SECOND DIVISION

[A.M. No. MTJ-00-1336. December 19, 2000]

PETRA M. SEVILLA, complainant, vs. JUDGE ISMAEL L. SALUBRE, respondent.

D E C I S I O N

DE LEON, JR., J.:

Before us is a verified complaint for disbarment dated June 24, 1998, earlier docketed as A.C. No. 4970, against Atty. Ismael L. Salubre, presently a Municipal Trial Court Judge of Tagum, Davao del Norte, charging the respondent with violations of Cannons 16 and 17 of the Code of Professional Responsibility.i[1]

In the verified complaint, complainant alleges that respondent, prior to his appointment as a Judge, was her legal counsel in Civil Case No. 91-01 entitled “Sps. Petra Sevilla and Sancho Sevilla vs. Sps. Shem J. Alfarero, et al.”, for Repurchase and Damages with Prayer for the Issuance of Preliminary Injunction. On December 26, 1990, upon the advice of respondent, complainant turned-over to the former the amount of P45,000.00 to be consigned with the trial court as repurchase money. Moreover, instead of consigning said amount, the respondent deposited the money in his name with the Family Savings Bank, Panabo, Davao Province. And without the consent of the complainant, the said amount was withdrawn from the said bank, misappropriated and used by respondent for his own purposes and benefit.

This was followed by a series of promises and pleas for extension to pay. On April 14, 1994, respondent issued a promissory note promising to pay the amount of P45,000.00 in June 1994 or immediately thereafter.ii[2] On July 8, 1994, respondent asked for an extension of one month.iii[3] On October 17, 1994, respondent issued another promissory note promising to pay on or before January 31, 1995.iv[4] However, on January 30, 1995, respondent asked for a fifteen-day extension or up to February 15, 1995 within which to pay.v[5] This was followed by a telegram from respondent addressed to complainant and received on February 28, 1995 asking for another extension to pay because his loan with the PNB, Tagum Branch was still being processed.vi[6] Thereafter, on May 9, 1995, respondent executed yet another promissory note promising to pay the total amount of P63,000.00 (P45,000.00 as principal plus P18,000.00 as interest four (4) years and five (5) months at 10% per annum) on or before June 30, 1995 without necessity of demand.vii[7] But on June 28, 1995, respondent through a telegram, asked for an extension on the ground that his loan with PNB, Tagum Branch was still being processed.viii[8] On August 1, 1995, respondent once again asked for an extension based on the same ground and promised to pay before he assumes his post as judge of the Municipal Trial Court.ix[9] The 201 file of respondent shows that he assumed his post on August 1, 1995. On August 15, 1995, respondent promised to turn over to complainant the amount necessary to cover his obligation as soon as his loan with PNB was approved.x[10] On May 23, 1996, respondent asked Sancho, the husband of complainant, to come back on July 3, 1996 by which time the loan not with PNB but this time with Land Bank would allegedly be ready.xi[11] On August 21, 1996, the daughter of complainant, Leonor M. Sevilla, sent a demand letter asking respondent to pay the amount of P77,787.59 (P45,000.00 as principal plus P32,787.59 as 10% interest per annum for five (5) years and eight (8) months) on or before August 25, 1996, otherwise they will resort to court action .xii[12]

Subsequently, respondent issued two (2) checks, the first is dated April 30, 1997 for P45,000.00 and the second is dated May 15, 1997 for P31,000.00.xiii[13] However, on November 4, 1997 both checks

were dishonored on the ground “account closed”.xiv[14] Finally, complainant, now through her counsel, sent a demand letter dated November 15, 1997 asking respondent to make good the value of his two (2) checks within five (5) days from receipt of the letter.xv[15]

On November 25, 1998, this case was referred to the Office of the Court Administrator (OCA) for evaluation, report and recommendation.xvi[16] On November 25, 1998, the OCA through Deputy Court Administrator Reynaldo Suarez, recommended that respondent be allowed to file his Comment. The OCA opined that although the complaint focuses on acts of respondent prior to his appointment as judge of the Municipal Trial Court, the charges falls as one of the serious charges in Rule 140, Section 6 of the Rules of Court, to wit, willful failure to pay a debt. The obligation was not extinguished by his appointment as a Judge.

In his Comment,xvii[17] respondent denied all the allegations of complainant regarding how he handled the repurchase money. He averred that the allegations of the complainant in her complaint were merely the result of a minor misunderstanding and that he and complainant had already resolved the matter. In fact, he said, the complainant had executed an Affidavit of Desistance xviii[18]

dated August 9, 1999, wherein complainant alleged, among others, that the filing of the case was a result of a misunderstanding and could not be blamed for any criminal intent on the part of the respondent. Furthermore, in view of the settlement of the civil aspect of the case, she is no longer willing to pursue her complaint against the respondent.

Relying in the case of Imbing vs. Tiongson,xix[19] the OCA recommended that respondent be informed that the mere desistance of the complainant is not a ground for dismissal of the complaint and is not an excuse for delaying the filing of his comment. Accordingly, he should be required to comment anew on the complaint, addressing the facts and issues raised therein.

In his subsequent Commentxx[20] (with attachments) dated March 31, 2000, respondent explains that he was then the legal counsel of herein complainant in several cases before the RTC, Branch 4, Panabo, Davao, namely:

a. Civil Case No. 91-01, entitled “Sps. Petra and Sancho Sevilla vs. Sps. Shem Afarero, et al.,” for Repurchase of the Land in the amount of P200,000.00;

b. Another Civil Case entitled “Sps. Petra and Sancho Sevilla vs. Milky Amatong” for Repurchase also;

c. A case for support filed by Petra Sevilla against her husband Sancho Sevilla.

Respondent narrates that the aforecited cases were filed in 1990 and 1991. The case against Shem Alfarero is still pending before the Court of Appeals while the case against Milky Amatong is still pending before the RTC, Panabo, Davao. Sometime in the middle part of 1990, complainant paid him the amount of P45,000.00 for litigation expenses and appearance fee in the above-mentioned cases which he (respondent) deposited in his name with the Family Savings Bank, Panabo, Davao. However, complainant caused him to sign a receipt which stated that the purpose thereof is for the repurchase of the property subject of the case she filed against Shem Alfarero. Respondent claims that this amount is not for the repurchase of the said property considering that the value of the property subject in the said case is P200,000.00.

When respondent assumed office as Judge of the Municipal Trial Court in Tagum, Davao on August 1, 1995, complainant demanded for the return of the amount of P45,000.00 plus interest thereon which has reached a total amount of P77,787.50. Respondent then paid the amount of P35,000.00 with a balance of P10,000.00 on the principal but complainant insisted for the payment also of the interest. When respondent failed to pay the full amount and interest, as demanded, complainant filed a criminal case for Estafa against the respondent before the Regional Trial Court of Panabo, Davao, Branch 4. To avoid embarrassment, respondent paid the amount demanded and eventually complainant executed an Affidavit of Desistance on August 9, 1999 with the assistance of

her counsel, Atty. Jacinto T. Rubillar. Later, the trial court ordered the dismissal of the said criminal case in its Order dated August 27, 1999.xxi[21]

On the basis of its evaluation, report and recommendation, the OCA found the contention of respondent to be without merit. It opined that the contention of respondent that the amount he received from complainant was in payment of his appearance fee and other litigation expenses is belied by the receipt respondent signed on February 15, 1994. And still, in another receipt which respondent had signed, respondent acknowledged having deposited said amount of P45,000.00 with the Family Savings Bank, Panabo Branch. The OCA also found that respondent’s deliberate refusal to return the said amount despite repeated demands from his client (complainant herein) was a violation of Canon 16 particularly Rule 16.03, Code of Professional Responsibility and that it was of no moment that respondent had eventually settled his obligation. The respondent paid his obligation only after complainant had filed a case for the purpose. From the foregoing, the OCA recommended that respondent Judge Ismael L. Salubre be fined in the amount of P10,000.00 with a stern warning that a repetition of the same and similar acts shall be dealt with more severely. The OCA likewise recommended that the instant complaint be re-docketed as an administrative matter.

We agree with the findings and conclusion of the Office of the Court Administrator. However, taking into consideration the attendant circumstances of this case we believe that the amount of the fine recommended should be increased.

The Affidavit of Desistance of herein complainant did not divest this Court of its jurisdiction to impose administrative sanctions upon respondent Judge. In like manner, while it may be true that the complaint for Estafa had been dismissed, the dismissal was on account of the complainant’s voluntary desistance and not upon a finding of innocence of the respondent. It neither confirms nor denies the respondent’s non-culpability. It must be emphasized, that the primary object of administrative cases against lawyers is not only to punish and discipline the erring individual lawyers but also to safeguard the administration of justice by protecting the courts and the public from the misconduct of lawyers, and to remove from the legal profession persons whose utter disregard of their lawyer’s oath have proven them unfit to continue discharging the trust reposed in them as members of the bar. Thus, administrative cases against lawyers can still proceed despite the dismissal of civil and/or criminal cases against them.

In Fernando Cruz and Amelia Cruz vs. Atty. Ernesto Jacinto,xxii[22] we held that -

“The practice of law is so intimately affected with public interest that it is both a right and a duty of the State to control and regulate it in order to promote the public welfare. The Constitution vests this power of control and regulation in this Court. Since the practice of law is inseparably connected with the exercise of its judicial power in administration of justice, the Court cannot be divested of its constitutionally ordained prerogative which includes the authority to discipline, suspend or disbar any unfit and unworthy member of the Bar by a mere execution of affidavits of voluntary desistance and quitclaim (par [5], Sec. 5, 1987 Constitution).

A lawyer may be disciplined or suspended for any misconduct, whether in his professional or private capacity, which shows him to be wanting in moral character, in honesty, in probity and good demeanor, thus rendering unworthy to continue as an officer of the court (Maligsa vs. Cabanting, 272 SCRA 408 [1997]), and the complainants who called the attention of the Court to the attorney’s alleged misconduct are in no sense a party, and have generally no interest in the outcome except as all good citizens may have in the proper administration of justice (Rayos-Ombac vs. Rayos, 285 SCRA 93[1998]).”

We likewise agree with the Office of the Court Administrator that respondent Judge Ismael L. Salubre is liable for violation of Canon 16 of the Code of Professional Responsibility for his failure to return the funds of his client (complainant herein) upon demand. As noted earlier, respondent finally returned the funds to his client but only after the latter sued him for estafa.

In Judge Adoracion G. Angeles vs. Atty. Thomas C. Uy, Jr.xxiii[23], we stated that –

“The relationship between a lawyer and a client is highly fiduciary; it requires a high degree of fidelity and

good faith. It is designed ‘to remove all such temptation and to prevent everything of that kind from being done for the protection of the client.’

Thus, Canon 16 of the Code of Professional Responsibility provides that ‘a lawyer shall hold in trust all moneys and properties of his client that may come into his possession.’ Furthermore, Rule 16.01 of the Code also states that ‘a lawyer shall account for all money or property collected or received for or from the client.’ The Canons of Professional Ethics is even more explicit:

“The lawyer should refrain from any action whereby for his personal benefit or gain he abuses or takes advantage of the confidence reposed in him by his client.

Money of the client collected for the client or other trust property coming into the possession of the lawyer should be reported and accounted for promptly and should not under any circumstances be commingled with his own or be used by him.”

In the present case, the appointment of the respondent as Judge of the Metropolitan Trial Court is not a valid reason for respondent not to properly address and comply with the demand of complainant, his former client, to pay and settle forthwith the amount he had received in trust from the latter. Respondent’s contention that the money he received from complainant was actually the latter’s payment for his appearance fee and other litigation expenses should have been made known to complainant at the earliest time when the demand was made. However, instead of properly saying his piece regarding the matter he bombarded complainant with a long line of promises in the hope that complainant would eventually allow the matter to be left unsettled. Nothing in the numerous communications which respondent judge sent to complainant would indicate that he had really exerted efforts to explain the real story as he claimed it to be. Respondent did not even squarely addressed the veracity of the letters he sent to complainant and offer an explanation why his contention now is different from the contents of those letters. What is evident from the record is the fact that respondent misappropriated the money entrusted to him by his client (complainant herein) while he was still in trial practice. The fact that he was eventually appointed as Judge will not exculpate him from taking responsibility of the consequences of his acts as an officer of the court and, more so, now as Judge.

Though the acts complained of were prior to his appointment as a Judge, it is trite to emphasize that the Code of Judicial Ethics no less mandates that a judge should avoid the appearance of impropriety.xxiv[24] Even his personal behavior in his everyday life should be beyond reproach.xxv[25] By issuing the two checks after he was already discharging his duties as a Judge purportedly to settle the obligation, i.e., the first dated April 30, 1997 for P45,000.00 and the second is dated May 15, 1997 for P31,000.00, which later on were both dishonored on the ground “account closed”,xxvi[26] respondent failed to keep up with the exacting standards of the Canons of Judicial Ethics. Such act tends to show his apparent intention to further delay payment due the complainant, which delay in fact lasted for five (5) years and eight (8) months. Being the visible representation of law, and more importantly, of justice, the people sees in the respondent the intermediary of justice between two conflicting interests. If while still in active litigation practice lawyers do not know how to uphold this kind of justice to their clients previous to their appointment as Judges, how then could people expect them to render just judgments in the cases before them? This is the price that judges should pay for the honor bestowed upon those who occupy an exalted position in the administration of justice. No position exacts a greater demand on the moral righteousness and uprightness of an individual than a seat in the judiciary. A magistrate of the law must comport himself at all times in such a manner that his conduct, official or otherwise, can bear the most searching scrutiny of the public that looks up to him as the epitome of integrity and justice.xxvii[27]

With respect to the claim or allegation that the respondent violated Canon 17 of the Code of Professional Responsibility, we find that said allegation was not substantiated in this case.

WHEREFORE, respondent Judge Ismael L. Salubre is hereby found guilty of violation of Canon 16 of the Code of Professional Responsibility for his failure to return and immediately deliver the

funds of his former client, Petra M. Sevilla upon demand, and Canon 2 of the Canons of Judicial Ethics for his failure to avoid the appearance of impropriety. The respondent is hereby ordered to pay a fine in the amount of P20,000.00 with a STERN WARNING that a repetition of the same and similar acts shall be dealt with more severely.

Let a copy of this Decision be attached to the personal record of Judge Ismael L. Salubre in the Office of the Bar Confidant and copies thereof be furnished the Office of the Court Administrator.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.

iRepublic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

 

A.C. No. 4103 September 7, 1995

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

 

DAVIDE JR., J.:

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

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

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

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

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

The complainants filed a Reply to the respondent's Comment.

Issues having been joined, we required the parties to inform us whether they were willing to submit this case for decision on the basis of the pleadings they have filed. In their separate compliance, both manifested in the affirmative.

The facts in this case are not disputed.

Complainants Veronica Santiago, Benjamin Hontiveros, Ma. Socorro Manas, and Trinidad Nordista were the President, Vice-President, Treasurer, and Auditor, respectively, of the FEUFA. They allegedly expelled from the union Paulino Salvador. The latter then commenced with the Department of Labor and Employment (DOLE) a complaint (NCR-OD-M-90-10-050) to declare illegal his expulsion from the union.

In his resolution of 22 November 1990, Med-Arbiter Tomas Falconitin declared illegal Salvador's expulsion and directed the union and all its officers to reinstate Salvador's name in the roll of union members with all the rights and privileges appurtenant thereto. This resolution was affirmed in toto by the Secretary of Labor and Employment.

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

As the complainants' counsel, the respondent filed a motion to dismiss the said case on grounds of (1) res judicata by virtue of the final decision of the Med-Arbiter in NCR-OD-M-90-10-050 and (2) lack of jurisdiction, since what was involved was an intra-union issue cognizable by the DOLE. Later, he filed a supplemental motion to dismiss.

The trial court, per Judge Teresita Dizon-Capulong, granted the motion and ordered the dismissal of the case. Upon Salvador's motion for reconsideration, however, it reconsidered the order of dismissal, reinstated the case, and required the complainants herein to file their answer within a nonextendible period of fifteen days from notice.

Instead of filing an answer, the respondent filed a motion for reconsideration and dismissal of the case. This motion having been denied, the respondent filed with this Court a petition for certiorari, which was later referred to the Court of Appeals and docketed therein as CA-G.R. SP No. 25834.

Although that petition and his subsequent motion for reconsideration were both denied, the respondent still did not file the complainants' answer in Civil Case No. 3526-V-91. Hence, upon plaintiff Salvador's motion, the complainants were declared in default, and Salvador was authorized to present his evidence ex-parte.

The respondent then filed a motion to set aside the order of default and to stop the ex-parte reception of evidence before the Clerk of Court, but to no avail.

Thereafter, the trial court rendered a decision ordering the complainants herein to pay, jointly and severally, plaintiff Salvador the amounts of P200,000.00 as moral damages; P50,000.00 as exemplary damages or corrective damages; and P65,000.00 as attorney's fees; plus cost of suit.

The complainants, still assisted by the respondent, elevated the case to the Court of Appeals, which, however, affirmed in toto the decision of the trial court.

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

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

It is axiomatic that no lawyer is obliged to act either as adviser or advocate for every person who may wish to become his client. He has the right to decline employment, 1 subject, however, to Canon 14 of the Code of Professional Responsibility. Once he agrees to take up the cause of a client, the lawyer owes fidelity to such cause and must always be mindful of the trust and confidence reposed in him. 2 He must serve the client with competence and diligence, 3 and champion the latter's cause with wholehearted fidelity, care, and devotion. 4 Elsewise stated, he owes entire devotion to the interest of the client, warm zeal in the maintenance and defense of his client's rights, and the exertion of his utmost learning and ability to the end that nothing be taken or withheld from his client, save by the rules of law, legally applied. 5 This simply means that his client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land and he may expect his lawyer to assert every such remedy or defense. 6 If much is demanded from an attorney, it is because the entrusted privilege to practice law carries with it the correlative duties not only to the client but also to the court, to the bar, and to the public. A lawyer who performs his duty with diligence and candor not only protects the interest of his client; he also serves the ends of justice, does honor to the bar, and helps maintain the respect of the community to the legal profession. 7

The respondent admits that it was his duty to file an answer in Civil Case No. 3526-V-91. He justifies his failure to do so in this wise:

[I]n his overzealousness to question the Denial Order of the trial court, 8 [he] instead, thru honest mistake and excusable neglect, filed a PETITION FOR CERTIORARI with the Honorable Court, docketed as G.R. No. 100983. . . .

And, when the Court of Appeals, to which G.R. No. 100983 was referred, dismissed the petition, he again "inadvertently" failed to file an answer "[d]ue to honest mistake and because of his overzealousness as stated earlier. . . . "

In their Reply, the complainants allege that his failure to file an answer was not an honest mistake but was "deliberate, malicious and calculated to place them on the legal disadvantage, to their damage and prejudice" for, as admitted by him in his motion to set aside the order of default, his failure to do so was "due to volume and pressure of legal work." 9 In short, the complainants want to impress upon this Court that the respondent has given inconsistent reasons to justify his failure to file an answer.

We agree with the complainants. In his motion for reconsideration of the default order, the respondent explained his non-filing of the required answer by impliedly invoking forgetfulness occasioned by a large volume and pressure of legal work, while in his Comment in this case he attributes it to honest mistake and excusable neglect due to his overzealousness to question the denial order of the trial court.

Certainly, "overzealousness" on the one hand and "volume and pressure of legal work" on the other are two distinct and separate causes or grounds. The first presupposes the respondent's full and continuing awareness of his duty to file an answer which, nevertheless, he subordinated to his conviction that the trial court had committed a reversible error or grave abuse of discretion in issuing an order reconsidering its previous order of dismissal of Salvador's complaint and in denying the motion to reconsider the said order. The second ground is purely based on forgetfulness because of his other commitments.

Whether it be the first or the second ground, the fact remains that the respondent did not comply with his duty to file an answer in Civil Case No. 3526-V-91. His lack of diligence was compounded by his erroneous belief that the trial court committed such error or grave abuse of discretion and by his continued refusal to file an answer even after he received the Court of Appeals' decision in the certiorari case. There is no showing whatsoever that he further assailed the said decision before this Court in a petition for review under Rule 45 of the Rules of Court to prove his claim of overzealousness to challenge the trial court's order. Neither was it shown that he alleged in his motion to lift the order of default that the complainants had a meritorious defense. 10 And, in his appeal from the judgment by default, he did not even raise as one of the errors of the trial court either the impropriety of the order of default or the court's grave abuse of discretion in denying his motion to lift that order.

Pressure and large volume of legal work provide no excuse for the respondent's inability to exercise due diligence in the performance of his duty to file an answer. Every case a lawyer accepts deserves his full attention, diligence, skill, and competence, regardless of its importance and whether he accepts it for a fee or for free.

