 9, Respondent. Promulgated:

September 5, 2007

x---------------------------------------------------x

RESOLUTION

CORONA, J.:

This administrative case stems from an anonymous complaint by Juan de la Cruz, a concerned citizen of Legazpi City, against respondent Judge Ruben B. Carretas, presiding judge of the Regional Trial Court (RTC) of Legazpi City, Branch 9. The letter-complaint[1] read:

The Honorable Justices of the Supreme Court and The Honorable Court Administrator Supreme Court, Manila

Sir and Madam,

Kami po ay sumulat sa inyo dahil po sa reklamo sa masamang ugali at asal ni Judge Ruben Car[r]etas ng RTC, Branch 9, Legazpi City.

Siya po ay isang mayabang na Judge at mahilig mang insulto sa pamamagitan ng side comments sa mga testigo, abogado at fiscal, parang siya na lang ang may alam sa batas. Bilang Judge siya na po ang nagdirect, at cross-examine sa mga testigo.

Dahil sa kanyang ginagawa napapahiya ang mga testigo, abogado at fiscal sa harap ng publiko. Nawawala din po ang respeto ng publiko sa justice system.

Kami po ay umaasa at nanalangin sa madaliang aksyon ng inyong opisina para malutas ang problemang ito.

Salamat at mabuhay po kayong lahat.

Ang gumagalang, (Sgd. Juan de la Cruz) Concern[ed] citizen of Legazpi [City]

In his comment,[2] respondent judge surmised that the complaint was initiated by a lawyer whose petition for declaration of nullity of marriage was not granted. He denied the accusation and claimed that he had not insulted anyone. He then narrated that, in his first few months in office, he experienced the following exasperating and somewhat amusing incidents: a lawyer insisting on further examining a witness he had already subjected to re-cross examination; a prosecutor proceeding with the presentation of evidence when the accused had not yet been arraigned; a lawyer appearing for an absent counsel de parte and manifesting that he was appearing in corroboration with the latter; lawyers appearing without observing the proper dress code; a lawyer offering the testimony of his witness to collaborate the testimony of another witness; a lawyer manifesting that he was ready for trial but turning out to be unprepared with his documentary evidence, prompting the court to call a recess; a case for unjust vexation committed against a minor being raffled to his sala when the records showed that the victim was waylaid, boxed and dragged to a forested area where the accused touched her private part and mashed her breasts; a case being filed for kidnapping and serious illegal detention only despite the fact that the girl was raped while in captivity. Respondent judge stated that he never encountered these mistakes in all his years of law practice in Manila. Thus, he was shocked because he thought that these things happened only in anecdotes.

Respondent judge observed that due to their familiarity with each other, lawyers appearing in his sala hardly objected even to obviously objectionable questions. In such instances, he called the attention of counsels because, to his mind, they were making a moro-moro[3]out of the proceedings.

Respondent judge also stated that, while he may have used harsh word sometimes, they were made out of exasperation and with the intention merely to right the wrong committed in his presence, not to insult anyone. Nonetheless, he apologized to those who may have been offended by his remarks.

In connection with the complaint, Judge Romeo S. Daas, executive judge of the RTC of Legazpi City, conducted a discreet investigation.[4] He interviewed lawyers who appeared in the sala of respondent judge. He requested them to submit their respective written comments on the decorum of respondent judge when holding trial. Among these comments were the following: 1. Atty. Mariano B. Baranda, Jr.

Respondent judge should avoid making embarrassing, insulting and abrasive remarks. He should also limit himself to asking clarificatory questions.[5]

2. Atty. Expedito P. Nebres If not in open court respondent judge is kind, courteous and respectful. However, in open court he is arrogant and boastful. He has a bad habit in making embarrassing or insulting remarks when presiding over cases. Most of the time, he was the one conducting direct and cross-examination of witnesses. He used to scold, harass and embarrass witnesses, litigants, lawyers, prosecutors and PAO[6] lawyers for just a slight mistake in procedure.[7]

3. Atty. Alexis C. Albao

In the course of presentation of evidence for his client, he was insulted and subjected to sarcastic remarks by respondent judge, not once but for several occasions. This traumatized him and made him avoid reading the transcript of stenographic notes of the said hearing until now. In one occasion, respondent judge proceeded to cut short the proceedings. When he manifested that he would cross-examine the defendant, respondent judge stood from his seat and in a sarcastic manner looked backward manifesting that he was not interested or not listening to the cross-examination. Thus, he was discouraged from proceeding with his cross-examination. Most of the time, respondent judge would unduly intervene in the presentation of evidence and asked more questions than counsel. Respondent judge showed apathy to those who were subjected to his insults. He insisted that others submit to his way of doing things. He showed inflexibility to minor mistakes.[8]

4. Atty. Ricardo V. de Jesus

While he was in the process of conducting direct examination, respondent judge instructed him to ask questions which respondent judge thought to be material. When he was through with his direct examination, respondent judge asked him in open court how long he had been in private practice. He replied that he had been practicing for only a period of one and a half (1) years. Respondent judge then told him to prepare supposed direct questions and expected answers. He felt embarrassed.[9]

On October 6, 2005, the members of the Provincial Prosecution Office of Albay held a meeting to discuss the matter of assigning a public prosecutor to the sala of respondent judge. During the meeting, the prosecutors raised their concern about the behavior of respondent judge. Provincial prosecutor Benigno L. Tolosa furnished Judge Daas with a copy of the minutes of the meeting.[10] The relevant portions of the minutes[11] were:

II.

DISCUSSION The Provincial Prosecutor informed the group about the purpose of the meeting. He said that the prosecutor assigned in RTC Branch 9, Prosecutor Maria Miranda-Gojar will soon be transferring to the Office of the Regional State Prosecutor. He asked suggestions from the group on how to go about the matter of assigning a prosecutor in Branch 9 considering that all prosecutors have their own court assignment and considering further that the Presiding Judge of said Branch has a behavioral and attitudinal problem.

Considering that the matter to be discussed involves the problem with the Presiding Judge, the Provincial Prosecutor requested those prosecutors [present] to share their experiences in the court with the Presiding Judge.

Prosecutor [Eduardo B.] Quinzon remarked that the judge has a sudden burst of temper and wild moods, insulting and humiliating lawyers in front of their clients even in the presence of other people.

Prosecutor Gojar added that the Presiding Judge has a volatile temper and is fond of insulting and humiliating witnesses and also lawyers. She also said that during arraignment or trial of cases, he would even call her attention and would insult the prosecutor who made the Information and Resolution of the case and even the Chief who approved the same.

Prosecutor [Maria Teresa A.] Mahiwo added that she observed one hearing [where] the Presiding Judge [scolded] the two private lawyers who [were] much older than him. She said that being assigned in Branch 9 will not be good for the health of any prosecutor.

III.

RECOMMENDATION/AGREEMENT

Prosecutor [Elmer M.] Lanuzo opined that because the judge is temperamental, he should be given a fiscal who is not temperamental.

It was resolved by the group that no prosecutor will be assigned at RTC Branch 9 considering that all prosecutors have their own court assignment.