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

The respondent's negligence is not excused by his claim that Civil Case No. 3526-V-91 was in fact a "losing cause" for the complainants since the claims therein for damages were based on the final decision of the Med-Arbiter declaring the complainants' act of expelling Salvador from the union to be illegal. This claim is a mere afterthought which hardly persuades us. If indeed the respondent was so convinced of the futility of any defense therein, he should have seasonably informed the complainants thereof. Rule 15.05, Canon 15 of the Code of Professional Responsibility expressly provides:

A lawyer, when advising his client, shall give a candid and honest opinion on the merits and probable results of the client's case, neither overstating nor understanding the prospects of the case.

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

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

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

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

SO ORDERED.

Padilla, Bellosillo, Kapunan and Hermosisima Jr., JJ., concur.

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viiRepublic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

 

A.C. No. 3745 October 2, 1995

CYNTHIA B. ROSACIA, complainant, vs.ATTY. BENJAMIN B. BULALACAO, respondent.

R E S O L U T I O N

 

FRANCISCO, J.:

Complainant Cynthia B. Rosacia, president of Tacma, Phils., Inc., a duly registered corporation, filed a complaint for disbarment dated October 25, 1991, against herein respondent Atty. Benjamin B. Bulalacao. Acting on the complaint, the Court in a resolution dated February 24, 1992, resolved to refer the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. Commissioner Victor C. Fernandez, the IBP investigating commissioner, found that respondent breached his oath of office and accordingly recommended respondent's suspension from the practice of law for three (3) months. 1 In a resolution dated July 30, 1994, the IBP Board of Governors resolved to adopt and approve the commissioner's report and recommendation. 2

As found by the IBP, the undisputed facts are as follows:

On June 1, 1990, by virtue of a written Agreement (Exh. "3-a"), respondent Atty. Benjamin B. Bulalacao was hired as retained counsel of a corporation by the name of Tacma Phils., Inc.

On October 31, 1990, the lawyer-client relationship between the respondent and Tacma Phils., Inc. was severed as shown by another agreement of even date (Exh. "3-b").

On July, 1991, or after almost nine (9) months from the date respondent's retainer agreement with Tacma, Phils., Inc. was terminated, several employees of the corporation consulted the respondent for the purpose of filing an action for illegal dismissal. Thereafter, he agreed to handle the case for the said employees as against Tacma, Phils., Inc. by filing a complaint before the National Labor Relations Commission, and appearing in their behalf. 3

The sole issue to be addressed is whether or not respondent breached his oath of office for representing the employees of his former client, Tacma, Phils., Inc., after the termination of their attorney-client relationship. We agree with the findings of the IBP that respondent breached his oath of office. Respondent does not now dispute this. In fact, in his motion for reconsideration, respondent admitted that he "did commit an act bordering on grave misconduct, if not outright violation of his attorney's oath". 4 However, respondent is pleading for the Court's compassion and leniency to reduce the IBP recommended three months suspension to either fine or admonition with the following proffered grounds: that he is relatively new in the profession having been admitted to the Philippine Bar on April 10, 1990 at the age of 46 when the complained conduct was committed on August 1991; that he is of humble beginnings and his suspension will deprive his family of its only source of livelihood he being the sole bread winner in the family; that he has fully realized his mistake and the gravity of his offense for which he is fully repentant; that he has severed his attorney-client relationship with the employees of Tacma, Phils., Inc. by inhibiting himself and withdrawing his appearance as counsel in the labor case against Tacma, Phils., Inc.; and that he pledges not to commit the same mistake and to henceforth strictly adhere to the professional standards set forth by the Code of Professional Responsibility.

The Court reiterates that an attorney owes loyalty to his client not only in the case in which he has represented him but also after the relation of attorney and client has terminated as it is not good practice to permit him afterwards to defend in another case other person against his former client under the pretext that the case is distinct from, and independent of the former case. 5 It behooves respondent not only to keep inviolate the client's confidence, but also to avoid the appearance of treachery and double dealing for only then can litigants be encouraged to entrust their secrets to their attorneys which is of paramount importance in the administration of justice. 6 The relation of attorney and client is one of confidence and trust in the highest degree. 7 A lawyer owes fidelity to the cause of his client and he ought to be mindful of the trust and confidence reposed in him. 8 An attorney not only becomes familiar with all the facts connected with his client's cause, but also learns from his client the weak and strong points of the case. No opportunity must be given attorneys to take advantage of the secrets of clients obtained while the confidential relation of attorney and client exists. Otherwise, the legal profession will suffer by the loss of the confidence of the people. 9

Respondent's plea for leniency cannot be granted. We note that respondent is new in the profession as he was just admitted to the Philippine Bar on April 10, 1990, when the breach of his oath of office occurred more than a year after. Having just hurdled the bar examinations which included an examination in legal ethics, surely the precepts of the Code of Professional Responsibility to keep inviolate the client's trust and confidence even after the attorney-client relation is terminated 10 must have been still fresh in his mind. A lawyer starting to establish his stature in the legal profession must start right and dutifully abide by the norms of conduct of the profession. This will ineluctably redound to his benefit and to the upliftment of the legal profession as well.

ACCORDINGLY, respondent is hereby SUSPENDED from the practice of law for three months. Let this resolution be attached to respondent's record in the Office of the Bar Confidant and copies thereof furnished to all courts and to the Integrated Bar of the Philippines.

Regalado, Puno and Mendoza, JJ., concur.

viiiA.C. No. 1359 October 17, 1991

GENEROSA BUTED and BENITO BOLISAY, petitioners, vs.ATTY. HAROLD M. HERNANDO, respondent.

Jorge A. Dolorfino for petitioners.

R E S O L U T I O N

 

PER CURIAM:p

On 22 August 1974, spouses Generosa Buted and Benito Bolisay filed an administrative complaint for malpractice against respondent Atty. Harold M. Hernando, charging the latter with having wantonly abused professional secrets or information obtained by him as their counsel.

After respondent Hernando filed his Answer on 25 June 1974, the Court, in a resolution dated 4 October 1974 referred the complaint to the Solicitor-General for investigation, report and recommendation.

On 10 February 1975, complainants presented a Joint Affidavit of Desistance. 1

On 24 October 1975, the Solicitor-General conducted a hearing where respondent took the witness stand on his own behalf.

The record of the case shows the following background facts:

In an action for partition instituted by Generosa as compulsory heir of the deceased Teofilo Buted, respondent was counsel for Luciana Abadilla and a certain Angela Buted. Involved in said partition case was a parcel of land Identified as Lot 9439-B. Respondent ultimately succeeded in defending Luciana Abadilla's claim of exclusive ownership over Lot 9439-B. When Luciana died, respondent withdrew his appearance from that partition case.

It appears that Luciana Abadilla sold the lot to Benito Bolisay and a new Transfer Certificate of Title over the lot was issued in the name of complainant spouses.

When an action for specific performance was lodged by a couple named Luis Sy and Elena Sy against Benito Bolisay as one of the defendants, 2 the latter retained the services of respondent Atty. Hernando however claims that he rendered his services to Benito Bolisay free of charge. Subject of this case was a contract of lease executed by Benito's co-defendant therein, Enrique Buted, over a house standing on a portion of Lot No. 9439-B. It appears that the Sy's were claiming that the lease extended to the aforementioned lot. Benito was then asserting ownership over the realty by virtue of a Deed of Sale executed by Luciana Abadilla in his favor. Eventually, the Sy's were ordered to vacate the house subject of the lease. Respondent avers that the relationship between himself and Benito Bolisay as regards this case was terminated on 4 December 1969. 3

On 23 February 1974, respondent Hernando, without the consent of the heirs of Luciana Abadilla and complainant spouses, filed a petition on behalf of the heirs of Carlos, Dionisia and Francisco all surnamed Abadilla, seeking the cancellation of the Transfer Certificate of Title (TCT) of complainant spouses over the lot. Carlos, Dionisia and Francisco were Luciana's registered co-owners in the original certificate of title covering Lot No. 9439-B. 4 At the hearing, respondent Hernando testified that if the petition for cancellation of TCT was granted, Lot 9439-B would no longer be owned by complainant spouses but would be owned in common by all the heirs of Luciana Abadilla. 5

Complainant spouses, upon learning of respondent's appearance against them in the cadastral proceeding, manifested their disapproval thereof in a letter dated 30 July 1974. 6 Respondent however, pursued the case until it was eventually dismissed by the trial court on 2 September 1974 on the ground of prescription. 7

At the hearing before the Office of the Solicitor General and in his Answer, respondent Hernando admitted his involvement in the cadastral case as counsel for the Abadillas but denied having seen or taken hold of the controversial Transfer Certificate of Title, and having availed himself of any confidential information relating to Lot 9439-B.

In its Report and Recommendation dated 29 March 1990, the Solicitor General recommends that respondent be suspended from the practice of law for three (3) months for violation of the Canons of Professional Ethics by representing clients with conflicting interests, and filed before this Court the corresponding Complaint 8 dated 30 March 1990.

The issue raised in this proceeding is: whether or not respondent Hernando had a conflict of interests under the circumstances described above.

The Canons of Professional Ethics, the then prevailing parameters of behavior of members of the bar, defines a conflict of interests situation in the following manner:

6. Adverse influence and conflicting interests.—

xxx xxx xxx

It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.

The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidence forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed. (Emphasis supplied)

Though as regards the first and second cases handled by respondent, no conflict of interest existed, the same cannot be said with respect to the action for specific performance and the cadastral proceeding. By respondent's own admission, he defended the right of ownership over Lot 9439-B of complainant Benito Bolisay in the action for specific performance. He assailed this same right of ownership when he subsequently filed a petition for cancellation of complainants' Transfer Certificate of Title over that same lot. Respondent Hernando was in a conflict of interest situation.

It is clear from the above-quoted portion of the Canons of Professional Ethics that in cases where a conflict of interests may exist, full disclosure of the facts and express consent of all the parties concerned are necessary. 9 The present Code of Professional Responsibility is stricter on this matter considering that consent of the parties is now required to be in written form. 10 In the case at bar, such consent was wanting.

Respondent persistently argues that contrary to the claims of complainant spouses, he had never seen nor taken hold of the Transfer Certificate of Title covering Lot No. 9439-B nor obtained any confidential information in handling the action for specific performance. 11 The contention of respondent is, in effect, that because complainant has not clearly shown that respondent had obtained any confidential information from Benito Bolisay while representing the latter in the action for specific performance, respondent cannot be penalized for representing conflicting interests. That is not the rule in this jurisdiction. The rule here is, rather, that the mere fact that respondent had acted as counsel for Benito Bolisay in the action for specific performance should have precluded respondent from acting or appearing as counsel for the other side in the subsequent petition for cancellation of the Transfer Certificate of Title of the spouses Generosa and Benito Bolisay. There is no necessity for proving the actual transmission of confidential information to an attorney in the course of his employment by his first client in order that he may be precluded from accepting employment by the second or subsequent client where there are conflicting interests between the first and the subsequent clients. The reason for this rule was set out by the Court in Hilado v. David 12 in the following terms:

Communications between attorney and client are, in a great number of litigations, a complicated affair, consisting of entangled relevant and irrelevant, secret and well known facts. In the complexity of what is said in the course of the dealings between an attorney and a client, inquiry of the nature suggested would lead to the revelation, in advance of the trial, of other matters that might only further prejudice the complainant's cause. And the theory would be productive of other unsalutary results. To make the passing of confidential communication a condition precedent; i.e., to make the employment conditioned on the scope and character of the knowledge acquired by an attorney in determining his right to change sides, would not enhance the freedom of litigants, which is to be sedulously fostered, to consult with lawyers upon what they believe are their rights in litigation. The condition would of necessity call for an investigation of what information the attorney has received and in what way it is or it is not in conflict with his new position. Litigants would be in consequence be wary in going to an attorney, lest by an unfortunate turn of the proceeding, if an investigation be held, the court should accept the attorney's inaccurate version of the facts that came to him.

Hence the necessity of setting down the existence of the bare relationship of attorney and client as the yardstick for testing incompatibility of interests. This stern rule is designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to protect the honest lawyer from unfounded

suspicion of unprofessional practice. (Strong vs. Int. Bldg., etc.; Ass'n. 183 III., 97; 47 L.R.A., 792) It is founded on principles of public policy, on good taste. As has been said another case, the question is not necessarily one of the rights of the parties, but as to whether the attorney has adhered to proper professional standard. With these thoughts in mind, it behooves attorneys, like Caesar's wife, not only to keep inviolate the client's confidence, but also to avoid the appearance of treachery and double-dealing. Only thus can litigants be encouraged to entrust their secrets to their attorneys which is of paramount importance in the administration of justice. 13 (Emphasis supplied)

This Court went further in San Jose v. Cruz, 14 where the lawyer was charged with malpractice for having represented a new client whose interest was opposed to those of his former clients in another case:

The record shows that the respondent offered his services to the Matienzo spouses knowing that the petitioner had obtained a favorable judgment in the civil case No. 5480 and that his efforts in the subsequent civil case No. 5952 would frustrate said judgment and render it ineffectual, as has really been the result upon his obtaining the writ of injunction above-mentioned. Obviously his conduct is unbecoming to an attorney and cannot be sanctioned by the courts. An attorney owes loyalty to his client not only in the case in which he has represented him but also after the relation of attorney and client has terminated and it is not a good practice to permit him afterwards to defend in another case other persons against his former client under the pretext that the case is distinct from, and independent of the former case. 15 (Emphasis supplied)

The appropriate rule has been expressed by Justice Malcolm in the following manner:

An attorney is not permitted, in serving a new client as against a former one, to do anything which will injuriously affect the former client in any manner in which the attorney formerly represented him, though the relation of attorney and client has terminated, and the new employment is in a different case; nor can the attorney use against his former client any knowledge or information gained through their former connection. 16 (Emphasis supplied)

The absence of monetary consideration does not exempt the lawyer from complying with the prohibition against pursuing cases where a conflict of interest exists. The prohibition attaches from the moment the attorney-client relationship is established and extends beyond the duration of the professional relationship.

The Court therefore agrees with the Solicitor-General that respondent Hernando is guilty of violation of the Canons of Professional Ethics by representing clients with conflicting interests. We believe, however, that a heavier penalty is appropriate.

ACCORDINGLY, the Court Resolved to SUSPEND Atty. Harold M. Hernando from the practice of law for a period of five (5) months, with a WARNING that repetition of the same or similar offense will warrant a more severe penalty. A copy of this Resolution shall be furnished to all courts and to the Office of the Bar Confidant and spread on the personal record of respondent.

Fernan, C.J., Gutierrez, Jr., Feliciano, Bidin and Davide, Jr., JJ., concur.

ix

xTHIRD DIVISION

[A.C. No. 3066. December 3, 2001]

J.K. MERCADO AND SONS AGRICULTURAL ENTERPRISES, INC., and SPOUSES JESUS and ROSARIO K. MERCADO, complainants, v. ATTY. EDUARDO C. DE VERA and JOSE RONGKALES BANDALAN, Respondents.

R E S O L U T I O N

VITUG, J.:

A complaint for disbarment against Atty. Eduardo C. de Vera was filed by J.K. Mercado and Sons Agricultural Enterprises, Inc., and the spouses Jesus Mercado and Rosario Mercado. The complaint was an offshoot of an action, entitled "Rosario P. Mercado (`R. Mercado') vs. Jesus R. Mercado (`J. Mercado'), Mercado and Sons and Standard Fruits Corporation (`Stanfilco')," docketed Civil Case No. 17215, for dissolution and liquidation of conjugal partnership, accounting, support with support pendente lite, annulment of contract, reconveyance or recovery of possession of conjugal share, partition, damages and attorney's fees. The case was assigned to Branch 14 of the Regional Trial Court of Davao City presided over by Judge Jose Bandalan. Rosario Mercado was represented by respondent Atty. Eduardo C. de Vera.

On 15 December 1986, the case was decided in favor of Rosario Mercado who was awarded the sum of a little over P9 million. A writ of execution was issued and notices of garnishment were served on Rizal Commercial Banking Corporation ("RCBC") at Claveria, Davao City; RCBC at Tagum, Davao del Norte; and Traders Royal Bank at R. Magsaysay Avenue, Davao City, where the total amount of P1,270,734.66 was garnished.

On 26 February 1987, Rosario Mercado terminated the services of respondent and tendered the amount of P350,000.00 by way of attorney's fees. She demanded an accounting and the turn-over of the money still in the custody of respondent but the latter refused, claiming that he was entitled to P2,254,217.00 attorney's fees. Failing to recover the amount, Rosario Mercado filed a complaint for disbarment against respondent.

The matter was referred to the Integrated Bar of the Philippines ("IBP") for investigation, report and recommendation.

The IBP Board of Governors, on 23 March 1993, adopted Resolution No. X-93-41, recommending the suspension for one (1) year of Atty. Eduardo C. de Vera from the practice of law.

The Court, in its resolution of 26 October 1999, affirmed the IBP recommendation with modification that respondent Atty. Eduardo C. de Vera be suspended from the practice of law for only six (6) months. Respondent was likewise ordered to return to Rosario Mercado the amount in excess of P350,000.00 still in his possession, without prejudice to whatever judicial action he might wish to take to recover his unsatisfied attorney's fees, if any, the resolution directing at the same time that his suspension would stand until he would have satisfactorily shown to the Court his compliance therewith.

Respondent filed a motion for reconsideration. The motion was denied with finality in the resolution of the Court, dated 02 February 2000, a copy of which was received by respondent on 22 February 2000.

The following pleadings were thereafter filed before the Court:

a) An urgent motion, dated 13 March 2000, filed by respondent praying that the remaining period of his suspension be lifted;

b) A motion for leave to file and admit a manifestation and motion for the issuance of a writ of execution, dated 15 March 2000, filed by Rosario Mercado;

c) A manifestation and motion, dated 15 March 2000, filed by Rosario Mercado, praying that a writ of execution be issued compelling respondent to pay or return to her the sum of P396,692.20;

d) A motion for leave to file and admit a manifestation, dated 27 March 2000, filed by Rosario Mercado, praying for the imposition of appropriate sanction against respondent;

e) A letter, dated 11 February 2000, of Mr. Jose Elises, and another letter of 08 March 2000 of Capt. Edward Ranada from Davao City, inquiring whether or not respondent could practice law pending the resolution of his motion for reconsideration; and

f) A comment and opposition, dated 31 March 2000, filed by respondent relative to the manifestation and motion for the issuance of a writ of execution filed by Rosario Mercado.

On 24 May 2000, respondent informed the Court that in compliance with its resolution of 26 October 1999, he had voluntarily returned to Rosario Mercado the amount of P114,042.28 or the excess of P350,000.00 still in his possession.

On 12 July 2000, the Court issued a resolution to the effect that the effectivity of suspension of respondent should be reckoned from his receipt on 22 February 2000 of the resolution, dated 2 February 2000, of the Court (denying with finality the motion for reconsideration). The Court took note of the court appearances of, and pleadings signed by, respondent during his period of suspension from the practice of law. Respondent was required to explain his infractions. Meanwhile, the Court resolved to remand to the IBP the issue regarding the determination of the exact amount given by complainant to respondent and the amount to be returned by respondent.

On 25 October 2000, the Court issued another resolution referring to the IBP, for investigation, report and recommendation, the matter of respondent's alleged unauthorized practice of law.

The IBP, in its report of 08 October 2001, made the following findings:

As to the issue of how much money is still in respondent's possession -

"To summarize, respondent was able to disburse and/or account to complainant the following, to wit:

Amount deposited to complainant's TRB

and Metrobank account P300,000.00Additional amountreceived bycomplainant, as admitted10,000.00Amount received bycomplainant fromCBC garnished funds5,000.00Amount received bycomplainant by wayof BPI drafts&planefare52,000.00Respondent's expenses inconnectionwith Civil Case No. 17,215 andthreeCA cases57,832.67

P424,832.67

"Deducting said amount from the amount received by respondentby way of garnished funds from several banks in Davao City would leave a balanceof P845,901.89 (P1,270,734.56 minus P424,832.67).

"Since respondent was allowed to retain for himself the amountof P350,000.00 by way of attorney's fees and respondent voluntarily paid and/orreturned to complainant the amount P114,042.28 per BPI Manager's Check 497289 incompliance with the Supreme Court directive, such amounts should be deducted orapplied against respondent's accountability of P845,901.89. Therefore,respondent still has in his possession the amount ofP381,859.61, after deducting the attorney's fees and thevoluntary payment by respondent. Thus,

Amount received by respondent byP1,270,734.56

way of garnished fundsLess:Disbursements/Deductions as424,832.67discussed aboveAmount to be accountedfor byP845,901.89respondentLess: (1) Respondent'sattorney's fees P350,000.00(2) Amount voluntarilyreturned by respondent114,042.28464,042.28Amount still inrespondent'sP381,859.61

possession

"Respondent is obliged to deliver to complainant the amount ofP381,859.61 pursuant to Rule 16.03 of the Code of Professional Responsibilitywhich provides that a lawyer shall deliver the funds and property of his clientwhen due or upon demand."

Anent the alleged unauthorized practice of law byrespondent during the period of his suspension -

a)Re: His appearance before Home Insurance and GuarantyCorporation ("HIGC") and the filing of the Manifestation on Amicable Settlement.-

"There is no doubt that respondent's appearance before the HIGCand his subsequent filing of the Manifestation on Amicable Settlement constitutepractice of law in violation of his suspension order. A cursory reading of thetranscript of stenographic notes taken during the proceedings before the HIGC on24 February 2000 (Exhibit `D' to `D-14,' Complainant's Formal Offer ofDocumentary Evidence) reveal that respondent's purpose in appearing beforethe HIGC is to attend the scheduled preliminary conference. During thepreliminary conference, the parties - Atty. De Vera, the Hearing Officer, andthe opposing counsel - discussed the facts and circumstances of the case. Theyalso discussed the possibility of an amicable settlement. These are acts whichrequire legal expertise, training and experience.

"Respondent explained in his affidavit that he was at HIGCprecisely to inform the hearing officer of his suspension. Considering thedelicate nature of his situation, respondent should have, at the start of thepreliminary conference, explicitly manifested in open court regarding hissuspension. Assuming that respondent did not really intend to appear as counselin said preliminary conference, his appearance as counsel was clearly evidentwhen he subsequently filed the Manifestation on Offer of Amicable Settlement.Practice of law includes signing and filing of pleadings."

b)Re: Hisappearance in People vs. Jailen Paul. -

"Respondent'sex-partedirect examination of Mrs. EvaAntipuesto was aflagrantandblatantviolation of his suspensionorder. Having been suspended effective 22 February 2000, respondent should haverefrained from performing acts constituting practice of law - which includeconducting a direct examination of a witness. Respondent's explanation that hewas constrained to conduct a direct examination because of constant pleas bycomplainant, Ms. Eva Antipuesto, to speed up the case cannot justifyrespondent's violation of his suspension order. Besides, considering that he wasunder the control and supervision of the public prosecutor, respondent shouldhave allowed the public prosecutor Danilo Bello, who was present on 29 February2000 hearing, to conduct the direct examination. No amount of explanation canchange the fact [that] respondent conducted the direct examination knowing fullywell that he was suspended by Supreme Court from the practice of law. As to theMotion to Reset filed by respondent in the said case, the same constitutespractice of law."

c)Re: His appearance in "People vs. Nilda Cuison Go andPeople vs. Neolito Egot" on 07 March 2001. -

"As regards to the alleged appearance by respondent in the`Nilda Cuison Go' case, complainant Mercado was not able to show convincingproof that respondent actively practiced law by appearing as private prosecutorin said case. The Certification issued by the Clerk of Court III cannot beconsidered a proof that respondent actively practiced law. Respondent was ableto explain fully that his appearance was only to verify the case status of thecase. However, respondent's appearance in the `Neolito Egot' [case] isconsidered practice of law because he appeared before the court and representedhimself as private prosecutor. Respondent's subsequent desistance is of nomoment because there was intent on his part to appear as privateprosecutor."

d)Re: His appearance in "People of the Phils. vs. EdgardoEstareja." -

"After a careful study of the parties' claims and defenses,respondent's appearance on 1 June 2000 for the promulgation of Decision and thefiling of the Motion for Reconsideration constitute practice of law indefianceof the Supreme Court Resolution. It appears that respondent didnot `merely attend' the promulgation of the judgment, respondent acted andappeared as counsel for the accused and actively participated in theproceedings. As a matter of fact, after the promulgation of the decision,respondent manifested inopen courttheir intention to appeal andrespondent even gave his comments on the Decision of the trial court. These areacts that can be performed only by

a lawyer who is authorized to practice law.Needless to say, he was also acting as counsel for the accused when he filed theMotion for Reconsideration."

e)Re: His appearance as legal counsel of the LAKAS-NUCDbefore the Board of Canvasser on 17 May 2000. -

"Respondent admitted having appeared at the canvassing inquestion but claims that his participation therein was `merely like that of anon-lawyer acting as representative of Governor Del Rosario and RepresentativeFloreindo.' When LAKAS-NUCD hired the services of respondent, he was hired notas a mere representative of its candidates. Respondent was hired to protect theinterest of its candidates in accordance with the election laws. Reading fromthe transcript of stenographic notes taken during the canvassing, there was anactive and actual exercise of his legal knowledge and expertise. Thus, hisappearance constitutes practice of law."

f)Re: Complaint of Atty. Honesto Cabarroguis. -

"After a careful study of complainant's allegation, complainantAtty. Cabarroguis failed to provide this Office convincing evidence thatrespondent actually passed on 'notes' to his son to guide the latter in hisdirect examination. The act of passing a `piece of paper' inside the courtroomduring the trial does not involve legal expertise or the application of legalknowledge and therefore does not constitute practice of law."

g)Re: Complaint of Mr. Jailen Paul. -

"Exhibit `EE' is a Manifestation dated 21 May 2001 signed byrespondent requesting for a resetting of the case. Exhibit `FF' is thetranscript of stenographic notes taken during the hearing on 10 October 2000 ofthe case `People of the Philippines vs. Jailen Paul' before the Regional TrialCourt of Davao City. Exhibit `GG' is an Urgent Motion to Reset dated 3 October2000 signed by Francis Arnold De Vera (for Eduardo De Vera).

"The pleadings filed clearly show that respondent De Verapracticed law during his suspension. The practice of law includes filing ofpleadings before the courts.

h)Re: Pleadings filed by respondent during hissuspension.-

"In the following cases, respondent violated his suspensionorder and practiced law when he signed the following pleadings which were filedbefore the regular courts.

"Urgent Manifestation with motion to defer Issuance of Writ ofExecution (Exhibit `T,' Complainant's Formal Offer of Exhibit) dated 07June 2000 in the case `Socorro Tiongko et al., vs. Loreto Rosca,' Civil Case No.3241-B-96;

"Urgent Ex-Parte Request Reiterating Urgent Prayer for 20-DayTRO (Exhibit `U') dated 7 June 2000 in the case `Republic of thePhilippines vs. Estate of Vicenta Tongko,' Civil Case No. 27-544-99;

"Defendant's Pre-Trial Brief (Exhibit `V') dated 30May 2000 in the case `Alcrej Corporation vs. Raquel Camisura and CesarCamisura,' Civil Case No. 2815-F-96;

"Defendant's Pre-Trial Brief (Exhibit `W') dated 30May 2000 in the case `Ricardo Gahol et al., versus Eliseo Gatapia' Civil CaseNo. 2817-F-96;

"Defendant's Pre-Trial Brief (Exhibit `X') dated 30 May 2000 inthe case `Ricardo Gahol, et al. vs. Eliseo Gatapia' Civil Case No. 2818-F-96;and

"Ex-Parte Urgent Request to Set Continuation of HearingContempt Incident (Exhibit `Z') dated 23 June 2000 in the case `PanaboPublic Market Vendors Estension Association, Inc. vs. Municipality of Panabo,'Civil Case No. 89-23."

The IBP concluded that, in numerous occasions during the periodof his suspension, respondent engaged in the practice of law despite the absenceof an order from the Supreme Court lifting his suspension and that, on the basisof the evidence presented by the parties, respondent still had in his possessionthe excess amount of P381,859.61 due and owing in favor of Rosario Mercado.

Practice of law embraces any activity, in or out of court,which requires the application of law, as well as legal principles, practice orprocedure and calls for legal knowledge, training and experience.[1One is entitled to practice law if he has beenduly admitted to the bar and there maintains a good standing.

The findings of the IBP would disclose that respondent indeedactively engaged in the practice of law during the period of his suspension.Respondent was suspended from the practice of law by this Court for six months,which took effect on 22 February 2000 (date of receipt by respondent of theCourt's resolution of 2 February 2000). A review of the records would indicatethat respondent was last reported to have engaged in the unauthorized practiceof law on 1 June 2000 (when he appeared in the promulgation of decision in thecase of People of the Philippines vs. Eduardo Estareja). Thereforth, it wouldappear that he started to refrain from the practice of law. The InvestigatingCommissioner reported that the exact sum still due from respondent to thecomplainant would amount to P381,859.61, a finding amply supported by therecords.

WHEREFORE,respondent Atty. Eduardo C. de Verais hereby DIRECTED to return to Rosario Mercado the amount of P381,859.61, andhis suspension from the practice of law shall be lifted once he would have shownto the satisfaction of the Court his compliance therewith.

Melo,(Chairman), Panganiban,Sandoval-Gutierrez, and Carpio, JJ., concur.

xiG.R. No. 105909 June 28, 1994

MUNICIPALITY OF PILILLA, RIZAL, petitioner, vs.HON. COURT OF APPEALS, HON. ARTURO A. MARAVE, as Presiding Judge, Regional Trial Court, Branch 78, Morong, Rizal, and PHILIPPINE PETROLEUM CORPORATION, respondents.

Felix E. Mendiola for petitioner.

Makalintal, Barot, Torres & Ibarra for respondent Philippine Petroleum Corporation.

 

 

REGALADO, J.:

Petitioner questions and seeks the nullification of the resolution of respondent Court of Appeals in CA-G.R. SP. No. 27504 dated March 31, 1992, dismissing the petition for having been filed by a private counsel, as well as its succeeding resolution dated June 9, 1992, denying petitioner's motion for reconsideration. 1

The records show that on March 17, 1989, the Regional Trial Court of Tanay, Rizal, Branch 80, rendered judgment in Civil Case No. 057-T in favor of plaintiff, now herein petitioner Municipality of Pililla, Rizal, against defendant, now herein private

respondent Philippine Petroleum Corporation (PPC, for short), ordering therein defendant to pay said plaintiff (1) the amount of P5,301,385.00 representing the tax on business due from the defendant under Section 9(A) of Municipal Tax Ordinance No. 1 of said municipality for the period from 1979 to 1983, inclusive, plus such amount of tax as may accrue until final determination of the case; (2) storage permit fee in the amount of P3,321,730.00 due from the defendant under Section 10, paragraph Z(13) (b-1-c) of the same municipal tax ordinance for the period from 1975 to 1986, inclusive, plus the amount of said fee that may accrue until final determination of the case; (3) mayor's permit fee due from the defendant under Section 10, paragraph (P) (2) of said municipal tax ordinance from 1975 to 1984, inclusive, in the amount of P12,120.00, plus such amount of the same fee as may accrue until final determination of the case; (4) sanitary inspection fee in the amount of P1,010.00 for the period from 1975 to 1984, plus the amount of this fee that may accrue until final determination of the case; and (5) the costs of suit. 2

On June 3, 1991, in G.R. No. 90776 this Court affirmed the aforesaid judgment, with the modification that business taxes accruing prior to 1976 are not to be paid by PPC because the same have prescribed, and that storage fees are not also to be paid by PPC since the storage tanks are owned by PPC and not by the municipality and, therefore, cannot be the bases of a charge for service by the municipality. 3 This judgment became final and executory on July 13, 1991 and the records were remanded to the trial court for execution.

On October 14, 1991, in connection with the execution of said judgment, Atty. Felix E. Mendiola filed a motion in behalf of plaintiff municipality with the Regional Trial Court, Branch 78, Morong, Rizal* for the examination of defendant corporation's gross sales for the years 1976 to 1978 and 1984 to 1991 for the purpose of computing the tax on business imposed under the Local Tax Code, as amended. On October 21, 1991, defendant corporation filed a manifestation to the effect that on October 18, 1991, Pililla Mayor Nicomedes Patenia received from it the sum of P11,457,907.00 as full satisfaction of the above-mentioned judgment of the Supreme Court, as evidence by the release and quitclaim documents executed by said mayor. Accordingly, on October 31, 1991 the court below issued an order denying plaintiff municipality's motion for examination and execution of judgment on the ground that the judgment in question had already been satisfied. 4

Thereafter, on November 21, 1991 Atty. Mendiola filed a motion for reconsideration of the court's aforesaid order of October 31, 1991, claiming that the total liability of defendant corporation to plaintiff municipality amounted to P24,176,599.00, while the amount involved in the release and quitclaim executed by Mayor Patenia was only P12,718,692; and that the said mayor could not waive the balance which represents the taxes due under the judgment to the municipality and over which judgment the law firm of Atty. Mendiola had registered two liens for alleged consultancy services of 25% and attorneys' fees of 25% which, when quantified and added, amount to more than P12 million. On January 28,1992, the trial court denied the aforesaid motion for reconsideration. 5

On February 18, 1992, Atty. Mendiola, again ostensibly in behalf of herein petitioner municipality, filed a petition for certiorari with us, which petition we referred to the Court of Appeals for proper disposition and was docketed therein as CA-G.R. SP No. 27504. 6 On March 2, 1992, respondent PPC filed a motion questioning Atty. Mendiola's authority to represent petitioner municipality. 7 Consequently, on March 31, 1992 respondent Court of Appeals dismissed the petition for having been filed by a private counsel in violation of law and jurisprudence, but without prejudice to the filing of a similar petition by the Municipality of Pililla through the proper provincial or municipal legal officer. 8 Petitioner filed a motion for reconsideration which was denied by the Court of Appeals in its resolution of June 9, 1992. 9

Petitioner is once again before us with the following assignment of errors:

1. It is an error for the Court of Appeals to consider private respondent's new issue raised for the first time on appeal, as it could no longer be considered on appeal, because it was never been (sic) raised in the court below.

2. It is an error for the Court of Appeals in dismissing (sic) the instant petition with alternative remedy of filing similar petition as it is a departure from established jurisprudence.

3. It is an error for the Court of Appeals to rule that the filing of the instant petition by the private counsel is in violation of law and jurisprudence. 10

We find the present petition devoid of merit.

The Court of Appeals is correct in holding that Atty. Mendiola has no authority to file a petition in behalf of and in the name of the Municipality of Pililla. The matter of representation of a municipality by a private attorney has been settled in Ramos vs. Court of Appeals, et al., 11 and reiterated in Province of Cebu vs. Intermediate Appellate Court, et al., 12 where we ruled that private attorneys cannot represent a province or municipality in lawsuits.

Section 1683 of the Revised Administrative Code provides:

Section 1683. Duty of fiscal to represent provinces and provincial subdivisions in litigation. — The provincial fiscal shall represent the province and any municipality or municipal district thereof in any court, except in cases whereof original jurisdiction is vested in the Supreme Court or in cases where the municipality or municipal district in question is a party adverse to the provincial government or to some other municipality or municipal district in the same province. When the interests of a provincial government and of any political division thereof are opposed, the provincial fiscal shall act on behalf of the province.

When the provincial fiscal is disqualified to serve any municipality or other political subdivision of a province, a special attorney may be employed by its council. 13

Under the above provision, complemented by Section 3, Republic Act No. 2264, the Local Autonomy Law, 14 only the provincial fiscal and the municipal attorney can represent a province or municipality in their lawsuits. The provision is mandatory. The municipality's authority to employ a private lawyer is expressly limited only to situations where the provincial fiscal is disqualified to represent it. 15

For the aforementioned exception to apply, the fact that the provincial fiscal was disqualified to handle the municipality's case must appear on record. 16 In the instant case, there is nothing in the records to show that the provincial fiscal is disqualified to act as counsel for the Municipality of Pililla on appeal, hence the appearance of herein private counsel is without authority of law.

The submission of Atty. Mendiola that the exception is broad enough to include situations wherein the provincial fiscal refuses to handle the case cannot be sustained. The fiscal's refusal to represent the municipality is not a legal justification for employing the services of private counsel. Unlike a practicing lawyer who has the right to decline employment, a fiscal cannot refuse to perform his functions on grounds not provided for by law without violating his oath of office. Instead of engaging the services of a special attorney, the municipal council should request the Secretary of Justice to appoint an acting provincial fiscal in place of the provincial fiscal who has declined to handle and prosecute its case in court, pursuant to Section 1679 of the Revised Administrative Code. 17

It is also significant that the lack of authority of herein counsel, Atty. Mendiola, was even raised by the municipality itself in its comment and opposition to said counsel's motion for execution of his lien, which was filed with the court a quo by the office of the Provincial Prosecutor of Rizal in behalf of said municipality. 18

The contention of Atty. Mendiola that private respondent cannot raise for the first time on appeal his lack of authority to represent the municipality is untenable. The legality of his representation can be questioned at any stage of the proceedings. In the cases hereinbefore cited, 19 the issue of lack of authority of private counsel to represent a municipality was only raised for the first time in the proceedings for the collection of attorney's fees for services rendered in the particular case, after the decision in that case had become final and executory and/or had been duly executed.

Furthermore, even assuming that the representation of the municipality by Atty. Mendiola was duly authorized, said authority is deemed to have been revoked by the municipality when the latter, through the municipal mayor and without said counsel's participation, entered into a compromise agreement with herein private respondent with regard to the execution of the judgment in its favor and thereafter filed personally with the court below two pleadings entitled and constitutive of a "Satisfaction of Judgment" and a "Release and Quitclaim". 20

A client, by appearing personally and presenting a motion by himself, is considered to have impliedly dismissed his lawyer. Herein counsel cannot pretend to be authorized to continue representing the municipality since the latter is entitled to dispense with his services at any time. Both at common law and under Section 26, Rule 138 of the Rules of Court, a client may dismiss his lawyer at any time or at any stage of the proceedings, and there is nothing to prevent a litigant from appearing before the court to conduct his own litigation. 21

The client has also an undoubted right to compromise a suit without the intervention of his lawyer. 22 Even the lawyers' right to fees from their clients may not be invoked by the lawyers themselves as a ground for disapproving or holding in abeyance the approval of a compromise agreement. The lawyers concerned can enforce their rights in the proper court in an appropriate proceeding in accordance with the Rules of Court, but said rights may not be used to prevent the approval of the compromise agreement. 23

The apprehension of herein counsel that it is impossible that the municipality will file a similar petition, considering that the mayor who controls its legislative body will not take the initiative, is not only conjectural but without factual basis. Contrary to his pretensions, there is presently a manifestation and motion pending with the trial court filed by the aforesaid municipal mayor for the withdrawal of the "Satisfaction of Judgment" and the "Release and Quitclaim" 24 previously filed in the case therein as earlier mentioned.

WHEREFORE, the petition at bar is DENIED for lack of merit and the judgment of respondent Court of Appeals is hereby AFFIRMED.

SO ORDERED.

Narvasa, C.J., Padilla, Puno and Mendoza, JJ., concur.

June 30, 1960

G.R. No. L-13966THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.ALBERTO DACUDAO, defendant-appellant.

Office of the Solicitor General Edilberto Barot and Solicitor Camilo D. Quiason for appellee.Palmares and Villanueva for appellant.

Labrador, J.:

Appeal from a judgment of the Court of First Instance of Iloilo, Hon. Jose R. Querubin, presiding, finding Alberto Dacudao, defendant-appellant, guilty of the crime of murder and sentencing him to reclusion perpetua, to pay the heirs of the deceased Angel Sobrepeña the sum of P6,000.00 and to pay the costs.

The record discloses the following facts: In the evening of December 2, 1957 Angel Sobrepeña attended the dance at a dance hall in Sta. Barbara, Iloilo. The

defendant-appellant was also present at a dance hall. He carried with him to the dance hall a garand rifle, with which he was provided as a soldier of the Constabulary. Sometime before nine o'clock that evening Sobrepeña was seen dancing. About that time Dacudao had sat down on a desk near the orchestra (7-Up-Tombo), his rifle in his hands. After Sobrepeña had finished dancing and while he was in the hall, the gun that Dacudao was holding exploded or fired, hitting Sobrepeña in the chest, as a result of which he fell down on the floor of the hall dead.

The witnesses for the prosecution testified that Dacudao was seen passing, not through the gate, but through an opening of the fence surrounding the dance hall; that before ten in the evening, Sobrepeña was seen dancing with a partner, while Dacudao was seated in a table near the orchestra; that when the dance was over, Sobrepeña brought his partner to a seat and thereafter proceeded to the gate of the dance hall, holding and tapping his cigarette; that while in that position Dacudao approached him from behind and then called Sobrepeña by his name Procoy. Sobrepeña, thereupon, turned around smiling , but just as he did so Dacudao fired his rifle at Sobrepeña, hitting him in the chest; that one Constabulary soldier tried to wrest the gun from

Dacudao but the latter shoved him aside and went away.

The Municipal Health Officer of Sta. Barbara examined the cadaver the following day and made the following post-mortem findings:

x x x x x x x x x

5. Evidence of bullet hole in the Camiseta, blood stained, though no evidence of powder burns.

6. Entrance gunshot wounds, 81/2 cm. away from the mid eternal line left chest at the level of the 5th interspace, 2 cms. below and 21/2 cms. inside the nipple.