It was also agreed that the Presiding Judge can request from the Department of Justice a prosecutor who would attend to the cases in his sala.[12]

Judge Daas also received a letter[13]from city prosecutor Palmarin E. Rubio of Legazpi City. City prosecutor Rubio stated that the prosecutor assigned to the sala of respondent judge did not want to comment on the conduct of respondent judge. He suggested that members of an audit team from this Court be made to observe the proceedings in Branch 9 to see and feel the tension[-]charged atmosphere in the sala once the trial started.[14]

To his report, Judge Daas attached copies of the comments of the lawyers he interviewed, the letter of provincial prosecutor Tolosa enclosing the minutes of the meeting of the public prosecutors in Albay and the letter of city prosecutor Rubio.[15] He concluded that the charges against respondent judge were true. However, he refrained from recommending any definite action against him and left the matter to the sound discretion of the Office of the Court Administrator (OCA).[16]

In its report,[17] the OCA adopted the findings of Judge Daas and made the following recommendation:

RECOMMENDATION: Respectfully submitted for the consideration of the Honorable Court is our recommendation that respondent Judge Ruben B. Carretas of the Regional Trial Court, Branch 9, Legazpi City be ADVISED to observe proper judicial decorum and to conscientiously abide by the mandates of the New Code of Judicial Conduct and the Canons of Judicial Ethics in the exercise of his official functions.[18]

We disagree. Respondent judge deserves more than mere advice.

Respondent judge should be reminded of Sections 1 and 2, Canon 2 and Section 1, Canon 4 of the New Code of Judicial Conduct for the Philippine Judiciary:[19] CANON 2 INTEGRITY

Integrity is essential not only in the proper discharge of the judicial office but also to the personal demeanor of judges.

SEC. 1. Judges shall ensure that not only is their conduct above reproach, but that it is perceived to be so in view of a reasonable observer.

SEC. 2. The behavior and conduct of judges must reaffirm the peoples faith in the integrity of the judiciary. Justice must not merely be done but must also be seen to be done. xxx xxx xxx

CANON 4

PROPRIETY

Propriety and the appearance of propriety are essential to the performance of all the activities of a judge.

SEC. 1. Judges shall avoid impropriety and the appearance of impropriety in all of their activities.

A judge should possess the virtue of gravitas. He should be learned in the law, dignified in demeanor, refined in speech and virtuous in character. Besides having the requisite learning in the law, he must exhibit that hallmark judicial temperament of utmost sobriety and self-restraint.[20] In this connection, he should be considerate, courteous and civil to all persons who come to his court.[21]A judge who is inconsiderate, discourteous or uncivil to lawyers, litigants or witnesses who appear in his sala commits an impropriety and fails in his duty to reaffirm the peoples faith in the judiciary. He also violates Section 6, Canon 6 of the New Code of Judicial Conduct for the Philippine Judiciary which provides:

SEC. 6. Judges shall maintain order and decorum in all proceedings before the court and be patient, dignified and courteous in relation to litigants, witnesses, lawyers and others with whom the judge deals in an official capacity. Judges shall require similar

conduct of legal representatives, court staff and others subject to their influence, direction or control.[22] (emphasis supplied)

It is reprehensible for a judge to humiliate a lawyer,[23] litigant or witness. The act betrays lack of patience, prudence and restraint.[24] Thus, a judge must at all times be temperate in his language.[25] He must choose his words, written or spoken, with utmost care and sufficient control. The wise and just man is esteemed for his discernment. Pleasing speech increases his persuasiveness.[26]

Equanimity and judiciousness should be the constant marks of a dispenser of justice.[27] A judge should always keep his passion guarded. He can never allow it to run loose and overcome his reason. He descends to the level of a sharp-tongued, ill-mannered petty tyrant when he utters harsh words, snide remarks or sarcastic comments. As a result, he degrades the judicial office and erodes public confidence in the judiciary.

Against this backdrop, respondent judge indeed appears arrogant and boastful not only in the eyes of the anonymous complainant but also to the lawyers who practice in his sala. He revealed a hint of arrogance in his comment when he professed exasperation over minor procedural mistakes[28] or even negligible lapses (such as the confusion in the use of collaborate and corroborate). He also displayed a condescending attitude toward lawyers in the provinces when he implied that they were inferior to lawyers from Manila. As a judge, he should ensure that his conduct is always above reproach and perceived to be so by a reasonable observer. He must never show conceit or even an appearance thereof, or any kind of impropriety.

The dispensation of justice is a joint responsibility of the judge and the lawyer.[29] A sense of shared responsibility which is a crucial factor in the administration of justice is expected of them.[30] They should co-exist in a spirit of cooperation and mutual respect, not animosity and derision. Respondent judge antagonized the lawyers (private practitioners, public attorneys and public prosecutors alike) appearing in his sala by his perceived arrogance and insulting remarks. Consequently, he impaired the administration of justice.

Respondent judge unduly intervened in the presentation of evidence. He asked more questions than counsel and conducted direct and cross-examination of witnesses. In so doing, he contravened Rule 3.06 of the Code of Judicial Conduct and Canon 14 of the Canons of Judicial Ethics:[31]

RULE 3.06 While a judge may, to promote justice, prevent waste of time or clear up some obscurity, properly intervene in the presentation of evidence during the trial, it should be borne in mind that undue interference may prevent the proper presentation of the cause or the ascertainment of truth.

∞∞∞

14. Interference in conduct of trial

While a judge may properly intervene in a trial of a case to promote expedition and prevent unnecessary waste of time, or to clear up some obscurity, nevertheless, he should bear in mind that his undue interference, impatience, or participation in the

examination of witnesses, or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of trial, may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto.

Conversation between the judge and counsel in court is often necessary, but the judge should be studious to avoid controversies which are apt to obscure the merits of the dispute between litigants and lead to its unjust disposition. In addressing counsel, litigants or witnesses, he should avoid a controversial tone.

He should avoid interruptions of counsel in their arguments except to clarify his mind as to their positions, and he should not be tempted to an unnecessary display of learning or a premature judgment.

A judge may properly intervene in the presentation of evidence to expedite and prevent unnecessary waste of time and clarify obscure and incomplete details in the course of the testimony of the witness or thereafter.[32] Questions designed to clarify points and to elicit additional relevant evidence are not improper.[33]But the judge should limit himself to asking clarificatory questions and the power should be sparingly and judiciously used. The rule is that the court should stay out of it as much as possible, neither interfering nor intervening in the conduct of the trial.[34] A judge must always maintain cold neutrality and impartiality for he is a magistrate, not an advocate.[35]

In fine, the over-all conduct of respondent judge has been unbecoming of a magistrate. It is classified as a light charge[36] for which a fine of not less than P1,000 but not exceeding P10,000 may be imposed.[37]

Pursuant to A.M. No. 02-9-02-SC,[38] this administrative case against respondent judge shall also be considered as a disciplinary proceeding against him as a member of the bar. Violation of the fundamental tenets of judicial conduct embodied in the New Code of Judicial Conduct for the Philippine Judiciary, the Code of Judicial Conduct and the Canons of Judicial Ethics constitutes a breach of Canons 1[39] and 11[40] of the Code of Professional Responsibility. Certainly, a judge who falls short of the ethics of the judicial office tends to diminish the peoples respect for the law and legal processes. He also fails to observe and maintain the esteem due to the courts and to judicial officers.

Respondent judge also transgressed Canon 8[41] and Rule 8.01[42] of the Code of Professional Responsibility when he humiliated, insulted or embarrassed lawyers appearing in his sala. Instead of establishing a cordial and collaborative atmosphere with lawyers, respondent judge alienated them and effectively disregarded their significant role in the administration of justice.

Accordingly, respondent Judge Ruben B. Carretas is hereby found GUILTY of conduct unbecoming of a judge. In particular, he violated Sections 1 and 2, Canon 2, Section 1, Canon 4 and Section 6, Canon 6 of the New Code of Judicial Conduct for the Philippine Judiciary, Rule 3.06 of the Code of Judicial Conduct and Canon 14 of the Canons of Judicial Ethics. He is FINED in the amount of P7,500.

Respondent Judge Ruben B. Carretas is also hereby found GUILTY of violating Canons 1, 8 and 11 and Rule 8.01 of the Code of Professional Responsibility for which he is FINED in the amount of P7,500.

Judge Carretas is further STERNLY WARNED that the commission of the same or similar acts in the future shall be dealt with more severely.

Let a copy of this resolution be attached to the personal records of respondent judge.

SO ORDERED

Republic of the Philippines SUPREME COURT Baguio THIRD DIVISION A.C. No. 6903

April 16, 2012

SUZETTE DEL MUNDO, Complainant, vs. ATTY. ARNEL C. CAPISTRANO, Respondent. DECISION PERLAS-BERNABE, J.: Before the Court is an administrative complaint1for disbarment filed by complainant Suzette Del Mundo (Suzette) charging respondent Atty. Arnel C. Capistrano (Atty. Capistrano) of violating the Code of Professional Responsibility. The Facts On January 8, 2005, Suzette and her friend Ricky S. Tuparan (Tuparan) engaged the legal services of Atty. Capistrano to handle the judicial declaration of nullity of their respective marriages allegedly for a fee of PhP140,000.00 each. On the same date, a Special Retainer Agreement2 was entered into by and between Suzette and Atty. Capistrano which required an acceptance fee of PhP30,000.00, appearance fee of PhP2,500.00 per hearing and another PhP2,500.00 per pleading. In addition, Atty. Capistrano allegedly advised her to prepare amounts for the following expenses: PhP11,000.00 Filing fee PhP5,000.00 Summons PhP15,000.00 Fiscal PhP30,000.00 Psychiatrist PhP15,000.00 Commissioner In accordance with their agreement, Suzette gave Atty. Capistrano the total amount of PhP78,500.00, to wit: January 8, 2005 PhP30,000.00 Acceptance fee January 15, 2005 PhP11,000.00 Filing fee February 3, 2005 PhP5,000.00 Filing fee May 4, 2005

PhP2,500.00 Filing fee

June 8, 2005

PhP30,000.00 Filing fee

For every payment that Suzette made, she would inquire from Atty. Capistrano on the status of her case. In response, the latter made her believe that the two cases were already filed before the Regional Trial Court of Malabon City and awaiting notice of hearing. Sometime in July 2005, when she could hardly reach Atty. Capistrano, she verified her case from the Clerk of Court of Malabon and discovered that while the case of Tuparan had been filed on January 27, 2005, no petition has yet been filed for her. Hence, Suzette called for a conference, which was set on July 28, 2005, where she demanded the refund of the total amount of PhP78,500.00, but Atty. Capistrano instead offered to return the amount of PhP63,000.00 on staggered basis claiming to have incurred expenses in the filing of Tuparan’s case, to which she agreed. On the same occasion, Atty. Capistrano handed to her copies of her unfiled petition,3 Tuparan’s petition4and his Withdrawal of Appearance5 in Tuparan’s case with instructions to file them in court, as well as a list6 containing the expenses he incurred and the schedule of payment of the amount of PhP63,000.00, as follows: PhP20,000.00 August 15, 2005 PhP20,000.00 August 29, 2005 PhP23,000.00 September 15, 2005 However, Atty. Capistrano only returned the amount of PhP5,000.00 on August 15, 2005 and thereafter, refused to communicate with her, prompting the institution of this administrative complaint on September 7, 2005. In his Comment/Answer7 dated November 14, 2005, Atty. Capistrano acknowledged receipt of the amount of PhP78,500.00 from Suzette and his undertaking to return the agreed sum of PhP63,000.00. He also admitted responsibility for his failure to file Suzette’s petition and cited as justification his heavy workload and busy schedule as then City Legal Officer of Manila and lack of available funds to immediately refund the money received. In the Resolution8 dated January 18, 2006, the Court resolved to refer the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. The Action and Recommendation of the IBP For failure of respondent Atty. Capistrano to appear at the mandatory conference set by Commissioner Lolita A. Quisumbing of the IBP Commission on Bar Discipline (IBP-CBD), the conference was terminated without any admissions and stipulations of facts and the parties were ordered to file their respective position papers to which only Atty. Capistrano complied. In the Report and Recommendation9 dated April 11, 2007, the IBP-CBD, through Commissioner Quisumbing, found that Atty. Capistrano had neglected his client’s interest by his failure to inform Suzette of the status of her case and to file the agreed petition for declaration of nullity of marriage. It also concluded that his inability to refund the amount he had promised Suzette showed deficiency in his moral character, honesty, probity and good demeanor. Hence, he was held guilty of violating Rule 18.03, and Rule 18.04, Canon 18 of the Code of Professional Responsibility and recommended the penalty of suspension for two years from the practice of law.

On September 19, 2007, the IBP Board of Governors adopted and approved the report and recommendation of Commissioner Quisumbing through Resolution No. XVIII-2007-9810 with modification ordering the return of the sum of PhP140,000.00 attorney’s fees to Suzette. However, upon Atty. Capistrano’s timely motion for reconsideration, the IBP Board of Governors passed Resolution No. XIX-2011-26311 on May 14, 2011 reducing the penalty of suspension from two years to one year, to wit: RESOLVED to PARTIALLY GRANT Respondent’s Motion for Reconsideration, and unanimously MODIFY as it is hereby MODIFIED Resolution No. XVIII-2007-98 dated 19 September 2007 and REDUCED the penalty against Atty. Arnel C. Capistrano to SUSPENSION from the practice of law for one (1) year and Ordered to Return the amount of One Hundred Forty Thousand Pesos (P140,000.00) to complainant with thirty (30) days from receipt of notice. The Issue The sole issue before the Court is whether Atty. Arnel C. Capistrano violated the Code of Professional Responsibility. The Ruling of the Court After a careful perusal of the records, the Court concurs with the findings and recommendation of the IBP-CBD but takes exception to the amount of PhP140,000.00 recommended to be returned to Suzette. Indisputably, Atty. Capistrano committed acts in violation of his sworn duty as a member of the bar. In his Manifestation and Petition for Review,12 he himself admitted liability for his failure to act on Suzette’s case as well as to account and return the funds she entrusted to him. He only pleaded for the mitigation of his penalty citing the lack of intention to breach his lawyer’s oath; that this is his first offense; and that his profession is the only means of his and his family’s livelihood. He also prayed that the adjudged amount of PhP140,000.00 be reduced to PhP73,500.00 representing the amount of PhP78,500.00 he received less his payment of the sum of PhP5,000.00. Consequently, Commissioner Quisumbing and the IBP-CBD Board of Governors correctly recommended the appropriate penalty of one year suspension from the practice of law for violating the pertinent provisions of the Canons of Professional Responsibility, thus: CANON 16 – A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS POSSESSION. RULE 16.01 – A lawyer shall account for all money or property collected or received for or from the client. RULE 16.02 – A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him. xxx CANON 18 – A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE. xxx