7. There is presence of contusion colar at the lateral half of the margin or lips of the wound. Wound diameter 1 cm.

8. Exit, gunshot wound 21/2 cms. x 3 cms. right chest, level of the fifth rib in the mid auxiliary line 13 cms. below the right axila. Distance of wound from mid sternal line to exit of wound is 20 cms.

9. That and thru gunshot wound antero-proximal third right arm traversing anterior to the right humerus with exit at the postero-lateral side 1 cm. below the level of the wound of the opposite side. Wound measurement; antero proximal third is 3 cms. x 2 cms. whereas postero lateral is 5 cms. x 21/2 cms. Greater measurement follows axis of the body.

10. Thoracic cavity filled with dark fluid blood, with coagulated blood about the size of 3 closed fists were extracted hddxsKNq.

11. Pericardium was perforated at the base with grazing wound at the dependent portion of the right ventricle.

12. Diaphragm perforated.

13. Liver right lobe ruptured.

A last witness for the prosecution is the Chief Police of New Lucene, Iloilo, who testified that on December 3, 1957, Dacudao presented himself at his office at 9:30 a.m. and told him he was surrendering in connection with the killing of Procoy in Sta. Barbara, explaining that he did so because a few months before Procoy (Sobrepeña) had mauled him at the same place in Sta. Barbara as a result of which his arm was broken (at the same time showing his fractured and broken hand). The Chief said that Dacudao had arrived at his office earlier, and had put his rifle on a rack QSO77f.

Defendant-appellant described that the killing happened thus:

A—While I was sitting at the desk I held my rifle pointing upwards, my right hand holding my rifle at the upper handguard. After the orchestra has played a piece and the dancers were through dancing, I tried to look around if I knew somebody inside the dance hall. Suddenly somebody grabbed my rifle and I was caught by surprise.

Because of the suddenness of the grabbing of my rifle my left hand holding the upper handguard slipped to the barrel and my right hand slipped also to the small of stock of my rifle of the trigger. And because of the suddenness of the grabbing of my rifle at the barrel, I unconsciously squeezed the trigger. So that recovering my poise, I had to pull my rifle back and at the same time I heard him say that "so you are still alive". At the same time when my rifle was grabbed and I was taken along with my rifle and because of the suddenness I automatically released the safety lock of my rifle and as I pulled back my rifle that was when I squeezed the trigger and he fell qF5o.

One of the witnesses for the defense, the one who was detailed to guard at the dance hall testified for the prosecution. All that he declared is that as he heard the shot he went to find where it came from and found thereat Sobrepeña sprawled. Another witness testified that Sobrepeña and Dacudao were struggling for the possession of the rifle. The third testified that he saw Sobrepeña approaching Dacudao, trying to grab the gum from the latter, and that as the gun was pulled, it fired and the person grabbing it fell and died.

The story given by the defendant-appellant is hard to believe, especially that which explains how the safety locked happened to be released and the trigger pulled and the gun fired. The deceased could not have had the rash imprudence of approaching an armed man just to grab the latter's gun. That given by the witnesses for the prosecution appears to be more in accord with the ordinary conduct of men. But the post-mortem findings corroborate completely this theory, and conclusively prove the falsity of the theory of the defense. In the first place, the lack of powder traces on the undershirt around the hole caused by the bullet prove that appellant and victim were not close to each other when the shot was fired. In the second place, the direction of the wound on the chest of the victim, that is from the left to the right side, proves that appellant and victim could not have been face to face, struggling for the possession of the rifle, as claimed by appellant. Lastly, nothing was shown to prove that the eye-witness who testified for the prosecution did not testify truthfully either because they were partial to the deceased and were enemies of the appellant. On the other hand, the witnesses for appellant were fellow soldiers whose esprit de corps must have induced them to protect their colleagues, the appellant, and save him at any cost even to the extent of falsifying the truth.

The lower court found that the crime was committed with the aggravating circumstances of evident premeditation and treachery, offset by the mitigating circumstance of voluntary surrender. There is no doubt in our mind that treachery attended the commission of the offense because the appellant shot the deceased after calling the latter by name and as the latter was turning towards the accused, unprepared to defend himself against the sudden attack of the appellant. This aggravating circumstance qualifies the crime. We do not believe, however, as the trial court does, that evident premeditation was present and attended the shooting. There is no evidence to show that the appellant had known that his victim was going to the dance hall in the evening in question; neither was there any other evidence to prove this aggravating circumstance. The Solicitor General also believed that the aggravating circumstance. The Solicitor General also believed that the aggravating circumstance of evident premeditation is not sufficiently proved. On the other hand, the mitigating circumstance of voluntary surrender is admitted by both sides. Under the circumstances, the crime is that of murder qualified by the aggravating circumstance of treachery and the mitigating circumstance of voluntary surrender. The penalty prescribed for the offense must therefore be imposed in its medium degree, i. e., reclusion perpetua.

Wherefore, the judgment appealed from should be, as it hereby is, affirmed. With costs.

Bengzon, Montemayor, Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, and Gutierrez David, JJ., concur.

R E S O L U T I O N

September 30, 1960

LABRADOR, J.:

On motion of defendant-appellant, which we find well-founded, the dispositive part of the decision in this case is hereby modified to read as follows:

The lower court found that the crime was committed with the aggravating circumstances of evident premeditation and treachery, offset by the mitigating circumstances of voluntary surrender. There is no doubt in our mind that treachery attended the commission of the offense because the appellant shot the deceased after calling the latter by name and as the latter was turning towards the accused, unprepared to defend himself against the sudden attack of the appellant. This aggravating circumstance qualifies the crime. We do not believe, however, as the trial court does, that evident premeditation was present and attended the shooting. There is no evidence to show that appellant had known that his victim was going to the dance hall in the evening in question; neither was there any other evidence to prove this aggravating circumstance. The Solicitor General also believes that the aggravating circumstance of evident premeditation is not sufficiently proved. On the other hand, the mitigating circumstance of voluntary surrender is admitted by both sides. Under the circumstances, the crime is that of murder qualified by the aggravating circumstance of treachery and the mitigating circumstance of voluntary surrender. The penalty prescribed for the offense must therefore be imposed in its minimum degree.

Wherefore, the judgment appealed from should be, as it hereby is, modified, and the imprisonment reduced to an indeterminate sentence which shall not be less than twelve years of prision mayor nor more than 17 years, 4 months and 1 day of reclusion temporal. With costs.

Paras, C.J. Bengzon, Padilla, Bautista Angelo, Concepcion, Reyes, J. B. L., Barrera, Gutierrez David, Paredes, and Dizon, JJ., concur. .

SECOND DIVISION

[ G.R. No. 120496. July 17, 1996

FIVE STAR BUS CO., INC. and CARLOS SALONGA, Petitioners, vs. COURT OF APPEALS, REGIONAL TRIAL COURT, KALOOKAN CITY, BR. 129 and PEDRO and LYDIA SANTOS, Respondents.

D E C I S I O N

PUNO, J.:

This petition for review on certiorari seeks to set aside the decision of the Court of Appeals 1 in CA-G.R. CV No. 40969 awarding to private respondents Pedro and Lydia Santos damages in the total amount of P122,000.00 for the death of their son in a vehicular accident; or, in the alternative, to modify said decision by deleting the award of moral damages of P50,000.00.

This case arose from Civil Case No. C-15500 for breach of contract of carriage and damages filed by private respondents on July 15, 1992 before the Regional Trial Court, Branch 129, Kalookan City against petitioners Five Star Bus Co., Inc. and Carlos Salonga. 2 The Santos spouses sought indemnification for the death of their twenty-two year old son, Joey Santos, who died on April 27, 1992 aboard a passenger bus owned and operated by petitioner Five Star and driven by petitioner Salonga. They alleged that their son rode the bus from Pangasinan to Manila when due to the "gross and wanton negligence, recklessness and imprudence" of the bus driver, it hit an oncoming trailer truck along the Urdaneta, Pangasinan Highway; that the impact resulted in the death of two bus passengers, one of whom was Joey Santos; and that petitioner refused to pay them damages as heirs of the deceased. Respondents prayed for P50,000.00 for the death of their son, P50,000.00 for moral damages, P20,000.00 for funeral expenses and P20,000.00 for attorney's fees.

On September 16, 1992, petitioners answered the complaint alleging that it was the negligence of the driver of the trailer truck which encroached on the oncoming bus' lane that caused the mishap resulting in Joey's death.

On September 22, 1992, the trial court set the pre-trial of the case on October 15, 1992 and instructed counsels for both parties to notify their respective clients and to file their pre-trial briefs. The pre-trial notice reads as follows:

"ORDER(Pre-Trial Notice)

Issues in this case being joined, the pre-trial conference under Section 1, Rule 20 of the Rules Of Court, in relation to Circular 1-89 of the Supreme Court, is set for October 15, 1992 at 8:30 A. M.

Counsels are instructed to notify their respective clients. Counsels are also reminded of the mandatory filing of pre-trial briefs at least 3 days before the pre-trial date.

SO ORDERED.

Given this 22nd day of September 1992 at the City of Kalookan, Metro Manila.

(Signed)BAYANI S. RIVERA

Judge" 3

Copies of the pre-trial notice were sent to Atty. Emerico Lomibao, counsel for respondents and Atty. Arnel Naidas, counsel for petitioners.

On October 15, 1992, the day of the pre-trial, petitioners and their counsel failed to appear. Neither did they file a pre-trial brief. On motion by private respondents' counsel, the trial court declared petitioners as in default and scheduled the reception of their evidence on October 30, 1992, thus;

"ORDER

When this case was called for pre-trial conference this morning, neither defendants nor their counsel appeared in Court, despite previous notice.

Counsel for the plaintiffs moved that the defendants be declared as in default for failure to appear today despite notice.

The motion is well-taken. Not only did defendants fail to appear despite previous notice. They have likewise failed to file a pre-trial brief, pursuant to Circular No. 1-89 of the Supreme Court.

WHEREFORE, premises considered, defendants are declared as in default. Accordingly, plaintiffs shall present evidence ex-parte on October 30, 1992 at 8:30 A.M.

Counsel for plaintiffs is notified in open court.

Send a copy of this order to counsel for defendants.

SO ORDERED.

Given in open hearing this 15th day of October 1992 at the City of Kalookan, Metro Manila.

(Signed)BAYANI S. RIVERA

Judge" 4

As scheduled, on October 30, 1992, respondent Lydia Santos testified together with Roger Santos, a co-passenger of the deceased. Documents in support of their testimonies were also presented.

On November 4, 1992, the trial court rendered a decision in favor of respondents, awarding them as follows:

"WHEREFORE, premises considered, judgment is hereby rendered in favor of plaintiffs and against defendant Five Star Bus Co. Inc, as follows:

1. Ordering defendant Five Star Bus Co., Inc. to pay plaintiffs compensatory damages in the sum of P50,000.00;

2. Ordering defendant Five Star Bus Co., Inc. to pay plaintiffs actual damages (funeral expenses) in the amount of P12,000.00;

3. Ordering defendant Five Star Bus Co., Inc. to pay plaintiffs' lawyer (Atty. Emerico B. Lomibao) the sum of P10,000.00 as attorney's fees; and

4. Ordering defendant Five Star Bus Co., Inc. to pay the costs of the suit.

SO ORDERED.

Given this 4th day of November 1992 at the City of Kalookan, Metro Manila.

(Signed)BAYANI S. RIVERA

Judge" 5

It appears that on the day of promulgation of the trial court's decision, the law firm of Vivar, Lopez and Associates entered its appearance as counsel for petitioners.

On November 10, 1992, a motion to set aside the order of default of October 15, 1992 was filed by Atty, Romulo Lopez of Vivar, Lopez and Associates. He alleged that Atty. Arnel Naidas, former counsel of petitioners to whom pre-trial notice was sent, resigned as petitioner Five Star's house counsel on September 30, 1992, and that their law firm's services were engaged by petitioner much later and the records of the case were delivered to them only on October 28, 1992, or days after the pre-trial conference.

On November 18, 1991, petitioners also filed a motion for reconsideration of the court's decision.

In an order dated December 10, 1992, the trial court denied both motions to set aside the order of default and for reconsideration. 6

Petitioners appealed to the Court of Appeals.

On April 28, 1995, the Court of Appeals affirmed the decision of the trial court but added thereto an award of P50,000.00 for moral damages, as follows:

"WHEREFORE, except as to the additional award of P50,000.00 as and for moral damages, the Decision of November 4, 1992 of the RTC-Kalookan City, Branch 129 in Civil Case No. C- 15500, is hereby AFFIRMED. Costs against defendants Five Star Bus Co., Inc. and Carlos Salonga." 7

Before us, petitioners raise the following errors:

"I

THE LOWER COURT ERRED IN DECLARING DEFENDANTS-APPELLANTS (PETITIONERS) HEREIN AS IN DEFAULT, ALLOWING EX-PARTE PRESENTATION OF EVIDENCE AND ORDERING PETITIONER TO PAY PLAINTIFFS (RESPONDENTS) COMPENSATORY DAMAGES IN THE SUM OF FIFTY THOUSAND PESOS (P50,000.00), ACTUAL DAMAGES (FUNERAL EXPENSES) IN THE AMOUNT OF TWELVE THOUSAND PESOS (P12,000.00) AND TO PAY PRIVATE RESPONDENTS' LAWYER THE SUM OF TEN THOUSAND PESOS (P10,000.00) AS ATTORNEY'S FEES, ARE ALL NULL AND VOID, BEING CONTRARY TO AND INCONSISTENT WITH THE RULES OF COURT, EXISTING JURISPRUDENCE ON THE MATTER, AND

CONSTITUTIONAL PROVISION ON DUE PROCESS.

II

THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE REGIONAL TRIAL COURT, KALOOKAN CITY, BRANCH 129 AND GRANTING ADDITIONAL AWARD OF FIFTY THOUSAND PESOS (P50,000.00) AS AND FOR MORAL DAMAGES." 8

We find the petition partly meritorious.

We reject petitioners' claim that the trial court erred in declaring them as in default for failure to appear at the pre-trial conference when they, as parties, were never notified thereof.

We have ingrained the rule that when the court schedules a case for pre-trial, notices must be served on the party separately from his counsel which may be made directly to both party and counsel. It is preferred, however, that service of such notice on a party be made through or care of his counsel at counsel's address "with the express imposition upon counsel of the obligation of notifying the party of the date, time and place of pre-trial conference."' 9 It is the duty of counsel upon whom a pre-trial notice is served to see to it that his client receives such notice and attends the pre-trial, otherwise, he will be liable for grave administrative disciplinary action. 10

In the instant case, the notice of pre-trial was sent to the counsels of both parties with the express instruction that they notify their respective clients of the conference. Atty. Naidas received the notice on September 28, 1992, 11 i.e., seventeen (17) days before the scheduled conference and two (2) days before his resignation as house counsel of petitioner Five Star. He had ample time to notify petitioners of the pre-trial conference.

Atty. Naidas may have already resigned on the day of the pre-trial, but as far as the trial court was concerned, he continued to be petitioners' counsel of record since no withdrawal of appearance had been filed by him. Having duly notified them of the pre-trial, the trial court did not err in declaring petitioners as in default. They were bound by the negligence of their counsel.

We also hold that after declaring a party as in default or non-suited, the trial court is not duty-bound to receive evidence ex-parte on the very same day it issued the default or non-suit order. The hearing that petitioners failed to attend was a pre-trial; pre-trial and trial on the merits are usually held on separate days to enable the parties to prepare for trial. 12 To be sure, petitioners have no cause to complain for it was to their advantage that the trial court scheduled the reception of respondents' evidence fifteen (15) days after its pre-trial date. The time gap gave them the opportunity to move for reconsideration of the default order before presentation of respondents' evidence.

We also reject petitioners' argument that the trial court decided the case with undue haste simply because it promulgated its decision four (4) days after receiving respondents' evidence. The records show that the issues of the case were simple and the basic evidence consisted of the testimonies of two witnesses which were relatively short.

We agree, however, with petitioners' contention that the additional award of moral damages should not have been granted by the Court of Appeals because private respondents did not appeal the decision of the trial court.

Fairness dictates that a party who has not appealed from a judgment of the trial court is bound by the terms of the judgment. We reiterate the rule that an appellee, who is not an appellant, may assign errors in his brief where his purpose is to maintain the judgment on other grounds, but he may not do so if his purpose is to have the judgment modified or reversed, in which case he must appeal. 13

IN VIEW WHEREOF, the decision of the Court of Appeals in CA-G.R. CV No. 40969 is affirmed with the modification that the award of P50,000.00 for moral damages is deleted.

No cost.

SO ORDERED.

Regalado (Chairman), Romero, Mendoza, and Torres, Jr., JJ., concur.

138518. December 15, 2000]

MARCELINA GACUTANA-FRAILE, petitioner, vs. ANGEL T. DOMINGO, BENJAMIN T. DOMINGO, ATTY. JORGE PASCUA AND THE PRESIDING JUDGE, RTC BRANCH 33, GUIMBA, NUEVA ECIJA, respondents.

D E C I S I O N

PUNO, J.:

Does a lawyer's bungling of a case amount to extrinsic fraud sufficient to annul judgment?

The case at bar is a petition for review of the Court of Appeals resolutions dated March 10, 1999 and April 29, 1999 denying petitioner Fraile's petition for annulment of judgment [1]

rendered by the respondent judge of Branch 33, Regional Trial Court (RTC) of Guimba, Nueva Ecija.

The dispute over the ownership of a parcel of land in Triala, Guimba, Nueva Ecija measuring 15 hectares, 2 ares and 39 centares spurred the present controversy.

The facts show that on March 29, 1996, petitioner Fraile filed a civil case for Quieting of Title and Damages against private respondents Angel T. Domingo and Benjamin T. Domingo, involving three parcels of land registered in her name under Transfer Certificates of Title (TCT) Nos. NT-229541, NT-229542 and NT-229543 of the Registry of Deeds of Nueva Ecija. The case was raffled to Branch 33 of the RTC of Guimba, Nueva Ecija and docketed as Civil Case No. 879-G. On August 11, 1997, while Case No. 879-G was pending, the private respondents Domingos also filed a case for Quieting of Title against petititioner Fraile involving the same parcels of land. The latter case was also assigned to the respondent judge and docketed as Civil Case No. 955-G.

Petitioner Fraile hired private respondent Atty. Jorge Pascua as counsel for both Civil Cases Nos. 879-G and 955-G. On September 1, 1997, Atty. Pascua filed a Motion to Dismiss Civil Case No. 955-G not on the ground of the pendency of Civil Case No. 879-G involving the same parties, subject matter and issues, but because of a decision earlier rendered by the RTC of Guimba, Nueva Ecija, reconstituting Fraile's titles over the subject parcels of land. Respondent judge deferred ruling on the motion and instead ordered the joint hearing of the cases. During the pre-trial conference, Atty. Pascua prevailed upon the petitioner Fraile to withdraw her Motion to Dismiss Civil Case No. 955-G as it would only delay the resolution of the case.

During the joint hearings, Atty. Pascua agreed to a continuous trial and the hearings for both cases were finished within four days, or from February 16, 1998 to February 19, 1998. Atty. Pascua also allowed the private respondent Domingos to present their evidence ahead of the petitioner even if Fraile filed her case before the Domingos filed theirs.

Subsequently, on June 2, 1998, the respondent judge rendered a decision in favor of the Domingos.[2] Atty. Pascua received a copy of the decision and on the last day for filing an appeal, filed a Notice of Appeal and Motion for Reconsideration of the adverse decision. In an Order dated July 23, 1998, respondent judge dismissed the Notice of Appeal and denied the Motion for Reconsideration for lack of proof of service to the adverse party and written explanation why service or filing thereof was not done personally, in violation of Rule 13 of the 1997 Rules of Civil Procedure.[3] The pleadings likewise lacked a notice of hearing. The Notice

of Appeal also failed to comply with Sec. 5, Rule 41 of the 1997 Rules of Civil Procedure because it failed to specify the court to which the appeal was being taken .[4] Docketing fees were also not seasonably paid upon filing of the Notice of Appeal. [5] On August 8, 1998, Atty. Pascua filed another Motion for Reconsideration, but the motion was again denied for the same formal infirmities of the first Motion for Reconsideration.

As Atty. Pascua did not challenge the Orders dated July 23, 1998 and August 8, 1998, the trial court issued on October 15, 1998 a Writ of Execution of the June 2, 1998 decision. Consequently, petitioner Fraile's TCT's over the subject parcels of land were cancelled by the Register of Deeds of Nueva Ecija. Appalled by the outcome of her cases, Fraile hired another lawyer, Atty. Renato M. Esguerra, and subsequently filed with the Court of Appeals a petition for annulment of the June 2, 1998 judgment citing the procedural lapses allegedly amounting to extrinsic fraud committed by her previous counsel, Atty. Pascua, viz:[6]

"The manner by which the cases were handled by petitioner's counsel, Atty. Jorge A. Pascua, by not filing a Motion to Dismiss Civil Case No. 955-G despite the pendency of Civil Case No. 879-G involving the same parties and the same subject matter; in filing a motion to dismiss instead based on an unfounded ground which is the reconstitution of petitioner's title which motion was later on withdrawn by petitioner's counsel himself; in consenting for (sic) a joint-trial which only lasted for four (4) days; in allowing private respondents Angel T. Domingo and Benjamin T. Domingo in presenting (sic) their evidence ahead of the petitioner despite the fact that their case was filed later than the case filed by herein petitioner; in filing a defective notice of appeal and defective motions for reconsideration and in not elevating nor advising herein petitioner to elevate said orders to the higher court for review are not MERE negligence on the part of petitioner's counsel but said acts constitute EXTRINSIC FRAUD deliberately done, in connivance with private respondents Angel and Benjamin Domingo, designed to defeat the cause of herein petitioner and to deprive her of her right to due process." (emphasis supplied)[7]

On March 10, 1999, the Court of Appeals dismissed the petition on the ground that the negligence of Atty. Pascua did not constitute extrinsic fraud, the remedy of Petition for Relief was not used in violation of Sec. 2, Par. 2, Rule 47 of the 1997 Rules of Civil Procedure, [8]

and affidavits of witnesses supporting her cause of action were not submitted by petitioner as required by Sec. 4, Rule 47 of the 1997 Rules of Civil Procedure. [9] The petitioner filed a Motion for Reconsideration of the March 10, 1999 resolution, but this was likewise denied for lack of merit in a resolution promulgated on April 29, 1999. Hence, this petition for review on certiorari assailing the appellate court's March 10, 1999 and April 29, 1999 resolutions with the following assignment of errors:

"I

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT THE ACTS OR OMISSIONS OR PROCEDURAL LAPSES BY ATTY. JORGE PASCUA IN THE HANDLING OF PETITIONER'S CASE ARE NOT GROSS AND PALPABLE ENOUGH AS TO CONSTITUTE EXTRINSIC FRAUD.

II

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE PETITIONER SHOULD HAVE FIRST AVAILED OF AND FILED A PETITION FOR RELIEF FROM JUDGMENT UNDER RULE 38 OF THE 1997 RULES OF CIVIL PROCEDURE.

III

THE HONORABLE COURT APPEALS (SIC) GRAVELY ERRED IN NOT CONSIDERING THE VERIFICATION AND EVIDENCE ON RECORD AS SUBSTANTIAL COMPLIANCE WITH

SECTION 4 RULE 47 OF THE 1997 RULES OF CIVIL PROCEDURE."[10]

The applicable rule is Rule 47 of the 1997 Rules of Civil Procedure, viz:

"Section 1. Coverage. - This Rule shall govern the annulment by the Court of Appeals of judgments or final orders and resolutions in civil actions of Regional Trial Courts for which the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner.

Section 2. Grounds for annulment. - The annulment may be based only on the grounds of extrinsic fraud and lack of jurisdiction.

Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion for new trial or petition for relief.

xxx

Section 4. Filing and contents of petition. - The action shall be commenced by filing a verified petition alleging therein with particularity the facts and the law relied upon for annulment, as well as those supporting the petitioner's good and substantial cause of action or defense, as the case may be.

xxx

The petitioner shall also submit together with the petition affidavits of witnesses or documents supporting the cause of action or defense . . . "

Applying the foregoing rule to the case at bar, we find that petitioner Fraile's allegation of extrinsic fraud committed by her former counsel, Atty. Pascua, and the evidence presented in support thereof do not warrant a reversal of the appellate court's March 10, 1999 and April 29, 1999 resolutions.

It is well-settled that "(i)n order for fraud to serve as basis for annulment of a judgment, it must be extrinsic or collateral in character, otherwise there would be no end to litigations. Extrinsic fraud refers to any fraudulent act of the prevailing party which is committed outside the trial of the case, whereby the defeated party has been prevented from exhibiting fully his side of the case, by fraud or deception practised on him by his opponent." [11] Thus, it "refers to some act or conduct of the prevailing party which has prevented the aggrieved party from having a trial or presenting his case to the court, or was used to procure judgment without a fair submission of the controversy." (emphasis supplied) [12] This Court has not just once ruled that the fraud must be committed by the adverse party and not by one's own counsel.[13]

Petitioner's allegation that the acts of Atty. Pascua constitute extrinsic fraud "deliberately done in connivance with private respondents Angel and Benjamin Domingo, designed to defeat the cause of herein petitioner and to deprive her of her right to due process" (emphasis supplied)[14] is merely a conclusion drawn by petitioner Fraile and does not find support in the evidence on record. To impute negligence on her counsel is one thing, to prove that such negligence was in collusion with the private respondents is another. We cannot therefore subscribe to petitioner Fraile's contention.

On the other hand, the doctrinal rule is that the negligence of counsel binds the client because otherwise, "there would never be an end to a suit so long as new counsel could be employed who could allege and show that prior counsel had not been sufficiently diligent, or experienced, or learned."[15] We have, however, carved out exceptions to this rule as where the reckless or gross negligence of counsel deprives the client of due process of law, or where

the application of the rule will result in outright deprivation of the client's liberty or property or where the interests of justice so require and relief ought to be accorded to the client who suffered by reason of the lawyer's gross or palpable mistake or negligence. [16] What must be determined therefore is whether the instant case falls under the above exceptions.

The Court of Appeals found that while the acts or omissions of Atty. Pascua may have been "indicative of professional lapses, inefficiency, carelessness and negligence," they constituted merely simple negligence and not gross or palpable negligence amounting to extrinsic fraud which would deprive her of her day in court.[17]

We agree. It is worth noting that while the petitioner's cases were pending before the trial court, Atty. Pascua filed the required pleadings and presented evidence in support of petitioner's cause. The respondent judge rendered a 15-page decision based on a careful and painstaking scrutiny of the evidence presented by petitioner and private respondents. Petitioner may have doubted the soundness of certain acts of Atty. Pascua such as withdrawing the motion to dismiss Civil Case No. 955-G in order not to delay the proceedings, allowing the private respondents to present evidence ahead of her, and agreeing to a continuous trial which lasted for four days. Atty. Pascua's negligence in filing a defective notice of appeal and defective motions for reconsideration and in not elevating nor advising herein petitioner to elevate adverse orders to the higher court for review is undisputed, but it cannot be said that there was "sheer absence of real effort on his part to defend his client's cause" amounting to gross negligence.[18] Nor was petitioner Fraile outrightly deprived of her property as she was given ample opportunity to adduce evidence on her behalf and to meet the evidence of the private respondents. Absent any showing of irregularity in the proceedings, the continuous hearings which were finished in four days was not improper and was in fact laudable and consistent with the policy of speedy administration of justice. It cannot be gainsaid that the proceedings in the trial court satisfied the requirement that the petitioner be afforded due process of law.[19] The "essence of due process is to be found in the reasonable opportunity to be heard and submit any evidence one may have in support of one's defense. . . Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due process." [20] Petitioner's cause to annul the June 2, 1998 decision of respondent judge is left without a leg to stand on. The Court of Appeals was therefore correct in denying petitioner Fraile's petition to annul the June 2, 1998 decision.

Anent petitioner's second and third assignment of errors, we find it unnecessary to discuss the same, having ruled that petitioner's allegation of extrinsic fraud as basis for a petition for relief or annulment of judgment has no merit.

A last word. Apart from the mandate of Canon 18 of the Code of Professional Responsibility that "(a) lawyer shall serve his client with competence and diligence," the confidence and trust reposed by the client on his lawyer ought to put him always on his toes in protecting the interests of his client "as a good father of a family would be protective of his own family."[21] This responsibility of the lawyer cannot be overemphasized as ordinary laymen are not expected to be conversant with the intricacies of the law. A lawyer's failure to live up to these dictates of the canons of the legal profession and of human relations make him answerable to both his profession and his client. This decision is therefore without prejudice to whatever cause of action petitioner Fraile may have in law against her former counsel, Atty. Pascua.

IN VIEW WHEREOF, the petition is DENIED for lack of merit. The assailed Resolutions

of the Court of Appeals are AFFIRMED in toto. No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Kapunan, Pardo, and Ynares-Santiago, JJ., concur

FIRST DIVISION

G.R. No. 115106. March 15, 1996

ROBERTO L. DEL ROSARIO, Petitioner, vs. COURT OF APPEALS AND JANITO CORPORATION, Respondents.

D E C I S I O N

BELLOSILLO, J.:

Roberto del Rosario petitions this Court to review the decision of the Court of Appeals 1 which set aside the order of the Regional Trial Court of Makati granting a writ of preliminary injunction in his favor.

The antecedents: On 18 January 1993 petitioner filed a complaint for patent infringement against private respondent Janito Corporation. 2 Roberto L. del Rosario alleged that he was a patentee of an audio equipment and improved audio equipment commonly known as the sing-along system or karaoke under Letters Patent No. UM-5269 dated 2 June 1983 as well as Letters Patent No. UM-6237 dated 14 November 1986 issued by the Director of Patents. The effectivity of both Letters Patents was for five (5) years and was extended for another five (5) years starting 2 June 1988 and 14 November 1991, respectively. He described his sing-along system as a handy multi-purpose compact machine which incorporates an amplifier speaker, one or two tape mechanisms, optional tuner or radio and microphone mixer with features to enhance ones voice, such as the echo or reverb to stimulate an opera hall or a studio sound, with the whole system enclosed in one cabinet casing.

In the early part of 1990 petitioner learned that private respondent was manufacturing a sing-along system bearing the trademark miyata or miyata karaoke substantially similar if not identical to the sing-along system covered by the patents issued in his favor. Thus he sought from the trial court the issuance of a writ of preliminary injunction to enjoin private respondent, its officers and everybody elsewhere acting on its behalf, from using, selling and advertising the miyata or miyata karaoke brand, the injunction to be made permanent after trial, and praying for damages, attorneys fees and costs of suit.

On 5 February 1993 the trial court temporarily restrained private respondent from manufacturing, using and/or selling and advertising the miyata sing-along system or any sing-along system substantially identical to the sing-along system patented by petitioner until further orders.

On 24 February 1993 the trial court issued a writ of preliminary injunction upon a bond on the basis of its finding that petitioner was a holder of a utility model patent for a sing-along system and that without his approval and consent private respondent was admittedly manufacturing and selling its own sing-along system under the brand name miyata which was substantially similar to the patented utility model 3 of petitioner.

Private respondent assailed the order of 24 February 1993 directing the issuance of the writ by way of a petition for certiorari with prayer for the issuance of a writ of preliminary injunction and a temporary restraining order before respondent Court of Appeals.

On 15 November 1993 respondent appellate court granted the writ and set aside the questioned order of the trial court. It expressed the view that there was no infringement of the patents of petitioner by the fact alone that private respondent had manufactured the miyata karaoke or audio system, and that the karaoke system was a universal product manufactured, advertised and marketed in most countries of the world long before the patents were issued to petitioner. The motion to reconsider the grant of the writ was denied; 4 hence, the instant petition for review.

This petition alleges that: (a) it was improper for the Court of Appeals to consider questions of fact in a certiorari proceeding; (b) the Court of Appeals erred in taking judicial notice of private respondents self-serving presentation of facts; (c) the Court of Appeals erred in disregarding the findings of fact of the trial court; and, (d) there was no basis for the Court of Appeals to grant a writ of preliminary injunction in favor of private respondent. 5

Petitioner argues that in a certiorari proceeding, questions of fact are not generally permitted the inquiry being limited essentially to whether the tribunal has acted without or in excess of jurisdiction or with grave abuse of discretion; that respondent court should not have disturbed but respected instead the factual findings of the trial court; that the movant has a clear legal right to be protected and that there is a violation of such right by private respondent. Thus, petitioner herein claims, he has satisfied the legal requisites to justify the order of the trial court directing the issuance of the writ of injunction. On the other hand, in the absence of a patent to justify the manufacture and sale by private respondent of sing-along systems, it is not entitled to the injunctive relief granted by respondent appellate court.

The crux of the controversy before us hinges on whether respondent Court of Appeals erred in finding the trial court to have committed grave abuse of discretion in enjoining private respondent from manufacturing, selling and advertising the miyata karaoke brand sing-along system for being substantially similar if not identical to the audio equipment covered by letters patent issued to petitioner.

Injunction is a preservative remedy for the protection of substantive rights or interests. It is not a cause of action in itself but merely a provisional remedy, an adjunct to a main suit. The controlling reason for the existence of the judicial power to issue the writ is that the court may thereby prevent a threatened or continuous irremediable injury to some of the parties before their claims can be thoroughly investigated and advisedly adjudicated. It is to be resorted to only when there is a pressing necessity to avoid injurious consequences which cannot be remedied under any standard of compensation. The application of the writ rests upon an alleged existence of an emergency or of a special reason for such an order before the case can be regularly heard, and the essential conditions for granting such temporary injunctive relief are that the complaint alleges facts which appear to be sufficient to constitute a cause of action for injunction and that on the entire showing from both sides, it appears, in view of all the circumstances, that the injunction is reasonably necessary to protect the legal rights of plaintiff pending the litigation. 6

A preliminary injunction may be granted at any time after the commencement of the action and before judgment when it is established that the defendant is doing, threatens, or is about to do, or is procuring or suffering to be done, some act probably in violation of the plaintiffs rights. Thus, there are only two requisites to be satisfied if an injunction is to issue, namely, the existence of the right to be protected, and that the facts against which the injunction is to be directed are violative of said right. 7

For the writ to issue the interest of petitioner in the controversy or the right he seeks to be protected must be a present right, a legal right which must be shown to be clear and positive.

In this regard Sec. 55 of R.A. 165 as amended, known as The Patent Law, provides

Sec. 55. Design patents and patents for utility models. - (a) Any new, original, and ornamental design for an article of manufacture and (b) new model or implements or tools or of any Industrial product or of part of the same, which does not possess the quality of invention but which is of practical utility by reason of its form, configuration, construction or composition, may be protected by the author thereof, the former by a patent for a design and the latter by a patent for a utility model, in the same manner and subject to the same provisions and requirements as relate to patents for inventions insofar as they are applicable, except as otherwise herein provide x x x

Admittedly, petitioner is a holder of Letters Patent No. UM-5629 dated 2 June 1985 issued for a term of five (5) years from the grant of a Utility Model herein described

The construction of an audio equipment comprising a substantially cubical casing having a window at its rear and upper corner fitted with a slightly inclined control panel, said cubical (casing) having a vertical partition wall therein defining a rear compartment and a front compartment, and said front compartment serving as a speaker baffle; a transistorized amplifier circuit having an echo section and writhed in at least the printed circuit boards placed inside said rear compartment of said casing and attached to said vertical partition wall, said transistorized amplifier circuit capable of being operated from outside, through various controls mounted

on said control panel of such casing; a loud speaker fitted inside said front compartment of said casing and connected to the output of the main audio amplifier section of said transistorized amplifier circuit and a tape player mounted on the top wall of said casing and said tape player being connected in conventional manner to said transistorized amplifier circuit. 8

Again, on 14 November 1986 petitioner was granted Letters Patent No. UM-6237 for a term of five (5) years from the grant of a Utility Model described as

In an audio equipment consisting of a first cubical casing having an opening at its rear and upper rear portion and a partition therein forming a rear compartment and a front compartment serving as a loud speaker baffle, a control panel formed by vertical and horizontal sections, a transistorized amplifier circuit wired in at least two printed circuit boards attached at the back of said control panel, a first loud speaker fitted inside said first compartment of such first casing and connected to the output of said transistorized amplifier circuit; the improvement wherein said control panel being removably fitted to said first cubical casing and further comprises a set of tape recorder and tape player mounted on the vertical section of said control panel and said recorder and player are likewise connected to said transistorized amplifier circuit; a second cubical casing having an opening at its rear, said second cubical casing having (being ?) provided with a vertical partition therein defining a rear compartment and a front compartment, said rear compartment being provided with a door and enclosing therein a set of tape racks and said front compartment serving as loud speaker baffle, said second cubical casing being adapted to said first cubical casing so that said first and second casings are secured together in compact and portable form; and a second loud speaker fitted inside said front compartment of said casing and connected to the output of said amplifier circuit. 9

The terms of both Letters Patents were extended for another five (5) years each, the first beginning 2 June 1988 and the second, 14 November 1991.

The Patent Law expressly acknowledges that any new model of implements or tools of any industrial product even if not possessed of the quality of invention but which is of practical utility is entitled to a patent for utility model. 10 Here, there is no dispute that the letters patent issued to petitioner are for utility models of audio equipment.

In issuing, reissuing or withholding patents and extensions thereof, the Director of Patents determines whether the patent is new and whether the machine or device is the proper subject of patent. In passing on an application, the Director decides not only questions of law but also questions of fact, i.e. whether there has been a prior public use or sale of the article sought to be patented. 11 Where petitioner introduces the patent in evidence, if it is in due form, it affords a prima facie presumption of its correctness and validity. The decision of the Director of Patents in granting the patent is always presumed to be correct, and the burden then shifts to respondent to overcome this presumption by competent evidence. 12

Under Sec. 55 of The Patent Law a utility model shall not be considered "new" if before the application for a patent it has been publicly known or publicly used in this country or has been described in a printed publication or publications circulated within the country, or if it is substantially similar to any other utility model so known, used or described within the country. Respondent corporation failed to present before the trial court competent evidence that the utility models covered by the Letters Patents issued to petitioner were not new. This is evident from the testimony of Janito Cua, President of respondent Janito Corporation, during the hearing on the issuance of the injunction, to wit -

Q. Mr. Cua, you testified that there are (sic) so many other companies which already have (sic) the sing-along system even before the patent application of Mr. del Rosario and as a matter of fact you mentioned Sanyo, Sony and Sharp, is that right?

A. Musicmate and Asahi.

Q. Now do you recall that your lawyer filed with this Honorable Court an Urgent Motion to Lift Temporary Restraining Order of this Honorable Court. I am sure you were the one who provided him with the information about the many other companies selling the sing-along system, is that right? These 18 which you enumerated here.

A. More than that because x x x

Q. Now you will agree with me that in your statement Sharp you put the date as 1985 agreed?

A. No.

Q. You mean your lawyer was wrong when he put the word Sharp 1985?

A. Maybe I informed him already.

xxx xxx xxx

Q. You mean your lawyer was wrong in alleging to this Court that Sharp manufactured and sold (in) 1985 as found in the Urgent Motion?

A. Since it is urgent it is more or less.

Q. The same also with Sanyo 1985 which you put, more or less?

A. Sanyo is wrong.

Q. It is not 1985?

A. Sanyo is 1979 I think.

Q. So this is also wrong. Panasonic 1986 is also wrong?

A. Panasonic I think.

Q. So you dont think this is also correct.

A. The date?

Q. So you dont think also that this allegation here that they manufactured in 1986 is correct?

A. Wrong. Earlier.

Q. National by Precision Electronic 1986 this is also wrong?

A. I think earlier.

Q. So that means all your allegations here from 2 to 5 are wrong? OK. By Philipps Philippines 1986, this is also correct or wrong?

A. More or less. We said more or less.

Q. Nakabutshi by Asahi Electronics that is also wrong?

A. No, that is 1979.

Q. Electone by DICO 1989 is this correct or wrong?

A. Correct. More or less.

Q. Skylers 1985 is that correct or wrong?

A. It is more or less because it is urgent. We dont have time to exact the date.

Q. Musicmate of G.A. Yupangco 1981 this is more or less? You are not also sure?

A. 95% sure.

Q. Now you are sure 1981.

A. This one because x x x

Q. Mr. Witness so you are now trying to tell this Honorable Court that all your allegations here of the dates in this Urgent Motion except for Musicmate which you are only 95% sure they are all wrong or they are also more or less or not sure, is that right?

A. More or less.

Q. Now do you have any proof, any advertisement, anything in writing that would show that all these instruments are in the market, do you have it?

A. No, I dont have it because x x x

Q. No. I am satisfied with your answer. Now Mr. Witness, you dont also have a proof that Akai instrument that you said was also in the market before 1982? You dont have any written proof. any advertisement?

A. I have the product.

Q. But you have not brought the product in (sic) this Honorable Court, right?

A. No. 13

As may be gleaned herein, the rights of petitioner as a patentee have been sufficiently established, contrary to the findings and conclusions of respondent Court of Appeals. Consequently, under Sec. 37 of The Patent law, petitioner as a patentee shall have the exclusive right to make, use and sell the patented machine, article or product for the purpose of industry or commerce, throughout the territory of the Philippines for the term of the patent, and such making, using or selling by any person without authorization of the patentee constitutes infringement of his patent.