RULE 18.03 – A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable. RULE 18.04 – A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the client’s request for information. Indeed, when a lawyer takes a client’s cause, he covenants that he will exercise due diligence in protecting the latter’s rights. Failure to exercise that degree of vigilance and attention expected of a good father of a family makes the lawyer unworthy of the trust reposed on him by his client and makes him answerable not just to his client but also to the legal profession, the courts and society.13 His workload does not justify neglect in handling one’s case because it is settled that a lawyer must only accept cases as much as he can efficiently handle.14 Moreover, a lawyer is obliged to hold in trust money of his client that may come to his possession. As trustee of such funds, he is bound to keep them separate and apart from his own. Money entrusted to a lawyer for a specific purpose such as for the filing and processing of a case if not utilized, must be returned immediately upon demand. Failure to return gives rise to a presumption that he has misappropriated it in violation of the trust reposed on him. And the conversion of funds entrusted to him constitutes gross violation of professional ethics and betrayal of public confidence in the legal profession.15 To stress, the practice of law is a privilege given to lawyers who meet the high standards of legal proficiency and morality, including honesty, integrity and fair dealing. They must perform their fourfold duty to society, the legal profession, the courts and their clients, in accordance with the values and norms of the legal profession as embodied in the Code of Professional Responsibility.16 Falling short of this standard, the Court will not hesitate to discipline an erring lawyer by imposing an appropriate penalty based on the exercise of sound judicial discretion in consideration of the surrounding facts.17 With the foregoing disquisition and Atty. Capistrano’s admission of his fault and negligence, the Court finds the penalty of one year suspension from the practice of law, as recommended by the IBP-CBD, sufficient sanction for his violation. However, the Court finds proper to modify the amount to be returned to Suzette from PhP140,000.00 to PhP73,500.00. WHEREFORE, respondent Atty. Arnel C. Capistrano, having clearly violated Canons 16 and 18 of the Code of Professional Responsibility, is SUSPENDED from the practice of law for one year with a stern warning that a repetition of the same or similar acts shall be dealt with more severely. He is ORDERED to return to Suzette Del Mundo the full amount of PhP73,500.00 within 30 days from notice hereof and DIRECTED to submit to the Court proof of such payment. Let copies of this Decision be entered in the personal record of respondent as a member of the Philippine Bar and furnished the Office of the Bar Confidant, the Integrated Bar of the Philippines and the Court Administrator for circulation to all courts in the country. SO ORDERED.

FIRST DIVISION ROLANDO SAA, G.R. No. 132826 Petitioner, Present:

PUNO, C.J., Chairperson, CARPIO, - v e r s u s - CORONA, LEONARDO-DE CASTRO and BERSAMIN, JJ.

INTEGRATED BAR OF THE PHILIPPINES, COMMISSION ON BAR DISCIPLINE, BOARD OF GOVERNORS, PASIG CITY and ATTY. FREDDIE A. VENIDA, Respondents. Promulgated: September 3, 2009

x---------------------------------------------------x

RESOLUTION CORONA, J.:

Petitioner Rolanda Saa filed a complaint for disbarment against respondent Atty. Freddie A. Venida on December 27, 1991 in this Court. In his complaint, Saa stated that Atty. Venidas act of filing two cases[1] against him was oppressive and constituted unethical practice.[2]

In a resolution dated February 17, 1992,[3] Atty. Venida was required to comment on the complaint against him. In his belated and partial compliance[4] with the February 17, 1992 resolution, Atty. Venida averred that Saa did not specifically allege his supposed infractions. He asked to be furnished a copy of the complaint. He also prayed for the dismissal of the complaint.

Despite receipt of a copy of the complaint,[5] Atty. Venida still did not file his complete comment within 10 days as required in the February 17, 1992 resolution. Consequently, we issued the June 14, 1995 resolution[6] requiring Atty. Venida to show cause why he should not be disciplinarily dealt with or held in contempt for failure to comply with the February 17, 1992 resolution.

Finally, Atty. Venida filed his full comment[7] on September 4, 1995 which, without doubt, was a mere reiteration of his partial comment. Atty. Venida also added that he was merely performing his duty as counsel of Saas adversaries.[8] The matter was thereafter referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. In a report dated August 14, 1997, Commissioner George S. Briones recommended the dismissal of the

complaint for lack of merit.[9] It found no evidence that the two cases filed by Atty. Venida against Saa were acts of oppression or unethical practice.[10]

The Board of Governors of the IBP resolved to adopt and approve the investigating commissioners report and dismissed the complaint.[11] Saa filed a motion for reconsideration but was denied.[12]

Saa now questions the resolution of the IBP in this petition for certiorari.[13] He ascribes grave abuse of discretion to the IBP when it adopted and affirmed the report of the investigating commissioner dismissing his complaint. According to him, the investigating commissioners report did not at all mention the dismissal of OMB 1-90-1118 and A.C. P-90-513, even if the existence of both cases was admitted by the parties. The dismissal of his complaint for disbarment was therefore grounded entirely on speculations, surmises and conjectures.

We disagree.

Grave abuse of discretion refers to a capricious, whimsical, arbitrary or despotic exercise of judgment by reason of passion or personal hostility as is equivalent to lack of jurisdiction.[14] It must be so patent and gross as to amount to an evasion or a virtual refusal to perform the duty enjoined or to act in contemplation of law.[15] A decision is not deemed tainted with grave abuse of discretion simply because a party affected disagrees with it.

There was no grave abuse of discretion in this case. There was in fact a dearth of evidence showing oppressive or unethical behavior on the part of Atty. Venida. Without convincing proof that Atty. Venida was motivated by a desire to file baseless legal actions, the findings of the IBP stand.

Nonetheless, we strongly disapprove of Atty. Venidas blatant refusal to comply with various court directives. As a lawyer, he had the responsibility to follow legal orders and processes.[16] Yet, he disregarded this very important canon of legal ethics when he filed only a partial comment on January 26, 1993 or 11 months after being directed to do so in the February 17, 1992 resolution. Worse, he filed his complete comment only on June 14, 1995 or a little over three years after due date. In both instances, he managed to delay the resolution of the case, a clear violation of Canon 12[17] and Rules 1.03[18] and 12.04[19] of the Code of Professional Responsibility.

Yet again, Atty. Venida failed to file a memorandum within the period required in our May 17, 2004 resolution.[20]Despite the 30-day deadline to file his memorandum,[21] he still did not comply. As if taunting authority, he continually ignored our directives for him to show cause and comply with the May 17, 2004 resolution.[22]

Atty. Venida apologized for the late filing of both his partial and full comments. But tried to exculpate himself by saying he inadvertently misplaced the complaint and had a heavy workload (for his partial comment). He even had the temerity to blame a strong typhoon for the loss of all his files, the complaint

included (for his full comment). His excuses tax the imagination. Nevertheless, his apologies notwithstanding, we find his conduct utterly unacceptable for a member of the legal profession. He must not be allowed to evade accountability for his omissions.

A member of the bar may be disbarred or suspended from his office as an attorney for violation of the lawyers oath and/or for breach of the ethics of the legal profession as embodied in the Code of Professional Responsibility.[23] We reiterate our ruling in Catu v. Atty. Rellosa:[24]

Indeed, a lawyer who disobeys the law disrespects it. In so doing, he disregards legal ethics and disgraces the dignity of the legal profession.

Public confidence in the law and in lawyers may be eroded by the irresponsible and improper conduct of a member of the bar. Every lawyer should act and comport himself in a manner that promotes public confidence in the integrity of the legal profession.

WHEREFORE, the petition is hereby GRANTED IN PART. The charge of oppressive or unethical behavior against respondent is dismissed. However, for violation of Canons 1 and 12 and Rules 1.03 and 12.04 of the Code of Professional Responsibility, as well as the lawyers oath, Atty. Freddie A. Venida is herebySUSPENDED from the practice of law for one (1) year, effective immediately from receipt of this resolution. He is further STERNLY WARNED that a repetition of the same or similar offense shall be dealt with more severely. Let a copy of this resolution be furnished the Office of the Bar Confidant and entered into the records of respondent Atty. Freddie A. Venida. The Office of the

Court Administrator shall furnish copies to all the courts of the land for their information and guidance.

SO ORDERED

EN BANC

ATTY. ILUMINADA M. VAFLORFABROA, Complainant,

A.C. No. 6273

Present:

PUNO, C.J., CARPIO, CORONA, - versus -

CARPIO MORALES, VELASCO, JR., NACHURA,

ATTY. OSCAR PAGUINTO, Respondent.

LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ.