Petitioner established before the trial court that respondent Janito Corporation was manufacturing a similar sing-along system bearing the trademark miyata which infringed his patented models. He also alleged that both his own patented audio equipment and respondents sing-along system were constructed in a casing with a control panel, the casing having a vertical partition wall defining the rear compartment from the front compartment, with the front compartment consisting of a loud speaker baffle, both containing a transistorized amplifier circuit capable of being operated from outside through various controls mounted on the control panel, and that both had loud speakers fitted inside the front compartment of the casing and connected to the output of the main audio amplifier section both having a tape recorder and a tape player mounted on the control panel with the tape recorder and tape player being both connected to the transistorized amplifier circuit. 14

Respondent Janito Corporation denied that there was any violation of petitioners patent rights, and cited the differences between its miyata equipment and petitioners audio equipment. But, it must be emphasized, respondent only confined its comparison to the first model, Utility Model No. 5269, and completely disregarded Utility Model No. 6237 which improved on the first. As described by respondent corporation, 15 these differences are

First. Under Utility Model 5269, the unit is a substantially cubical casing with a window at its rear and upper corner fitted with slightly inclined control panel, while the miyata equipment is a substantially rectangular casing with panel vertically positioned.

Second. Under Utility Model 5269, the cubical casing has a vertical partition wall defining a rear compartment and a front compartment serving as a speaker baffle, while the miyata equipment has no rear compartment and front compartment in its rectangular casing; it has only a front compartment horizontally divided into 3 compartments like a 3-storey building, the 1st compartment being a kit, the 2nd also the speaker, and the 3rd are kits.

Third. Under Utility Model No. 5269, a transistorized amplifier circuit with an echo section wired in at least 2 printed circuit boards is placed inside the rear compartment of the casing and attached to the vertical partition wall, the printed circuit board having 1 amplifier and 1 echo, while in the miyata equipment the amplifier is mainly IC (Integrated Circuit) - powered with 8 printed circuit boards almost all of which are IC controlled, with 1 amplifier with power supply, 1 main tuner, 1 equalizer (3-band), 1 IC controlled volume control, 1 echo IC, 1 tape pream, 1 instrument and 1 wireless microphone.

Fourth. Under Utility Model 5269, 4 printed circuits are placed inside the compartment of its casing attached to the vertical partition wall, while in the miyata, the 7 printed circuit boards (PCB) are attached to the front panel and 1 attached to the horizontal divider.

Fifth. Under Utility Model 5269, there are various controls mounted on the control panel of the casing, while in miyata, the various controls are all separated from the printed circuit boards and the various controls are all attached thereto.

Sixth. Under Utility Model 5269, a loud speaker fitted inside the front compartment of the casing is connected to the output of the main audio amplifier section of the transistorized amplifier circuit, while in miyata, there is no other way but to use 2 loud speakers connected to the amplifier.

Seventh. Under Utility Model 5269, a tape player is mounted on the top wall of the casing, while in miyata, 2 tape players are used mounted side by side at the front.

It is elementary that a patent may be infringed where the essential or substantial features of the patented invention are taken or appropriated, or the device, machine or other subject matter alleged to infringe is substantially identical with the patented invention. In order to infringe a patent, a machine or device must perform the same function, or accomplish the same result by identical or substantially identical means and the principle or mode of operation must be substantially the same. 16

It may be noted that respondent corporation failed to present before the trial court a clear, competent and reliable comparison between its own model and that of petitioner, and disregarded completely petitioners Utility Model No. 6237 which improved on his first patented model. Notwithstanding the differences cited by respondent corporation, it did not refute and disprove the allegations of petitioner before the trial court that: (a) both are used by a singer to sing and amplify his voice; (b) both are used to sing with a minus-one or multiplex tapes, or that both are used to play minus-one or standard cassette tapes for singing or for listening to; (c) both are used to sing with a minus-one tape and multiplex tape and to record the singing and the accompaniment; (d) both are used to sing with live accompaniment and to record the same; (e) both are used to enhance the voice of the singer using echo effect, treble, bass and other controls; (g) both are equipped with cassette tape decks which are installed with one being used for playback and the other, for recording the singer and the accompaniment, and both may also be used to record a speakers voice or instrumental playing, like the guitar and other instruments; (h) both are encased in a box-like cabinets; and, (i) both can be used with one or more microphones. 17

Clearly, therefore, both petitioners and respondents models involve substantially the same modes of operation and produce substantially the same if not identical results when used.

In view thereof, we find that petitioner had established before the trial court prima facie proof of violation of his rights as patentee to justify the issuance of a writ of preliminary injunction in his favor during the pendency of the main suit for damages resulting from the alleged infringement.

WHEREFORE, the Decision of the Court of Appeals dated 15 November 1993 is REVERSED and SET ASIDE and the Order of the trial court dated 24 February 1993 granting petitioner the writ of injunction is REINSTATED.

The trial court is directed to continue with the proceedings on the main action pending before it in order to resolve with dispatch the issues therein presented.

SO ORDERED.

Padilla (Chairman), Vitug, Kapunan, and Hermosisima, Jr., JJ., concur.

A.C. No. 4017 September 29, 1999

GATCHALIAN PROMOTIONS TALENTS POOL, INC., complainant, vs.ATTY. PRIMO R. NALDOZA, respondent.

 

PER CURIAM:

On April 19, 1993, Gatchalian Promotions Talents Pool, Inc., filed before this Court a Petition for disbarment against Attorney Primo R. Naldoza. The precursor of this Petition was the action of respondent, as counsel for complainant, appealing a Decision of the Philippine Overseas Employment Agency (POEA). In relation to the appeal, complainant asserts that respondent should be disbarred for the following acts:

1. Appealing a decision, knowing that the same was already final and executory

2. Deceitfully obtaining two thousand, five hundred and fifty-five US dollars (US$2,555) from complainant, allegedly for "cash bond" in the appealed case

3. Issuing a spurious receipt to conceal his illegal act 1

In his Answer, 2 respondent denies that he persuaded complainant to file an appeal. On the contrary, he asserts that it was the complainant who insisted on appealing the case in order to delay the execution of the POEA Decision. 3 He also controverts complainant's allegation that he asked for a cash bond and that he issued the fake receipt. 4

In a Resolution dated May 17, 1993, this Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.

The pertinent portions of the Complaint were summarized by the IBP in this wise:

Under its petition, complainant alleges that the respondent was given the task to defend the interest of the complainant corporation in POEA Case No. 8888-06-468, entitled Olano, et al. versus Gatchalian Promotions Talents Pool, Inc., et al.; that when the said case was resolved in favor of the complainant therein on October 5, 1992, the respondent Atty. Naldoza knowing fully well that the said decision had already become final and unappealable[,] through malpractice in [an] apparent desire to collect or to "bleed" his client of several thousand pesos of attorney's fees, convinced the complainant to appeal the case before the Supreme Court. Thus, on December 14, 1992, the respondent filed with the Supreme Court a Petition for Review which was docketed as G.R. No. 107984 and that two (2) days thereafter misrepresented to the complainant corporation that the complainant ha[d] to pay, which it did, [a] "Cash Bond" in UNITED STATES DOLLAR amounting to TWO THOUSAND FIVE HUNDRED FIFTY FIVE (U.S. $2,555.00) to the Supreme Court in order that the said appealed case could be heard or acted upon by the Supreme Court. The said amount was given to the respondent. 1âwphi1.nêt

. . . [S]ubsequently the complainant corporation came to know that the fees to be paid to the Supreme Court consist[ed] only of nominal filing and docket fees for such kind of appeal but in order to cover up respondent's misrepresentation, Atty. Naldoza presented complainant a fake xerox copy of an alleged Supreme Court receipt representing payment of U.S. $2,555.00.

Subsequent verification from the Supreme Court made by the complainant corporation revealed that the said receipt issued by the treasurer's office of the Supreme Court . . . [was] spurious, meaning a fake receipt. The said verification revealed that what was only paid by the respondent to the Supreme Court was the amount of P622.00 as shown by the enumerated legal fees of the Supreme Court Docket-Receiving Section showing the handwritten name of the respondent for purpose of showing that the

said computation was requested by and addressed to the respondent. 5 (citations omitted)

Meanwhile, a criminal case 6 for estafa based on the same facts was filed against herein respondent before the Regional Trial Court (RTC) of Makati City, Branch 141. Although acquitted on reasonable doubt, he was declared civilly liable in the amount of US$ 2,555.

Thereafter, respondent filed before the IBP a Manifestation with Motion to Dismiss on July 22, 1996, on the ground that he had already been acquitted in the criminal case for estafa. Complainant opposed the Motion. 7

On February 16, 1998, this Court received the IBP Board of Governors' Resolution, which approved the investigating commissioner's report 8 and recommendation that respondent be suspended from the practice of law for one (1) year. In his Report, Investigating Commissioner Plaridel Jose justified his recommendation in this manner:

. . . [R]espondent fails to rebut the position of the complainant that the signature [on the receipt for the amount of $2,555.00] was his. Hence, respondent anchors his position on a mere denial that it is not his signature. Likewise, the respondent denies the check voucher dated December 15, 1992, and the encircled signature of the respondent, which . . . according to him is falsified and irregular. No evidence, however, was presented by the respondent that his signature therein was falsified and irregular. [As to the altered Supreme Court Official Receipt, the respondent denied] that he ha[d] anything to do with it because it was the complainant who signed the Petition for Review and tried to explain that his name appear[ed] to be the payee because he [was] the counsel of record of the petitioner. But while it is true that the affiant in the said Petition for Review [was] Mr. Rogelio G. Gatchalian, president of the complainant company, the respondent does not deny that he signed the said petition as counsel of the petitioner corporation and that he was actually the one who prepared the same and the notary public before whom the affiant subscribed and [swore] as the one who "caused the preparation" of the said petition.

The legal form (Exh. "G") of the legal fees for the Petition for Review re G.R. 107984 was denied by the respondent because according to him he was never given a chance to cross-examine the person who issued the [certification] . . . . However, respondent does not deny that he is the person referred to by the handwritten name P.R. Naldoza who paid the legal fees of P622.00.

In addition to the said respondent's Formal Offer of Evidence, he submitted to this Commission as his most important piece of evidence the Decision of acquittal in Criminal Case No. 93-8748 entitled "People of the Philippines versus Primo R. Naldoza", the copy of which Decision is appended to his Manifestation with Motion to Dismiss dated July 22, 1996 praying for the dismissal of the present administrative case in view of his being exonerated in the said criminal case based on the same facts and

evidence. 9 (citations omitted)

Commissioner Jose brushed aside respondent's contention that his acquittal in the companion criminal case should result in the dismissal of this administrative complaint. The commissioner emphasized that the criminal case for estafa 10 was completely different from the proceedings before him; acquittal in the former did not exonerate respondent in the latter. 11 He further noted that the RTC Decision itself hinted at the administrative liability of respondent, since it found him civilly liable to herein complainant for $2,555. 12

We agree with the IBP Board of Governors that respondent should be sanctioned. However, the recommended penalty is not commensurate to the gravity of the wrong perpetrated.

At the outset, the Court agrees with the IBP that respondent's Motion to Dismiss should be denied. In that Motion, he maintains that he should be cleared of administrative liability, because he has been acquitted of estafa which involved the same facts. He argues that the issue involved there was

"the very same issue litigated in this case," 13 and that his exoneration "was a result of a full blown trial on the merits of this case." 14

In a similar case, we have said:

. . . The acquittal of respondent Ramos [of] the criminal charge is not a bar to these [administrative] proceedings. The standards of legal profession are not satisfied by conduct which merely enables one to escape the penalties of . . . criminal law. Moreover, this Court in disbarment proceedings is acting in an entirely different capacity from that which courts assume in trying criminal cases. 15

Administrative cases against lawyers belong to a class of their own. 16 They are distinct from and they may proceed independently of civil and criminal cases.

The burden of proof for these types of cases differ. In a criminal case, proof beyond reasonable doubt is necessary; 17 in an administrative case for disbarment or suspension, "clearly preponderant evidence" is all that is required. 18 Thus, a criminal prosecution will not constitute a prejudicial question even if the same facts and circumstances are attendant in the administrative proceedings. 19

It should be emphasized that a finding of guilt in the criminal case will not necessarily result in a finding of liability in the administrative case. 20 Conversely, respondent's acquittal does not necessarily exculpate him administratively. In the same vein, the trial court's finding of civil liability against the respondent will not inexorably lead to a similar finding in the administrative action before this Court. Neither will a favorable disposition in the civil action absolve the administrative liability of the lawyer. 21 The basic premise is that criminal and civil cases are altogether different from administrative matters, such that the disposition in the first two will not inevitably govern the third and vice versa. For this reason, it would be well to remember the Court's ruling in In re Almacen, 22 which we quote:

. . . 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 are rather investigations by the Court into the conduct of one of its officers. Not being intended to inflict punishment, [they are] in no sense a criminal prosecution. Accordingly, there is neither a plaintiff nor a prosecutor therein. [They] may be initiated by the Court motu proprio. Public interest is [their] 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 prove[n] themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney. . . . (emphasis ours)

We shall now discuss seriatim the specific charges against respondent.

First. Complainant alleges that respondent appealed the POEA Decision, despite knowing that it had already become final and executory. The IBP investigating commissioner had no explicit finding on this point. Rogelio G. Gatchalian testified that during the pendency of the appeal, his company had received from the POEA a Writ of Execution which led him to the conclusion that "they [had] lost the case before the Supreme Court." 23 This, however, does not substantiate the charge.

Complainant has failed to present proof regarding the status of the appeal. Neither has there been any showing that the appeal was dismissed on the ground that the POEA Decision had become final and executory. Worse, there has been no evidence that respondent knew that the case was unappealable. Indeed, the records of this Court shows that the Petition for Review was dismissed for petitioner's failure to submit an Affidavit of Service and a legible duplicate of the assailed Order. Clearly, this charge has no leg to stand on.

Second. Be that as it may, we agree with the IBP that respondent obtained from complainant the amount of $2,555, on the false representation that it was needed for the appeal before this Court. According to Gatchalian, 24 respondent explained that the amount would "cover all the expenses to be incurred in the Petition for Review with the Supreme Court and which amount also will answer for the payment as sort of deposit so that if our case is lost, the money will be given or paid to the complainant in that case so that our deposit with the bank would not be garnished." 25 Corroborating Gatchalian's testimony, Edna Deles declared that respondent received the amount on the representation that it "would be paid to the Supreme Court in connection with the Olano case." 26

The defense of denial proffered by respondent is not convincing. Quite the contrary, when he paid P10,000 and issued a check to complainant as his "moral obligation," he indirectly admitted the charge. Normally, this is not the actuation of one who is falsely accused of appropriating the money of another. This is an admission of misconduct. 27 In his Answer submitted to this Court, he declared:

(8). That I have no knowledge, information or belief as to truthfulness of the allegation of the Petitioner, on his allegation no. 8 and no. 9, the truth being that in all the cases and assignments made by the Petitioner to me, I was made to report to him personally and to his Board of Directors the progress of the cases both orally and in writing. I even [went] to the extent of paying him P10,000.00 as my moral obligation only to find after accounting that he still owes me P180,000.00 as attorney's fee [to] which I am entitled under rule 130 of the rules of court sec. 24, and under sec. 37 of the above-cited rules, I have the right to apply the funds received from Gatchalian in satisfaction of my claim for Professional Services, otherwise known as Attorney's

Lien, as shown in my Service Billings and Statement of Accounts." 28 (emphasis ours)

Contrary to respondent's claim, the amount of $2,555 was not a part of his attorney's lien. He demanded the money from his client on the pretext that it was needed for the Petition before the Supreme Court, but he actually converted it to his personal gain. This act clearly constitutes malpractice. 29 The claim that respondent merely applied his lien over the funds of his client is just an afterthought, the accounting being made after the fact. It is settled that the conversion by a lawyer of funds entrusted to him is a gross violation of professional ethics and a betrayal of public confidence in the legal profession. 30

Third. In an effort to conceal his misappropriation of the money entrusted to him, respondent gave complainant a photocopy of a receipt purportedly showing that the Supreme Court had received the sum of $2,555 from him. Again, the testimonies of Gatchalian 31 and Deles 32 were equally clear on this point. After respondent had presented the false receipt, Gatchalian learned that no such payment was made. Ms Araceli Bayuga of the Supreme Court Cash Collection and Disbursement Division issued a certification that respondent had paid the amount of P622 only, not $2,555. In fact, the records of the said case 33 contain no indication at all that the Court has required the payment of the latter sum, or that it has been paid at all.

Juxtaposed to the complainant's evidence, the bare denials of respondent cannot overturn the IBP's findings that he has indeed presented a false receipt to conceal his misappropriation of his client's money. We agree with the IBP that "it is unbelievable that the complainant in the person of Rogelio Gatchalian, being a layman as he is without any knowledge in the procedure of filing a case before the Supreme Court, could spuriously weave such documents which are denied by the respondent." 34

In view of the foregoing, respondent has clearly failed the standards of his noble profession. As we have stated in Resurrecion v. Sayson: 35

[L]awyers must at all times conduct themselves, especially in their dealings with their clients and the public at large, with honesty and integrity in a manner beyond reproach.

Clearly reprehensible are the established facts that he demanded money from his client for a bogus reason, misappropriated the same, and then issued a fake receipt to hide his deed. In Dumadag v. Lumaya, 36 the Court ordered the indefinite suspension of a lawyer for not remitting to his client the amount he had received pursuant to an execution, viz.:

[E]ven as respondent consistently denied liability to Dumadag, his former client, the records abundantly point to his receipt of and failure to deliver the amount of P4,344.00 to his client, the herein complainant, a clear breach of the canons of professional responsibility.

In Obia v. Catimbang, 37 we meted out the same penalty to a lawyer who had misappropriated the money entrusted to him:

The acts committed by respondent definitely constitute malpractice and gross misconduct in his office as attorney. These acts are noted with disapproval by the Court; they are in violation of his duty, as a lawyer, to uphold the integrity and dignity of the legal profession and to engage in no conduct that adversely reflects on his fitness to practice law. Such misconduct discredits the legal profession.

Respondent's acts are more despicable. Not only did he misappropriate the money entrusted to him; he also faked a reason to cajole his client to part with his money. Worse, he had the gall to falsify an official receipt of this Court to cover up his misdeeds. Clearly, he does not deserve to continue being a member of the bar.

WHEREFORE, Primo R. Naldoza is hereby DISBARRED. The Office of the Clerk of Court is directed to strike out his name from the Roll of Attorneys and to inform all courts of this Decision.1âwphi1.nêt

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.

xiiRepublic of the PhilippinesSUPREME COURT

Manila

second division

G.R. No. 90983 September 27, 1991

LAW FIRM OF RAYMUNDO A. ARMOVIT, petitionervs.

COURT OF APPEALS, JUDGE GENARO C. GINES, Presiding Judge of Branch XXVI, Regional Trial Court, First Judicial Region, San Fernando, La Union, and BENGSON

COMMERCIAL BUILDING, INC., Respondents.

 

SARMIENTO, J.:

Before the Court is Atty. Raymundo Armovit's claim for attorney's fees against the private respondent.chanroblesvirtualawlibrary chanrobles virtual law library

It appears that Atty. Armovit was engaged as counsel for the private respondent in a complaint to have an extrajudicial foreclosure of certain properties by the Government Service Insurance System declared null and void; that the parties allegedly agreed that the private respondent shall pay P15,000.00 as initial compensation and twenty percent in contingent fees; that after trial, the defunct Court of First Instance rendered judgment annulling foreclosure and ordering the Government Service Insurance System to restructure the private respondent's loan; that thereafter, the System appealed; the on appeal, the Court of Appeals affirmed the decision of lower court; and that the Appellate Court's judgment has since attained finality. chanroblesvirtualawlibrary chanrobles virtual law library

It also appears that when Atty. Armovit sought execution with the court a quo, he was informed by Romualdo Bengson president of the respondent corporation, that the firm has retained the services of Atty. Pacifico Yadao. He was also informed that the company would pay him the agreed compensation and that Atty. Yadao's fees were covered by a separate agreement. The private respondent, however, later ignored his billings and over the phone, directed him allegedly not to take part in the execution proceedings. Forthwith, he sought the entry of an attorney's lien in the records of the case. The lower

court allegedly refused to make the entry and on the contrary issued an order ordering the Philippine National Bank to "release to the custody of Mr. Romualdo F. Bengzon and/or Atty Pacifico Yadao" 1 the sum of P2,760,000.00 (ordered by the Court of Appeals as rentals payable by the Government Service Insurance System).chanroblesvirtualawlibrary chanrobles virtual law library

Atty. Armovit then moved, apparently for the hearing of hi motion to recognize attorney's lien, and thereafter, the trial court. issued an order in the tenor as follows:

When this case was called for hearing on the petition to record attorney's charging lien, Attys. Armovit and Aglipay appeared for the petitioners. chanroblesvirtualawlibrary chanrobles virtual law library

Atty. Armovit informed the Court that they are withdrawing the petition considering that they are in the process of amicably settling their differences with the plaintiff, which manifestation was confirmed by Atty. Yadao as well as the plaintiffs, Romualdo Bengson and Brenda Bengson, who are present today.chanroblesvirtualawlibrary chanrobles virtual law library

In view of this development, the petition to record attorney charging lien, the same being in order and not contrary to law, moral and public policy, as prayed for by Attys. Armovit and Aglipay, it hereby withdrawn. The parties, therefore are hereby directed to co ply faithfully with their respective obligations.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED. 2 chanrobles virtual law library

However, upon the turnover of the money to the private respondent, Mrs. Brenda Bengson (wife of Romualdo Bengzon delivered to Atty. Armovit the sum of P300,000.00 only. Armovit protested and demanded the amount of P552,000.0 twenty percent of P2,760,000.00), for which Mrs. Bengzon made assurances that he will be paid the balance. chanroblesvirtualawlibrary chanrobles virtual law library

On November 4, 1988, however, Atty. Armovit received a order emanating from the trial court in the tenor as follows:

During the hearing on the petition to record attorney's charge lien on October 11, 1988, Attys. Armovit and Aglipay withdrew their petition to record attorney's charging lien, which was duly approve petition to recordby the Court, after which the Court directed the parties to comp faithfully with their respective obligations.chanroblesvirtualawlibrary chanrobles virtual law library

In compliance with the Order of this Court, the plaintiff submitted a pleading denominated as compliance alleging that petition (Atty. Armovit) has already received from the plaintiff the sum P300,000.00, Philippine Currency, as and by way of attorney's fees With the receipt by the petitioner from the plaintiff of this amount, the latter has faithfully complied with its obligation. chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the Order of this Court dated October 11, 1988 approving the withdrawal of the petition to record attorney's charging lien, on motion of the petitioner, is now final. chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED. 3 chanrobles virtual law library

Reconsideration having been denied, Atty. Armovit went the Court of Appeals on a petition for certiorari and prohibition. chanroblesvirtualawlibrary chanrobles virtual law library

On August 25, 1989, the Court of Appeals 4 rendered judgment dismissing the petition. Reconsideration having been likewise denied by the Appellate Court, Atty. Armovit instituted the instant appeal.chanroblesvirtualawlibrary chanrobles virtual law library

Shortly thereafter, we required the private respondent comment. chanroblesvirtualawlibrary chanrobles virtual law library

The private respondent did not materially traverse Atty. Armorvit's chronicle of events but added: that the private respondent hired the petitioner after the Government Service Insurance System had answered and that it was Atty. Benjam Bernardino who prepared the complaint; that for his appearances, Atty. Armovit was paid a total of P108,000.00, not to mention "beach resort accommodations"; 5 that Atty. Armovit did not inform the private respondent that the court had rendered judgment which they would have appealed; that they lost an appeal on account of Atty. Armovit's indiscretion; that the forthwith engaged the services of another lawyer, Atty. Yadao; and that it was the latter who prepared the brief in the Court Appeals (on GSIS's appeal). chanroblesvirtualawlibrary chanrobles virtual law library

The private respondent also alleged that it opposed Atty. Armovit's effort to record his attorney's lien on grounds of allege nullity of the retainer agreement, Atty. Armovit's negligence and because of excessive fees demanded.chanroblesvirtualawlibrary chanrobles virtual law library

The private respondent also insisted that the retainer agreement was signed by only one of seven directors, and it could no bind the corporation. Atty. Armovit, in any event, had also been allegedly more than sufficiently compensated. chanroblesvirtualawlibrary chanrobles virtual law library

The private respondent alleged that Atty. Armovit had bee paid P300,000.00 - an amount approved by the court, and an amount he accepted and for which he is allegedly estoppel from claiming a higher amount. The order of the court has the effect of res judicata, the private respondent claimed, as well as a compromise agreement which is immediately executory. chanroblesvirtualawlibrary chanrobles virtual law library

The disposition of the Court of Appeals was that since the receipt evidencing payment to Atty. Armovit of the sum P300,000.00 "was without any qualification as 'advance' 'partial' or 'incomplete'," 6 the intention of the parties was that was full payment. The Appellate Court also noted Atty. Armorvit's withdrawal of his motion to record attorney's lien and figured that Atty. Armovit was satisfied with the payment P300,000,00.chanroblesvirtualawlibrary chanrobles virtual law library

The only issue is whether or not Atty. Armovit is entitled to the sum of P252,000.00 more, in addition to the sum P300,000.00 already paid him by the private respondent.There is no question that the parties had agreed on a compensation as follows:

a) P15,000.00 by way of acceptance and study fee, payable within five (5) days from date; chanrobles virtual law library

b) 20% contingent fee computed on the value to be recovered b favorable judgment in the cases; and chanrobles virtual law library

c) the execution and signing of a final retainer agreement complete with all necessary details. 7 chanrobles virtual law library

(While the parties' agreement speaks of "a final retain agreement" 8 to be executed later, it does not appear that the parties did enter into a "final" agreement thereafter.) chanrobles virtual law library

The private respondent's version however is that while it may be true that the agreed compensation was twenty percent of all recoveries, the parties later agreed on a compromise sum approved allegedly by the trial court, per its Order of October 11, 1988. chanroblesvirtualawlibrary chanrobles virtual law library

The Court is inclined to believe that Atty. Armovit never agreed on the compromise sum of P300,000.00. It is true that he did agree to withdraw his motion to annotate attorney's lien, but because the parties were "in the process of amicably settling their differences" 9and not because Atty. Armovit had agreed to accept a lower amount as full payment. There is nothing, on top of that, Atty. Armovit's manifestation that would suggest that he was accepting the sum of P300,00.00 as agreed final payment, other than the fact that an agreement was supposedly certain. We quote:

ATTY. ARMOVIT: chanrobles virtual law library

Your Honor, we would like to manifest in Court that we served notice to the counsel of the plaintiff, Bengson Commercial Building, a copy of the petition to record attorney's charging lien, and together with the president of the corporation, Mr. Romualdo Bengson, and his wife, Mrs. Brenda Bengson, we have discussed the problem and we all agreed upon is an earnest one at this time, this representation is withdrawing his petition to record charging lien. chanroblesvirtualawlibrary chanrobles virtual law library

ATTY. YADAO: chanrobles virtual law library

No objection, Your Honor, because we have to agree with Atty. Armovit. I am in full accord with this. 10

There is nothing there that would indicate Atty. Armovit's willingness to accept, in fact, a lower figure in consideration of his withdrawal of his request to enter attorney's lien. What the Court takes his statement to mean is that he was withdrawing his request on the certainty that the private respondent would pay him the money, presumably, under more becoming circumstances. chanroblesvirtualawlibrary chanrobles virtual law library

The Court does not therefore see how the private respondent can hold Atty. Armovit to have been in estoppel.chanroblesvirtualawlibrary chanrobles virtual law library

The fact that Atty. Armovit did not, after all, accept the sum of P300,000.00 as final compensation is indeed indicated by the behavior of the private respondent, through Mrs. Romualdo Bengson, when she assured Atty. Armovit that the balance was forthcoming. 11According to Mrs. Bengson, she wished the rest of the Bengsons to witness the final payment and when the occasion was present, wished for a postponement on account of "All Saints Day." 12

chanrobles virtual law library

The parties never therefore amended their original agreement, and what appears to the Court is a clear effort on the part of a client, with the apparent approval of the trial court, to renege on a valid agreement with its lawyer. chanroblesvirtualawlibrary chanrobles virtual law library

The Court believes that the trial court, in accepting the private respondent's "compliance" as a final payment of Atty. Armovit's fees, was guilty of a grave abuse of discretion. The private respondent had nothing with which to comply, and the parties, as manifested by Atty. Armovit, were "in the process

[merely] of amicably settling their differences." 13 chanrobles virtual law library

It is apparent furthermore that the trial judge himself was out to deny Atty. Armovit the agreed compensation. In his order of October 4, 1988, he commanded:

The PNB is hereby ordered and directed to release to the custody of Mr. Romualdo F. Bengson and /or Atty. Pacifico Yadao, counsel for the plaintiff, the sum of Two Million Seven Hundred Sixty Thousand Pesos (P2,760,000.00), Philippine Currency for the satisfaction of the rentals of the Bengson Building against the GSIS. 14

chanrobles virtual law library

in spite of the fact that Atty. Armovit had remained the private respondent's counsel of record. It is fundamental that unless a lawyer has been validly discharged, his authority to act for his client continues and should be recognized by the court. 15

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The fact that the receipt evidencing payment by the private respondent of the amount of P300,000.00 "was without any qualification as 'advance' or 'partial' or 'incomplete'," 16as the Court of Appeals noted and the Court of Appeals took to mean "full payment", will not weaken Atty. Armovit's demand for the balance. There is nothing in the receipt that will suggest that will suggest that it was full payment either, and the fact that Atty. Armovit accepted it does not mean that he was satisfied that it was final payment. The fact of the matter is that the private respondent had assured him that the balance was forthcoming.chanroblesvirtualawlibrary chanrobles virtual law library

The private respondent can not justifiably downplay Atty. Armovit as negligent (for failing to appeal) or his demand for fees excessive (that he had been paid enough). Atty. Armovit, after all, succeeded in obtaining a favorable decision for his client, an although his prayer for various damages were denied, he secceeded in obtaining a substantial award (P1,900,00.00 in unpaid rentals) for his client. On appeal, the Court of Appeals sustained his theory. It should be noted that the private respondent had in fact stood to lose substantial properties on foreclosure - Atty. Armovit not only restored to the private respondent its foreclosured properties, he succeeded in having the private respondent's loans restructed and the Government Service Insurance System pay rentals. No client can ask a better result from a lawyer.chanroblesvirtualawlibrary chanrobles virtual law library

Obviously, the private respondent's effort to downgrade Atty. Armovit's performance is a wild, if not cheap, shot of a client out to evade its obligations to its lawyer. The fact that Atty. Armovit may have been paid substantially (in initial fees) while the case was dragging is no justification for denying him the full amount under their agreement. It has been held that initial fees and fees paid in the progress of litigation are independent of the contingent fees. 17

chanrobles virtual law library

That the retainer agreement was never approved by the board of the corporation is also a poor excuse because the fact of the matter is that the private respondent did deliver to Atty. Armovit the sum of P300,000.00 in partial payment, and the private respondent can not now deny him the balance bay alleging lack of authority of the Bengson spouses. chanroblesvirtualawlibrary chanrobles virtual law library

Contingent fees are valid in this jurisdiction. 18 It is true that attorney's fees must at all times be reasonable; 19however, we do not find Atty. Armovit's claim for "twenty percent of all recoveries" to be unreasonable. In the case of Aro v. Nañawa, 20 decided in 1969, this Court awarded the agreed fees amid the efforts of the client to deny him fees by terminating his services. In parallel vein, we are upholding Atty. Armovit's claim for P252,000.00 more - pursuant to the contingent fee agreement -

amid the private respondent's own endeavours to evade its obligations. chanroblesvirtualawlibrary chanrobles virtual law library

Several times, we have come down hard on erring practitioners. We will not however be slow either, in coming to the rescue of aggrieved brother-lawyers in protecting the integrity of the bar from unscrupulous litigants.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, premises considered, the petition is GRANTED. The private respondent is ORDERED to pay the petitioner the sum of P252,000.00. Costs against the private respondent. chanroblesvirtualawlibrary chanrobles virtual law library

IT IS SO ORDERED.

Melencio-Herrera (Chairperson), Paras, Padilla and Regalado, JJ., concur.

xiiiEN BANC

[A.C. - CBD No. 471. June 10, 1999]

LT. LAMBERTO P. VILLAFLOR, complainant, vs. ALVIN T. SARITA, Respondent.

R E S O L U T I O N

KAPUNAN, J.:

This administrative case originated from a sworn affidavit-complaint[1 dated 14 March 1997, filed before the Integrated Bar of the Philippines (IBP), Commission on Bar Discipline, by Lt. Lamberto P. Villaflor seeking the disbarment of Atty. Alvin T. Sarita for disregarding the Temporary Restraining Order (TRO) issued by the Court of Appeals in relation to the case entitled Lamberto Villaflor vs. Biyaya Corporation, et al.[2 now pending with the same court.

Respondent Atty. Alvin T. Sarita is the counsel of Biyaya Corporation, the plaintiff in the ejectment case[3 filed against complainant Lt. Lamberto P. Villaflor before the Metropolitan Trial Court, Branch 53, of Kalookan City. Metropolitan Trial Court Judge Romanito A. Amatong decided the ejectment case in favor of Biyaya Corporation. Complainant appealed this decision to the Regional Trial Court of Kalookan City, Branch 131,[4 which affirmed the decision of the MTC. Not satisfied with the decision of the RTC, complainant brought the case on appeal before the Court of Appeals which was docketed as CA G.R No. 50623.[5 Losing no time, complainant also filed with the Court of Appeals an Urgent Ex-Parte Motion for the Issuance of a Temporary Restraining Order to prevent the impending demolition of his family home.

In a Resolution dated 27 December 1996, the Court of Appeals granted the prayer for a TRO, the dispositive portion of which reads as follows:

IN VIEW OF THE FOREGOING, let a restraining order forthwith issue against defendants-appellees including the public respondent Judge or Sheriff or any person under him from evicting and demolishing the family house of the movant, pending appeal. x x x

SO ORDERED.

The TRO was specifically addressed to, and personally served on, the Presiding Judge of RTC, Branch 131, Kalookan City; the Sheriff/Deputy Sheriff, RTC Branch 131, Kalookan City; Atty. Alvin T. Sarita; and Atty. Romeo F. Barza.[6 Despite the TRO issued by the Court of Appeals, respondent on 8 January 1997, filed before the MTC an Urgent Ex-Parte Motion for the Implementation and/or Enforcement of the Writ of Demolition[7 which had already been issued by the trial court as early as 12 August 1996. In his motion which is quoted hereunder, respondent stated the reason why he did not heed the TRO:

1. That last January 7, 1997, plaintiff received a Resolution dated December 27, 1996 from the Thirteenth Division of the Court of Appeals granting the issuance of a Temporary Restraining Order (TRO).

2. A close scrutiny of the afore-said Resolution including the Notice of Resolution and the Temporary Restraining Order show that it was directed to the Honorable Presiding Judge (Honorable Antonio J. Fineza) of the Regional Trial Court of Caloocan City, Branch 131 and to the assigned (deputy) sheriff thereon and NOT to this Honorable Court and

its deputy sheriff.

3. The only conclusion therefrom is that the Honorable Metropolitan Trial Court is not restrained nor prohibited from enforcing and/or implementing its judicial process such as the subject writ of demolition.

X X X

On 9 January 1997, Judge Amatong granted the motion of respondent and issued an order[8 for the implementation of the writ of demolition. The demolition order was actually carried out the next day, or on 10 January 1997, by the deputy sheriff of the lower court.[9

In response to the situation, complainant filed before the Court of Appeals an action for Indirect Contempt against respondent, Biyaya Corporation, Judge Amatong, And the Register of Deeds of Kalookan City.

The Court of Appeals in its Resolution dated 20 February 1997, found respondent and his co-defendants, Judge Amatong and Biyaya Corporation, guilty of indirect contempt. The dispositive portion of the resolution states:

WHEREFORE, in the light of the foregoing disquisitions, defendants-appellees Biyaya Corporation and MTC Judge Ramonito Amatong, and their counsel, Atty. Alvin Sarita are hereby adjudged GUILTY OF CONTEMPT OF COURT as they are hereby fined to pay the amount of P30,000.00 each, as per SC Administrative Circular No. 22-95, amending Section 6, Rule 71 of the Rules of Court, with a warning that repetition of the same or similar acts will be dealt with more severely.

Atty. Alvin Sarita is likewise REPRIMANDED for his contemptuous or improvident act despite receipt of Our Restraining Order, without prejudice to any further administrative sanction the injured party may seek in the proper forum.

Describing the unfortunate behavior of respondent, the Court of Appeals said:

Specifically, the Court is convinced that Atty. Alvin Sarita should answer for contempt of court for misleading if not deceiving the defendant-appellee MTC Judge into doing a precipitate act of implementing the writ of demolition of appellants family house which is restrained by this Court, or for making false allegations that led his clients to commit a contemptuous act. (Cu Unjieng vs. Mitchell, 58 Phil. 476.) His misinterpretation of the resolution is no defense otherwise, all lawyers can effectively avoid restraining orders of the higher court by arguing around the bush.[10

The Court of Appeals also granted the prayer for the issuance of a writ of preliminary mandatory injunction and ordered Biyaya Corporation and Judge Amatong to immediately restore the demolished family house of complainant or, return to him the estimated value of the same.

Thereafter, complainant filed a case for disbarment against respondent before the IBP Commission on Bar Discipline. The commissioner[11 assigned to investigate the case issued an order[12 dated 3 September 1997, directing respondent to file his answer or comment to the complaint. The period of time allotted to answer the complaint lapsed without respondent submitting his comment. On 8 December 1997, an order[13 was issued by the investigating commissioner requiring the parties to attend the hearing of the case on 10 February 1998. Respondent failed to appear therein. The hearing was postponed and reset to 6 March 1998. A notice of hearing[14 was sent to respondent but again he failed to attend the proceeding. After giving respondent enough opportunity to face the charges against him, which the latter did not avail, the case was submitted for resolution on 6 March 1998.[15

The commissioners report dated 10 September 1998, recommending the disbarment of Atty. Alvin T. Sarita stated in part:

As clearly established in the resolution of the Honorable Thirteenth Division of the Court of Appeals in its disquisition on his culpability, Atty, Sarita is liable not only for deliberately misleading if not deceiving the defendant-appellee MTC Judge into violating the appellate courts restraining order, but also for making false allegations

that led his clients to commit a contemptuous act;

As a member of the Bar, Atty. Sarita is mandated by his oath to obey the laws as well as the duly constituted authorities therein and not to do any falsehood nor consent to the doing of any in court;

In filing his urgent ex-parte motion to implement the writ of demolition issued against the residence of the complainant, Atty. Sarita was well-aware that what he was seeking to do was specifically restrained by the court of Appeals in no uncertain terms. Even if we were inclined, in a gesture of utmost liberality, to hold for Atty. Saritas (sic) and resolve any doubts in his favor, we are simply overwhelmed by the thought that as a lawyer, Atty. Sarita knew quite well or must have known quite well that what he was asking for in his motion was violative not only of an order from the second highest court but more personally was violative of his own oath as a lawyer;

The findings of the Court of Appeals says it all. What all the more moves the undersigned to recommend the ultimate penalty of disbarment against Atty. Alvin T. Sarita is the evident, even palpable disdain, in which he clearly holds this Office in particular, and the Integrated Bar in general. Nowhere is this disdain more felt than in Atty. Saritas deliberate and pointed refusal, not only to file an Answer to the complaint against him but also his unjustified refusal to appear before this Office despite repeated notices. It appears that Atty. Sarita is beyond caring for whatever sanctions this Office may recommend against him. Surely, he cannot turn his back on the possibility that the complainants prayer may be granted given the seriousness of his (Saritas) misdeeds. But then, considering that Atty. Sarita has no compunctions about misleading a judge of the Metropolitan Trial Court into disregarding and violating an order from the Court of Appeals, it is no surprise that he would ignore the Commission on Bar Discipline;

We recommend for the disbarment of Atty. Alvin T. Sarita.

In its 4 December 1998 Resolution, the IBP Board of Governors resolved to adopt the findings of the investigating commissioner, to wit:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner in the above-entitled case, herein made part of this Resolution/Decision as Annex A; and finding the recommendation fully supported by the evidence on record and the applicable laws and rules, Respondent Atty. Alvin T. Sarita is DISBARRED from the practice of law.

The facts and evidence obtaining in this case clearly reveal respondents failure to live up to his duties as a member of the Bar in accordance with the Code of Professional Responsibility, the Lawyers Oath and Section 20 (b), Rule 138 of the Rules of Court, thus warranting disciplinary sanction.

As an officer of the court, it is the duty of a lawyer to uphold the dignity and authority of the court, to which he owes fidelity, according to the oath he has taken. It is his foremost responsibility to observe and maintain the respect due to the courts of justice and judicial officers.[16 The highest form of respect to the judicial authority is shown by a lawyers obedience to court orders and processes.