Promulgated: March 15, 2010

x--------------------------------------------------x

DECISION

CARPIO MORALES, J.: An Information for Estafa[1] was filed on June 21, 2001 against Atty. IluminadaM. Vaflor-Fabroa (complainant) along with others based on a joint affidavit-complaint which Atty. Oscar Paguinto(respondent) prepared and notarized. As the joint affidavit-complaint did not indicate the involvement of complainant, complainant filed a Motion to Quash the Information which the trial court granted.[2] Respondents Motion for Reconsideration of the quashal of the Information was denied[3]

Respondent also filed six other criminal complaints against complainant for violation of Article 31 of Republic Act No. 6938 (Cooperative Code of the Philippines) before the Office of the Provincial Prosecutor, but he eventually filed a Motion to Withdraw them.[4]

On October 10, 2001, complainant, who was Chairperson of the General Mariano Alvarez Service Cooperative, Inc. (GEMASCO), received a Notice of Special General Assembly of GEMASCO on October 14, 2001 to consider the removal of four members of the Board of Directors (the Board), including her and the General Manager.[5] The notice was signed by respondent.

At the October 14, 2001 Special General Assembly presided by respondent and PNP Sr. Supt. Angelito L. Gerangco(Gerangco), who were not members of the then current Board,[6] Gerango, complainants predecessor, as Chair of the GEMASCO board, declared himself Chair, appointed others to replace the removed directors, and appointed respondent as Board Secretary.

On October 15, 2001, respondent and his group took over the GEMASCO office and its premises, the pumphouses, water facilities, and operations. On even date, respondent sent letter-notices to complainant and the four removed directors informing them of their removal from the Board and as members of GEMASCO, and advising them to cease and desist from further discharging the duties of their positions.[7]

Complainant thus filed on October 16, 2001 with the Cooperative Development Authority (CDA)-Calamba a complaint for annulment of the proceedings taken during the October 14, 2001 Special General Assembly.

The CDA Acting Regional Director (RD), by Resolution of February 21, 2002, declared the questioned general assembly null and void for having been conducted in violation of GEMASCOs By-Laws and the Cooperative Code of the Philippines.[8] The RDs Resolution of February 21, 2002 was later vacated for lack of jurisdiction[9] of CDA.

In her present complainant[10] against respondent for disbarment, complainant alleged that respondent:

X X X PROMOTED OR SUED A GROUNDLESS, FALSE OR UNLAWFUL SUIT, AND GAVE AID AND CONSENT TO THE SAME[11]

X X X DISOBEYED LAWS OF THE LAND, PROMOTE[D] DISRESPECT FOR LAW AND THE LEGAL PROFESSION[12]

X X X DID NOT CONDUCT HIMSELF WITH COURTESY, FAIRNESS AND CANDOR TOWARD HIS PROFESSIONAL COLLEAGUE AND ENGAGED IN HARASSING TACTICS AGAINST OPPOSING COUNSEL[13]

X X X VIOLATED CANON 19 A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL WITHIN THE BOUNDS OF THE LAW[14]

X X X RUINED AND DAMAGED NOT ONLY THE GEN. MARIANO ALVAREZ SERVICES COOPERATIVE, INC. (GEMASCO, INC.) BUT THE ENTIRE WATERCONSUMING COMMUNITY AS WELL[15]

Despite the Courts grant,[16] on respondents motion,[17] of extension of time to file Comment, respondent never filed any comment. The Court thus required him to show cause why he should not be disciplinarily dealt with,[18] but just the same he failed to comply.[19]

The Court thus referred the complaint to the Integrated Bar of the Philippines (IBP) for investigation, report, and recommendation.[20]

It appears that during the mandatory conference before the IBP, complainant proposed the following issues:

1. Whether or not the acts of respondent constitute violations of the Code of Professional Responsibility, particularly the following:

1.1 Canon 1 A lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and legal [processes].

1.2 Canon 8 A lawyer shall conduct himself with courtesy, fairness, and candor toward his professional colleagues, and shall avoid harassing tactics against opposing counsel.

1.3 Canon 10 A lawyer owes candor, fairness and good faith to the court.

1.4 Canon 19 A lawyer shall represent his client with zeal within the bounds of the law.

1.5 Rule 12.03 A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda or briefs, let the period lapse without submitting the same or offering an explanation for his failure to do so.

2. Whether or not the above acts of respondent constitute violations of his lawyers oath, particularly the following:

2.1 support the Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein

2.2 will do no falsehood, nor consent to the doing of any in court

2.3 will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same

2.4 will delay no man for money or malice

3. Whether or not the above acts of [respondent] complained of are grounds for disbarment or suspension of attorneys by the Supreme Court as provided for in Section 27, Rule 138 of the Revised Rules of Court.[21]

Respondents counsel who represented him during the conference proposed the issue of whether, on the basis of the allegations of the complaint, misconduct was committed by respondent.[22]

After the conclusion of the conference, both parties were ordered to submit position papers.[23] Complainant filed hers,[24] but respondent, despite grant, on his motion, of extension of time, did not file any position paper.

In her Report and Recommendation,[25] Investigating Commissioner Lolita A. Quisumbing found respondent guilty of violating the Lawyers Oath as well as Canons 1, 8, 10, and Rule 12.03 of the Code of Professional Responsibility. Noting that respondent had already been previously suspended for six months, the Commissioner recommended that respondent be suspended for two years.

The IBP Commission on Bar Discipline (CBD) Board of Governors opted for the dismissal of the complaint, however, for lack of merit.[26]

On Motion for Reconsideration,[27] the IBP-CBD Board of Governors recommended that respondent be suspended from the practice of law for six months. The Court finds that by conniving with Gerangco in taking over the Board of Directors and the GEMASCO facilities, respondent violated the provisions of the Cooperative Code of the Philippines and the GEMASCO By-Laws. He also violated the Lawyers Oath, which provides that a lawyer shall support the Constitution and obey the laws.

When respondent caused the filing of baseless criminal complaints against complainant, he violated the Lawyers Oath that a lawyer shall not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid or consent to the same.

When, after obtaining an extension of time to file comment on the complaint, respondent failed to file any and ignored this Courts subsequent show cause order, he violated Rule 12.03 of the Code of Professional Responsibility, which states that A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda

or briefs, let the period lapse without submitting the same or offering an explanation for his failure to do so.Sebastian v. Bajar[28] teaches:

x x x Respondents cavalier attitude in repeatedly ignoring the orders of the Supreme Court constitutes utter disrespect to the judicial institution.Respondents conduct indicates a high degree of irresponsibility. A Courts Resolution is not to be construed as a mere request, nor should it be complied with partially, inadequately, or selectively. Respondents obstinate refusal to comply with the Courts orders not only betrays a recalcitrant flaw in her character; it also underscores her disrespect of the Courts lawful orders which is only too deserving of reproof.

Lawyers are called upon to obey court orders and processes and respondents deference is underscored by the fact that willful disregard thereof will subject the lawyer not only to punishment for contempt but to disciplinary sanctions as well. In fact, graver responsibility is imposed upon a lawyer than any other to uphold the integrity of the courts and to show respect to their processes.[29](Citations omitted).

The Court notes that respondent had previously been suspended from the practice of law for six months for violation of the Code of Professional Responsibility,[30] he having been found to have received an acceptance fee and misled the client into believing that he had filed a case for her when he had not.[31] It appears, however, that respondent has not reformed his ways. A more severe penalty this time is thus called for.

WHEREFORE, respondent, Atty. Oscar P. Paguinto, is SUSPENDED for two yearsfrom the practice of law for violation of Canons 1, 8, 10, and Rule 12.03 of the Code of Professional Responsibility and the Lawyers Oath, effective immediately.

Let copies of this Decision be furnished the Office of the Bar Confidant, to be appended to respondents personal record as an attorney; the Integrated Bar of the Philippines; and all courts in the country for their information and guidance.

SO ORDERED

THIRD DIVISION

JONAR SANTIAGO, A.C. No. 6252 Complainant, Present: Panganiban, J., Chairman, - versus - Sandoval-Gutierrez,

Corona, and Carpio Morales,* JJ Promulgated:

Atty. EDISON V. RAFANAN, Respondent. October 5, 2004 x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x

DECISION

PANGANIBAN, J.:

N

otaries public are expected to exert utmost care in the performance of their duties, which are impressed with public interest. They are enjoined to comply faithfully with the

solemnities and requirements of the Notarial Law. This Court will not hesitate to mete out appropriate sanctions to those who violate it or neglect observance thereof. __________________ * On leave. The Case and the Facts

Before us is a verified Complaint[1] filed by Jonar Santiago, an employee of the Bureau of Jail Management and Penology (BJMP), for the disbarment of Atty. Edison V. Rafanan. The Complaint was filed with the Commission on Bar Discipline (CBD) of the Integrated Bar of the Philippines (IBP) on January 16, 2001. It charged Atty. Rafanan with deceit; malpractice or other gross misconduct in office under Section 27 of Rule 138[2] of the Rules of Court; and violation of Canons 1.01, 1.02 and 1.03 [3],

Canon

5[4],

and

Canons

12.07[5] and

12.08

of the Code of Professional Responsibility (CPR).

In his Report, IBP Investigating Commissioner Leland R. Villadolid Jr. summarized the allegations of the complainant in this wise: x x x. In his Letter-Complaint, Complainant alleged, among others, that Respondent in notarizing several documents on different dates failed and/or refused to: a)make the proper notation regarding the cedula or community tax certificate of the affiants; b) enter the details of the notarized documents in the notarial register; and c) make and execute the certification and enter his PTR and IBP numbers in the documents he had notarized, all in violation of the notarial provisions of the Revised Administrative Code. Complainant likewise alleged that Respondent executed an Affidavit in favor of his client and offered the same as evidence in the case wherein he was actively representing his client. Finally, Complainant alleges that on a certain date, Respondent accompanied by several persons waited for Complainant after the hearing and after confronting the latter disarmed him of his sidearm and thereafter uttered insulting words and veiled threats.[6]

On March 23, 2001, pursuant to the January 19, 2001 Order of the CBD,[7] Atty. Rafanan filed his verified Answer.[8] He admitted having administered the oath to the affiants whose

Affidavits

were

attached

to

the

verified

Complaint. He

believed,

however,

that

the

non-notation of their Residence Certificates in the Affidavits and the Counter-affidavits was allowed.

He opined that the notation of residence certificates applied only to documents acknowledged by a notary public and was not mandatory for affidavits related to cases pending before courts and other government offices. He pointed out that in the latter, the affidavits, which were sworn to before government prosecutors, did not have to indicate the residence certificates of the affiants. Neither did other notaries public in Nueva Ecija -- some of whom were older practitioners -- indicate the affiants residence certificates on the documents they notarized, or have entries in their notarial register for these documents.

As to his alleged failure to comply with the certification required by Section 3 of Rule 112[9] of the Rules of Criminal Procedure, respondent explained that as counsel of the affiants, he had the option to comply or not with the certification. To nullify the Affidavits, it was complainant who was duty-bound to bring the said noncompliance to the attention of the prosecutor conducting the preliminary investigation.

As to his alleged violation of Rule 12.08 of the CPR, respondent argued that lawyers could testify on behalf of their clients on substantial matters, in cases where [their] testimony is essential to the ends of justice. Complainant charged respondents clients with attempted murder. Respondent averred

that since they were in his house when the alleged crime occurred, his testimony is very essential to the ends of justice.

Respondent alleged that it was complainant who had threatened and harassed his clients after the hearing of their case by the provincial prosecutor on January 4, 2001. Respondent requested the assistance of the Cabanatuan City Police the following day, January 5, 2001, which was the next scheduled hearing, to avoid a repetition of the incident and to allay the fears of his clients. In support of his allegations, he submitted Certifications[10]from the Cabanatuan City Police and the Joint Affidavit[11] of the two police officers who had assisted them.

Lastly, he contended that the case had been initiated for no other purpose than to harass him, because he was the counsel of Barangay Captain Ernesto Ramos in the cases filed by the latter before the ombudsman and the BJMP against complainant.

After

receipt

of

respondents

Answer,

the

CBD,

through

Commissioner Tyrone R. Cimafranca, set the case for hearing on June 5, 2001, at two oclock in the afternoon. Notices[12] of the hearing were sent to the parties by registered mail. On the scheduled date and time of the hearing, only complainant appeared. Respondent was unable to do so, apparently because he had received the Notice only on June 8, 2001.[13] The hearing was reset to July 3, 2001 at two oclock in the afternoon.

On the same day, June 5, 2001, complainant filed his Reply[14] to the verified Answer of respondent. The latters Rejoinder was received by the CBD on July 13, 2001.[15] It also received complainants LetterRequest[16] to dispense with the hearings. Accordingly, it granted that request in its Order[17] dated July 24, 2001, issued through Commissioner Cimafranca. It thereby directed the parties to submit their respective memoranda within fifteen days from receipt of the Order, after which the case was to be deemed submitted for resolution.

The CBD received complainants Memorandum[18] on September 26, 2001.Respondent did not file any.

The IBPs Recommendation

On September 27, 2003, the IBP Board of Governors issued Resolution No. XVI-2003-172[19] approving and adopting the Investigating Commissioners Report that respondent had violated specific requirements of the Notarial Law on the execution of a certification, the entry of such certification in the notarial register, and the indication of the affiants residence certificate. The IBP Board of Governors found his excuse for the violations unacceptable. It modified, however, the recommendation[20] of the investigating commissioner by increasing the fine to P3,000 with a warning that any repetition of the violation will be dealt with a heavier penalty.

The other charges -- violation of Section 27 of Rule 138 of the Rules of Court; and Canons 1.01 to 1.03, 12.07 and 12.08 of the CPR -- were dismissed for insufficiency of evidence.

The Courts Ruling

We agree with the Resolution of the IBP Board of Governors.

Respondents Administrative Liability

Violation of the Notarial Law

The Notarial Law is explicit on the obligations and duties of notaries public.They are required to certify that the party to every document acknowledged before them has presented the proper residence certificate (or exemption from the residence tax); and to enter its number, place of issue and date as part of such certification.[21]They are also required to maintain and keep a notarial register; to enter therein all instruments notarized by them; and to give to each instrument executed, sworn to, or acknowledged

before [them] a number corresponding to the one in [their] register [and to state therein] the page or pages of [their] register, on which the same is recorded.[22] Failure to perform these duties would result in the revocation of their commission as notaries public.[23]

These formalities are mandatory and cannot be simply neglected, considering the degree of importance and evidentiary weight attached to notarized documents. Notaries public entering into their commissions are presumed to be aware of these elementary requirements.

In Vda. de Rosales v. Ramos,[24] the Court explained the value and meaning of notarization as follows: The importance attached to the act of notarization cannot be overemphasized.Notarization is not an empty, meaningless, routinary act. It is invested with substantive public interest, such that only those who are qualified or authorized may act as notaries public.Notarization converts a private document into a public document thus making that document admissible in evidence without further proof of its authenticity. A notarial document is by law entitled to full faith and credit upon its face. Courts, administrative agencies and the public at large must be able to rely upon the acknowledgment executed by a notary public and appended to a private instrument.

For this reason, notaries public should not take for granted the solemn duties pertaining to their office. Slipshod methods in their performance of the notarial act are never to be countenanced. They are expected to exert utmost care in the performance of their duties,[25] which are dictated by public policy and are impressed with public interest.

It is clear from the pleadings before us -- and respondent has readily admitted -- that he violated the Notarial Law by failing to enter in the documents notations of the residence certificate, as well as the entry number and the pages of the notarial registry.

Respondent believes, however, that noncompliance with those requirements is not mandatory for affidavits relative to cases pending before the courts and government agencies. He points to similar practices of older notaries in Nueva Ecija.

We cannot give credence to, much less honor, his claim. His belief that the requirements do not apply to affidavits is patently irrelevant. No law dispenses with these formalities. Au contraire, the Notarial Law makes no qualification or exception. It is appalling and inexcusable that he did away with the basics of notarial procedure allegedly because others were doing

so.Being swayed by the bad example of others is not an acceptable justification for breaking the law. We note further that the documents attached to the verified Complaint are the Joint Counter-Affidavit of respondents clients Ernesto Ramos and Rey Geronimo, as well as their witnesses Affidavits relative to Criminal Case No. 69-2000 for attempted murder, filed by complainants brother against the aforementioned clients. These documents became the basis of the present Complaint.

As correctly pointed out by the investigating commissioner, Section 3 of Rule 112 of the Rules of Criminal Procedure expressly requires respondent as notary -- in the absence of any fiscal, state prosecutor or government official authorized to administer the oath -- to certify that he has personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. Respondent failed to do so with respect to the subject Affidavits and Counter-Affidavits in the belief that -- as counsel for the affiants -- he was not required to comply with the certification requirement.

It must be emphasized that the primary duty of lawyers is to obey the laws of the land and promote respect for the law and legal processes.[26] They are expected to be in the forefront in the observance and maintenance of the rule of law. This duty carries with it the obligation to be well-informed of the existing laws and to keep abreast with legal developments, recent enactments and jurisprudence.[27] It is imperative that they be conversant with basic legal principles. Unless they faithfully comply with such duty, they may not be able to discharge competently and diligently their obligations as members of the bar.Worse, they may become susceptible to committing mistakes.

Where notaries public are lawyers, a graver responsibility is placed upon them by reason of their solemn oath to obey the laws.[28] No custom or age-old practice provides sufficient excuse or justification for their failure to adhere to the provisions of the law. In this case, the excuse given by respondent exhibited his clear ignorance of the Notarial Law, the Rules of Criminal Procedure, and the importance of his office as a notary public. Nonetheless, we do not agree with complainants plea to disbar respondent from the practice of law. The power to disbar must be exercised with great caution.[29] Disbarment will be imposed as a penalty only in a clear case of misconduct that seriously affects the standing and the character of

the lawyer as an officer of the court and a member of the bar. Where any lesser penalty can accomplish the end desired, disbarment should not be decreed.[30] Considering the nature of the infraction and the absence of deceit on the part of respondent, we believe that the penalty recommended by the IBP Board of Governors is a sufficient disciplinary measure in this case.

Lawyer as Witness for Client Complainant further faults respondent for executing before Prosecutor Leonardo Padolina an affidavit corroborating the defense of alibi proffered by respondents clients, allegedly in violation of Rule 12.08 of the CPR: A lawyer shall avoid testifying in behalf of his client.

Rule 12.08 of Canon 12 of the CPR states: Rule 12.08 A lawyer shall avoid testifying in behalf of his client, except: a) on formal matters, such as the mailing, authentication or custody of an instrument and the like; b) on substantial matters, in cases where his testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel.

Parenthetically, under the law, a lawyer is not disqualified from being a witness,[31]except only in certain cases pertaining to privileged communication arising from an attorney-client relationship.[32]

The reason behind such rule is the difficulty posed upon lawyers by the task of dissociating their relation to their clients as witnesses from that as advocates.Witnesses are expected to tell the facts as they recall them. In contradistinction, advocates are partisans -- those who actively plead and defend the cause of others. It is difficult to distinguish the fairness and impartiality of a disinterested witness from the zeal of an advocate. The question is one of propriety rather than of competency of the lawyers who testify for their clients.

Acting or appearing to act in the double capacity of lawyer and witness for the client will provoke unkind criticism and leave many people to suspect the truthfulness of the lawyer because they cannot believe the lawyer as disinterested. The people will have a plausible reason for thinking, and if their sympathies are against the lawyers client, they will have an opportunity, not likely to be neglected, for charging, that as a witness he fortified it with his own testimony. The testimony of the lawyer becomes doubted and is looked upon as partial and untruthful.[33]

Thus, although the law does not forbid lawyers from being witnesses and at the same time counsels for a cause, the preference is for them to refrain from testifying as witnesses, unless they absolutely have to; and should they do so, to withdraw from active management of the case.[34]

Notwithstanding this guideline and the existence of the Affidavit executed by Atty. Rafanan in favor of his clients, we cannot hastily make him administratively liable for the following reasons: First, we consider it the duty of a lawyer to assert every remedy and defense that is authorized by law for the benefit of the client, especially in a criminal action in which the latters life and liberty are at stake.[35] It is the fundamental right of the accused to be afforded full opportunity to rebut the charges against them. They are entitled to suggest all those reasonable doubts that may arise from the evidence as to their guilt; and to ensure that if they are convicted, such conviction is according to law.

Having undertaken the defense of the accused, respondent, as defense counsel, was thus expected to spare no effort to save his clients from a wrong conviction.He had the duty to present -- by all fair and honorable means -every defense and mitigating circumstance that the law permitted, to the end

that his clients would not be deprived of life, liberty or property, except by due process of law.[36]

The Affidavit executed by Atty. Rafanan was clearly necessary for the defense of his clients, since it pointed out the fact that on the alleged date and time of the incident, his clients were at his residence and could not have possibly committed the crime charged against them. Notably, in his Affidavit, complainant does not dispute the statements of respondent or suggest the falsity of its contents.

Second, paragraph (b) of Rule 12.08 contemplates a situation in which lawyers give their testimonies during the trial. In this instance, the Affidavit was submitted during the preliminary investigation which, as such, was merely inquisitorial.[37] Not being a trial of the case on the merits, a preliminary investigation has the oft-repeated purposes of securing innocent persons against hasty, malicious and oppressive prosecutions; protecting them from open and public accusations of crime and from the trouble as well as expense and anxiety of a public trial; and protecting the State from useless and expensive prosecutions.[38] The investigation is advisedly called preliminary, as it is yet to be followed by the trial proper.

Nonetheless, we deem it important to stress and remind respondent to refrain from accepting employment in any matter in which he knows or has reason to believe that he may be an essential witness for the prospective client. Furthermore, in future cases in which his testimony may become essential to serve the ends of justice, the canons of the profession require him to withdraw from the active prosecution of these cases.

No Proof of Harassment The charge that respondent harassed complainant and uttered insulting words and veiled threats is not supported by evidence. Allegation is never equivalent to proof, and a bare charge cannot be equated with liability.[39] It is not the self-serving claim of complainant but the version of respondent that is more credible, considering that the latters allegations are corroborated by the Affidavits of the police officers and the Certifications of the Cabanatuan City Police.

WHEREFORE, Atty. Edison V. Rafanan is found guilty of violating the Notarial Law and Canon 5 of the Code of Professional Responsibility and is hereby FINED P3,000 with a warning that similar infractions in the future will be dealt with more severely.

SO ORDERED

EN BANC

Re: Letter of the UP Law Faculty A.M. No. 10-10-4-SC entitled Restoring Integrity: A Statement by the Faculty of the Present: University of the Philippines College of Law on the Allegations of Plagiarism and Misrepresentation in CORONA, C.J., the Supreme Court. CARPIO, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, MENDOZA, and SERENO, JJ.

Promulgated:

October 19, 2010 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

RESOLUTION VILLARAMA, JR., J.: Plagiarism is the act of appropriating the literary composition of another, or parts or passages of his writings, or the ideas or language of the same, and passing them off as the product of ones own mind.[1] Allegations of this intellectual offense were hurled by Atty. Harry L. Roque, Jr. and Atty. Romel R. Bagares against Justice Mariano C. Del Castillo for his ponencia in the case of Vinuya v. Executive Secretary, G.R. No. 162230, April 28, 2010. In said case, the Court denied the petition for certiorari filed by Filipino comfort women to compel certain officers of the executive department[2] to espouse their claims for reparation and demand apology from the Japanese government for the abuses committed against them by the Japanese soldiers during World War II. Attys. Roque and Bagares represent the comfort women in Vinuya v. Executive Secretary, which is presently the subject of a motion for reconsideration. The authors and their purportedly plagiarized articles are: (1) Evan J. Criddle and Evan Fox-Decent from their article, A Fiduciary Theory of Jus Cogens published in 2009 in the Yale Journal of International Law; (2) Christian J. Tams from his book, Enforcing Erga Omnes Obligations in International Law published by the Cambridge University Press in 2005; and (3) Mark Ellis from his article, Breaking the Silence: On Rape as an International Crime published in the Case Western Reserve Journal of International Law in 2006. The allegations of plagiarism centered on Justice Del Castillos discussion of the principles of jus cogens and erga omnes. On August 9, 2010, Attys. Marvic M.V.F. Leonen, Froilan M. Bacungan, Pacifico A. Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo V. Sison, Patricia R.P. Salvador Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T. Hilbay,

Jay L. Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon F. Lumba, Rommel J. Casis, Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur P. Autea, Rosa Maria J. Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A. Catindig, Sandra Marie O. Coronel, Rosario O. Gallo, Concepcion L. Jardeleza, Antonio G.M. La Via, Carina C. Laforteza, Jose C. Laureta, Owen J. Lynch, Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Raul V. Vasquez, Susan D. Villanueva, and Dina D. Lucenario, members of the faculty of the University of the Philippines College of Law published a statement on the allegations of plagiarism and misrepresentation relative to the Courts decision in Vinuya v. Executive Secretary.Essentially, the faculty of the UP College of Law, headed by its dean, Atty. Marvic M.V.F. Leonen, calls for the resignation of Justice Mariano C. Del Castillo in the face of allegations of plagiarism in his work. Notably, while the statement was meant to reflect the educators opinion on the allegations of plagiarism against Justice Del Castillo, they treated such allegation not only as an established fact, but a truth. In particular, they expressed dissatisfaction over Justice Del Castillos explanation on how he cited the primary sources of the quoted portions and yet arrived at a contrary conclusion to those of the authors of the articles supposedly plagiarized. Beyond this, however, the statement bore certain remarks which raise concern for the Court. The opening sentence alone is a grim preamble to the institutional attack that lay ahead. It reads: An extraordinary act of injustice has again been committed against the brave Filipinas who had suffered abuse during a time of war.

The first paragraph concludes with a reference to the decision in Vinuya v. Executive Secretary as a reprehensible act of dishonesty and misrepresentation by the Highest Court of the land. The authors also not only assumed that Justice Del Castillo committed plagiarism, they went further by directly accusing the Court of perpetrating extraordinary injustice by dismissing the petition of the comfort women in Vinuya v. Executive Secretary.They further attempt to educate this Court on how to go about the review of the case.

The insult to the members of the Court was aggravated by imputations of deliberately delaying the resolution of the said case, its dismissal on the basis of polluted sources, the Courts alleged indifference to the cause of petitioners, as well as the supposed alarming lack of concern of the members of the Court for even the most basic values of decency and respect. Paragraph 9 of their published statement reads, But instead of acting with urgency on this case, the Court delayed its resolution for almost seven years, oblivious to the deaths of many of the petitioners seeking justice from the Court. When it dismissed the Vinuyapetition based on misrepresented and plagiarized materials, the Court decided this case based on polluted sources. By doing so, the Supreme Court added insult to injury by failing to actually exercise its power to urge and exhort the Executive Department to take up the claims of the Vinuya petitioners. Its callous disposition, coupled with false sympathy and nonchalance, belies (sic) [betrays] a more alarming lack of concern for even the most basic values of decency and respect.(Emphasis supplied).

The publication of a statement by the faculty of the UP College of Law regarding the allegations of plagiarism and misrepresentation in the Supreme Court was totally unnecessary, uncalled for and a rash act of misplaced vigilance. Of public knowledge is the ongoing investigation precisely to determine the truth of such allegations. More importantly, the motion for reconsideration of the decision alleged to contain plagiarized materials is still pending before the Court. We made it clear in the case of In re Kelly[3] that any publication, pending a suit, reflecting upon the court, the jury, the parties, the officers of the court, the counsel with reference to the suit, or tending to influence the decision of the controversy, is contempt of court and is punishable. While most agree that the right to criticize the judiciary is critical to maintaining a free and democratic society, there is also a general consensus that healthy criticism only goes so far.Many types of criticism leveled at the judiciary cross the line to become harmful and irresponsible attacks. These potentially devastating attacks and unjust criticism can threaten the independence of the judiciary.[4] The court must insist on being permitted to proceed to the disposition of its business in an orderly manner, free from outside interference obstructive of its functions and tending to embarrass the administration of justice.[5]

The Court could hardly perceive any reasonable purpose for the facultys less than objective comments except to discredit the April 28, 2010 Decision in the Vinuya case and undermine the Courts honesty, integrity and competence in addressing the motion for its reconsideration. As if the case on the comfort womens claims is not controversial enough, the UP Law faculty would fan the flames and invite resentment against a resolution that would not reverse the said decision. This runs contrary to their obligation as law professors and officers of the Court to be the first to uphold the dignity and authority of this Court, to which they owe fidelity according to the oath they have taken as attorneys, and not to promote distrust in the administration of justice.[6] Their actions likewise constitute violations of Canons 10, 11, and 13[7] and Rules 1.02 and 11.05[8] of the Code of Professional Responsibility.[9] WHEREFORE, in light of the foregoing, Attys. Marvic M.V.F. Leonen, Froilan M. Bacungan, Pacifico A. Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo V. Sison, Patricia R.P. Salvador Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L. Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon F. Lumba, Rommel J. Casis, Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur P. Autea, Rosa Maria J. Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A. Catindig, Sandra Marie O. Coronel, Rosario O. Gallo, Concepcion L. Jardeleza, Antonio G.M. La Via, Carina C. Laforteza, Jose C. Laureta, Owen J. Lynch, Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Raul V. Vasquez, Susan D. Villanueva, and Dina D. Lucenario, members of the faculty of the University of the Philippines College of Law, are directed to SHOW CAUSE, within ten (10) days from receipt of a copy of this Resolution, why they should not be disciplined as members of the Bar for violation of Canons 10, 11, and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility. Further, Dean Marvic M.V.F. Leonen is directed to SHOW CAUSE, within ten (10) days from receipt of this Resolution, why he should not be disciplinarily dealt with for violation of Canon 10, Rules 10.01, 10.02 and 10.03 for submitting, through his letter dated August 10, 2010, during the pendency of G.R. No. 162230, Vinuya v. Executive Secretary and of the investigation before the Committee on Ethics and Ethical Standards, for the consideration of the Court En Banc, a dummy which is not a true and faithful reproduction of the purported statement, entitled Restoring Integrity: A Statement by the Faculty of the University of the Philippines College of

Law on the Allegations of Plagiarism and Misrepresentation in the Supreme Court. Enclosed are copies of the said dummy and signed statement, respectively, attached to the said letter dated August 10, 2010 and to the Compliance dated August 31, 2010 filed by Roque & Butuyan Law Offices with the Committee on Ethics and Ethical Standards. Let this matter be DOCKETED as a regular administrative matter. Let service of this Resolution upon the above-named UP College of Law faculty members be effected by personal delivery. SO ORDERED