Atty. Alvin T. Sarita committed an immeasurable disservice to the judicial system when he openly defied the TRO issued by the Court of Appeals. By such act, he deliberately disregarded or ignored his solemn oath to conduct himself as a lawyer according to the best of his knowledge and discretion, with all good fidelity to the courts. He neglected

his duties to observe and maintain the respect due to the courts of justice and judicial officers,[17 and to act with candor, fairness and good faith to the courts.[18

Moreover, even assuming ex gratia argumenti that the TRO issued by the Court of Appeals was ambiguous in its phraseology, respondent should have carried out the intent and the spirit of the said TRO rather than choose to be narrowly technical in interpreting and implementing the same. In De Leon vs. Torres,[19 this Court said:

We desire to call attention to the fact that courts orders, however erroneous they may be, must be respected, especially by the bar or the lawyers who are themselves officers of the courts. Court orders are to be respected not because the judges who issue them should be respected, but because of the respect and consideration that should be extended to the judicial branch of the Government. This is absolutely essential if our Government is to be a government of laws and not of men. Respect must be had not because of the incumbents to the positions, but because of the authority that vests in them. Disrespect to judicial incumbents is disrespect to that branch of the Government to which they belong, as well as to the State which has instituted the judicial system.

Not only did respondent disobey the order of the Court of Appeals, he also misled the trial court judge into issuing the order to implement the writ of demolition which led to the destruction of the family home of complainant. In doing so, respondent violated his oath of office and Canon 10, Rule 10.01 of the Code of Professional Responsibility which provides that a lawyer shall not do any falsehood nor consent to the doing of any in court. Surely, such conduct of respondent is starkly unbecoming of an officer of the court.

Respondents behavior also exhibited his reckless and unfeeling attitude towards the complainant. By disobeying the TRO issued by the Court of Appeals, he inflicted deep physical and moral injury upon complainant and his family by making them homeless. Obviously, it did not matter to him whether complainant and his family would still have a place to stay as long as he won the case for his client. We would like to emphasize that a lawyers responsibility to protect and advance the interests of his client does not warrant a course of action propelled by ill motives and malicious intentions against the other party.[20 Respondent failed to live up to this expectation.

We find the complaint against respondent fully substantiated by the evidence. However, we believe that the penalty of disbarment imposed by the Board of Governors of the Integrated Bar of the Philippines is too severe and, hereby reduce it to suspension for two (2) years from the practice of law.[21

ACCORDINGLY, respondent Atty. Alvin T. Sarita is hereby SUSPENDED for two (2) years from the practice of law and from the enjoyment of all rights and privileges appurtenant to membership in the Philippine Bar, effective immediately.

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

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Mendoza, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.

Panganiban, J., on leave.

From kate

xivMERCEDES RUTH COBB-PEREZ and DAMASO P. PEREZ, petitioners, vs.HON. GREGORIO LANTIN, Judge of the Court of First Instance of Manila, RICARDO P. HERMOSO and the CITY SHERIFF OF MANILA, respondents.Crispin D. Baizas and Associates for petitioners. Isidro T. Almeda for respondents.CASTRO, J.:This is a motion for partial reconsideration of this Court's decision of May 22, 1968, specifically directed against the following observation therein made:

We feel compelled to observe that during the protracted litigation below, the petitioners resorted to a series of actions and petitions, at some stages alternatingly, abetted by their counsel, for the sole purpose of thwarting the execution of a simple money judgment which has long become final and executory. Some of the actions were filed, only to be abandoned or withdrawn. The petitioners and their counsel, far from viewing courts as sanctuaries for those who seek justice, have tried to use them to subvert the very ends of justice.

Corollarily, this Court assessed treble costs against the petitioners, to "be paid by their counsel.".The herein movants, Attys. Crispin D. Baizas and A. N. Bolinas, counsels for the petitioners, while submitting to the judgment on the merits, seek reconsideration of the decision in so far as it reflects adversely upon their "professional conduct" and condemns them to pay the treble costs adjudged against their clients.At first blush, the motion for reconsideration presents a semblance of merit. After mature deliberation and patient reprobing into the records of the case, however, we are of the firmer conviction that the protracted litigation, alluded to in the above-quoted portion of our decision, was designed to cause delay, and the active participation of the petitioners' counsels in this adventure is patent.After November 15, 1962 when the Court of Appeals rendered judgment sustaining Damaso Perez' position with respect to the extent of the levy, the subsequent proceedings interposed alternatingly by the petitioner spouses were obviously quixotic maneuvers expected to be overthrown by the courts but calculated to delay an execution long overdue.Had the petitioners and their counsels seriously believed that the levied shares of stock were conjugal property, why did they not adopt this position from the very start, or, at the latest, in CA-G.R. 29962-R, wherein Damaso Perez challenged the legality of the levy's coverage, in order to end the litigation with reasonable dispatch? They chose, however, to attack the execution in a piecemeal fashion, causing the postponement of the projected execution sale six times. More than eight years after the finality of the judgment have passed, and the same has yet to be satisfied.In a determined effort to prolong the litigation, the Perez spouses, as represented by their counsels, sought the issuance of preliminary injunctions to restrain the execution of the final judgment in civil case 39407 from courts which did not have jurisdiction and which would, as expected, initially or ultimately deny their prayer. For instance, after Damaso Perez bowed out temporarily from the scene following the rendition of the aforementioned Court of Appeals decision, his wife, Mercedez, Ruth Cobb-Perez, intruded into the controversy and asked for an ex parte writ of preliminary injunction from the Court of First Instance of Rizal in connection with civil case 7532 which she filed with the said court, knowing fully well that the basic civil case 39407 was decided by the Court of First Instance of Manila (Branch VII presided by the respondent Judge Lantin), which latter court was the proper forum for any action relative to the execution. Judge Eulogio Mencias of the Court of First Instance of Rizal, looking to Acosta vs. Alvendia (L-14598, October 31, 1960), which held that courts of first instance have no power to restrain acts outside their territorial jurisdictions, lifted on October 4, 1963 the ex parte writ which he previously issued enjoining the respondent sheriff from carrying out the execution sale. It is clear, however, that Mrs. Perez and her counsels, the movants, knew or ought to have known beforehand that the Court of First Instance of Rizal did not have jurisdiction to issue the writ which Mrs. Perez herself sought, and, anticipating the recall of the writ improvidently issued, on September 3, 1963, a month before the said writ was actually lifted, filed in the basic civil case 39407 an urgent motion to lift the writ of execution issued on August 15, 1961, alleging as justification the conjugal nature of the levied shares of stock and the personal nature of Damaso Perez' judgment debt, the very same reasons advanced in civil case 7532 which was then still pending in the Court of First Instance of Rizal. Incidentally, Mrs. Perez failed to adduce any evidence in support of her aforesaid urgent motion, as in fact neither she nor her counsels appeared during the scheduled hearing, prompting the respondent judge to issue the following order:

When the urgent motion to recall or lift writ of execution was called this morning for hearing, counsel for the movant did not appear despite the fact that he had been duly notified of the motion for hearing. In view thereof the court assumes that he is waiving his right to present evidence in support of his urgent motion to recall or lift writ of execution. Said urgent motion is therefore deemed submitted for resolution.

Despite the recall of the aforementioned writ of injunction by Judge Mencias on a disclaimer of jurisdiction (since the execution sought to be enjoined was ordered by another tribunal), Mrs. Perez, now assisted by her husband who had staged a comeback, prayed for the issuance of another injunction, this time from Branch XXII of the Court of First Instance of Manila (not the same Branch which issued the controverted writ of execution), in connection with civil case 7532, then still pending in the Court of First Instance of Rizal. As most probably anticipated anew by the Perez spouses and their counsels, Judge Alikpala, presiding judge of Branch XXII, on November 8, 1963 denied the preliminary injunction sought, on the ground, among others, that he had no power to interfere by injunction with the judgment or decree of a court of concurrent or coordinate jurisdiction. On the very day the injunction was denied, Damaso Perez, as if expecting the reversal from Judge Alikpala, was already prepared with another "remedy," as in fact on that day, November 8, 1963, he filed in the basic civil case 39407 an "Urgent Motion for Reconsideration" of the order of October 19, 1963, which denied his wife's above-mentioned motion to recall the controverted writ of execution.The foregoing motion, far from seriously seeking the reconsideration of the order of October 19, 1963, which in the first place Damaso Perez could not legally do for he was not even a party to the denied "Urgent Motion to Recall Writ of Execution" (filed by his wife alone), was merely an offer to replace the levied stocks with supposed cash dividends due to the Perez spouses as stockholders in the Republic Bank.1 As a matter of fact, when the motion was set for hearing on December 21, 1963, the counsels for Damaso Perez promised to produce the said cash dividends within five days, but the promise was never fulfilled.2Consequently, the respondent Judge on January 4, 1964, denied the said motion for reconsideration.The above exposition of the circumstances relative to the protracted litigation clearly negates the avowal of the movants that "in none of the various incidents in the case at bar has any particular counsel of petitioners acted with deliberate aforethought to delay the enforcement of the judgment in Civil Case No. 39407." From the chronology of antecedent events, the fact becomes inescapable that the Perez spouses, coached by their counsels, had sallied forth on a strategem of "remedies" projected to foil the lawful execution of a simple money judgment. It is equally obvious that they foreshadowed their own reversals in the "remedies" they ventured to adopt, such that even before, one remedy had been exhausted, they interposed another until the case reached this Court for the second time. 3 Meanwhile, justice was delayed, and more than one member of this Court are persuaded that justice was practically waylaid.The movants also contend that even this Court sanctions the aforesaid civil cases 7532 and 55292 as the "proper remedy" when we said that.

In reality, what they attacked is not the writ of execution, the validity and regularity of which are unchallenged, but the levy made by the respondent Sheriff. In this regard, the remedy is not the recall of the writ, but an independent action to enjoin the Sheriff from proceeding with the projected sale, in which action the conjugal nature of the levied stocks should be established as a basis for the subsequent issuance of a permanent injunction, in the event of a successful claim. Incidentally, in the course of the protracted litigation, the petitioners had already availed of this remedy in civil cases 7532 and 55292, only to abandon it as they incessantly sought other, and often simultaneous, devices of thwarting satisfaction of the judgment debt. (Emphasis supplied) .

And because of this statement, they now counter that the said cases could not be branded as having been instituted for delay.The reference we made to civil cases 7532 and 55292 in the above-quoted statement must not be considered out of context. We said that the petitioners incidentally had already availed of the suggested remedy only in the sense that said civil cases 7532 and 55292 were apparently instituted to prove the conjugal nature of the levied shares of stocks in question. We used the wordincidentally advisedly to show that in their incessant search for devices to thwart the controverted execution, they accidentally stumbled on the suggested remedy. But the said civil cases were definitely not the "proper remedy" in so far as they sought the issuance of writs of preliminary injunction from the Court of First Instance of Rizal and the Court of First Instance of Manila (Branch XXII) where civil cases 7532 and 55292 were filed respectively, for the said courts did not have jurisdiction to restrain the enforcement of the writ of execution issued by the Court of First Instance of Manila (Branch VII) under the settled doctrines that Courts are without power to restrain acts outside of their territorial jurisdiction 4 or interfere with the judgment or decree of a court of concurrent or coordinate jurisdiction. 5 However, the recall and the denial of the writs of preliminary injunction in civil cases 7532 and 55292 did not amount to the termination or dismissal of the principal action in each case. Had the Perez spouses desired in earnest to continue with the said cases they could have done so. But the fact is that Mrs. Perez practically abandoned civil case 7532 when she instituted the

above mentioned urgent motion to recall writ of execution in the basic civil case 39407, anchored on the same grounds which she advanced in the former case, until the said civil case 7532 was dismissed on November 9, 1963, upon her own motion. Anent civil case 55292, the Perez spouses virtually deserted the same when they instituted the herein petition for certiorari with urgent writ of preliminary injunction based on the same grounds proffered in the said civil case — until the latter was also dismissed on March 20, 1964, with the consent of the parties because of the pendency then of the aforesaid petition for certiorari.The movants further contend that "If there was delay, it was because petitioners' counsel happened to be more assertive ... a quality of the lawyers (which) is not to be condemned."A counsel's assertiveness in espousing with candour and honesty his client's cause must be encouraged and is to be commended; what we do not and cannot countenance is a lawyer's insistence despite the patent futility of his client's position, as in the case at bar.It is the duty of a counsel to advise his client, ordinarily a layman to the intricacies and vagaries of the law, on the merit or lack of merit of his case. If he finds that his client's cause is defenseless, then it is his bounden duty to advise the latter to acquiesce and submit, rather than traverse the incontrovertible. A lawyer must resist the whims and caprices of his client, and temper his client's propensity to litigate. A lawyer's oath to uphold the cause of justice is superior to his duty to his client; its primacy is indisputable.The movants finally state that the "Petitioners have several counsel in this case but the participation of each counsel was rather limited implying that the decision of this Court ordering that "treble costs are assessed against the petitioners, which shall be paid by their counsel" is not clear. The word "counsel" may be either singular or plural in construction, so that when we said "counsel" we meant the counsels on record of the petitioners who were responsible for the inordinate delay in the execution of the final judgment in the basic civil case 39407, after the Court of Appeals had rendered its aforementioned decision of November 15, 1962. And it is on record that the movants are such counsels. Atty. Bolinas, upon his own admission, "entered his appearance in the case at bar about the time the Court of First Instance of Manila dismissed the petitioners' Petition for Relief in Civil Case No. 39407," or about August 3, 1961 and even prior to the Court of Appeals decision above-mentioned. Atty. Baizas claims that he "became petitioners' counsel only in October, 1963 when he filed, with Atty. A.N. Bolinao, Jr. Civil Case No. 55292 before the Court of First Instance of Manila presided by the Hon. Judge Alikpala although it appears on record that the urgent motion to recall writ of execution filed by Mrs. Perez in the basic civil case 39407 on September 3, 1963, was over the signature of one Ruby Zaida of the law firm of "Crispin Baizas & Associates" as counsel for Mrs. Perez. It is to be recalled that the said urgent motion is the same motion discussed above, which, curiously enough, antedated by at least one month the lifting of the writ of preliminary injunction issued in civil case 7532.ACCORDINGLY, the motion for partial reconsideration is denied. Our decision of May 22, 1968 is hereby modified in the sense that Attys. Crispin D. Baizas and A.N. Bolinao, Jr. shall pay jointly and severally the treble costs assessed against the petitioners.STA. MARIA VS. TUASON 11 SCRA 562   (Ethics)

January 29, 2010 at 9:24 am (1)

FACTS:

This is a petition for the disbarment of Atty. Eduardo M. Tuason, instituted by Emilio Sta. Maria.

Sometime in June 1955, Atty. Tuason represented the partnership of Sta. Maria, Guanzon and Chincuanco in a collection case against Enriqueta de Hidalgo, involving a promissory note of P50,000.00. Defendant Hidalgo in this case was declared in default and was ordered to pay. By virtue of a writ of execution, the provincial sheriff of Pampanga was able to obtain the amount of P22,930.64.

Respondent Tuason got the whole amount from the sheriff and applied it in the following manner : P10,000 attorney’s fees, P1,648 supposed expenses of litigation which he claimed to have advanced during the prosecution and the balance of P11,282.64 to Fausto Chincuanco, his uncle.

Despite demands from Sta. Maria to turn over the money to him or to the sheriff, respondent failed to comply and contempt proceedings were instituted against Tuason. The matter was referred to the Office of the Solicitor General who made the findings and recommendation that: respondent Tuason was not in connivance with his uncle Chincuanco in depriving petitioner of his lawful share in the liquidation of partnership assets, however, the collection of P10,000 as attorney’s fees after the case was terminated after one brief hearing is unreasonable. There was also no evidence presented to show that Tuason actually spent P1,648 for the expenses.

The Sol. Gen. recommended that instead of a more severe penalty which he would otherwise deserve, respondent be reprimanded for professional indiscretion, with a warning that a more severe penalty be imposed for the repetition of the same of similar acts.

ISSUE : Whether respondent committed acts that would merit his disbarment.

RULING:

The fact that the respondent placed his private and personal interest over and above that of his clients constitutes a breach of the lawyer’s oath, to say the least. Call it professional indiscretion or any other name, but the cold fact remains that the act is not conducive to the health growth of the legal profession. Respondent is hereby admonished that a repetition of similar acts will merit more drastic action.

SEVERINO RAMOS, Complainant, v. ATTY. ELLIS JACOBA and ATTY. OLIVIA VELASCO JACOBA, Respondents.

This is a complaint for disbarment filed by complainant Severino Ramos against Atty. Ellis Jacoba for the latter's failure, as counsel for complainant and his wife, to file the appellants' brief in the Court of Appeals, as a result of which the appeal filed by complainant and his wife was dismissed and the decision of the Regional Trial Court against them became final.

Complainant Severino Ramos and his wife were defendants in a civil case1 for collection of a sum of money before the Regional Trial Court, Branch 27, Cabanatuan City. As judgment was rendered against the spouses Ramos, they engaged the services of Atty. Ellis Jacoba and Atty. Olivia Velasco-Jacoba as their counsel to appeal the said decision to the Court of Appeals. However, despite the extensions of time granted to them totaling 135 days, Atty. Ellis Jacoba failed to file the appellants' brief, resulting in the dismissal of the appeal.2 The complainant and his wife filed a motion for reconsideration of the dismissal of their appeal, but their motion was denied.3

Complainant subsequently filed a verified complaint, entitled "Sinumpaang Salaysay," before the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP), in which he alleged that he and his wife paid P10,000.00 to respondents as attorney's fees and acceptance fee,4 and, in addition, the amount of P8,000.00 for expenses in the preparation of the appellants' brief. Because Atty. Ellis Jacoba failed to file the appellants' brief, complainant prayed for his disbarment.

Respondents were required to answer the complaint against them but neither of them filed an answer despite two extensions of time granted to them for filing the same. Neither did they appear before the Commission on Bar Discipline of the IBP despite due notice to them. As consequence, the allegations made and the evidence proffered by complainant remain uncontroverted.

On January 12, 2001, the Investigating Commissioner of the IBP recommended that

(a) respondent Atty. Ellis Jacoba be SUSPENDED from the practice of law for the period of SIX (6) months;

(b) respondent Atty. Ellis Jacoba be ordered to return to complainant Severino Ramos the amount of Ten Thousand Pesos (P10,000.00) within fifteen (15) days from notice;

(c) respondent Atty. Olivia Velasco Jacoba be ADMONISHED to exercise more diligence in attending to legal matters entrusted by a client, with a WARNING that a repetition of the same negligent act charged in this complaint will be dealt with more severely.5

The IBP Board of Governors adopted and approved the report and recommendation of the Investigating Commissioner with the modification that respondent Atty. Ellis Jacoba be suspended from the practice of law for three months for gross negligence and malpractice causing actual loss to complainant.6

After a review of the records of this case, the Court finds the IBP recommendation to be well taken. However, instead of a three-month suspension as recommended by the IBP Board of Governors, we find that the suspension of respondent Atty. Ellis Jacoba from the practice of law should be increased to one year considering that this is the second time he is found guilty of neglect of his client's case.

The records clearly show that respondent Atty. Ellis Jacoba was remiss in the performance of his duties to complainant. He was given by the Court of Appeals extensions of time totaling 135 days within which to file the appellants' brief, but he failed to file the same. No reason has been given in extenuation of respondent's failure.

What this Court said in another case is apropos:

Once he agrees to take up the cause of a client, the lawyer owes fidelity to such cause and must always be mindful of the trust and confidence reposed in him. He must serve the client with competence and diligence, and champion the latter's cause with wholehearted fidelity, care, and devotion. Elsewise stated, he owes entire devotion to the interest of the client, warm zeal in the maintenance and defense of his client's rights, and the exertion of his utmost learning and ability to the end that nothing be taken or withheld from his client, save by the rules of law, legally applied. This simply means that his client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land and he may expect his lawyer to assert every such remedy or defense. If much is demanded from an attorney, it is because the entrusted privilege to practice law carries with it the correlative duties not only to the client but also to the court, to the bar, and to the public. A lawyer who performs his duty with diligence and candor not only protects the interest of his client; he also serves the ends of justice, does honor to the bar, and helps maintain the respect of the community to the legal profession.7

Indeed, a lawyer owes fidelity to the cause of his client. He should ever be mindful of the trust and confidence reposed in him, remembering always that his actions or omissions are binding on his clients.8 In this case, the failure of respondent to file the appellants' brief resulted in the dismissal of the appeal. As a consequence, the adverse decision in the trial court against complainant and his wife became final and executory and they were made to pay P107,000.00 to the plaintiffs in Civil Case No. 2014-AF.9 His wife was so aggrieved that she died upon learning of the final dismissal of their appeal.10

The Code of Professional Responsibility provides in particular:

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.

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

Thus, this Court has held:

An attorney is bound to protect his client's interest to the best of his ability and with utmost diligence. (Del Rosario vs. Court of Appeals, 114 SCRA 159) A failure to file brief for his client certainly constitutes inexcusable negligence on his part. (People vs. Villar, 46 SCRA 107) The respondent has indeed committed a serious lapse in the duty owed by him to his client as well as to the Court not to delay litigation and to aid in the speedy administration of justice. (People vs. Daban, 43 SCRA 185; People vs. Estocada, 43 SCRA 515)11

As already noted, this is not the first violation committed by respondent. In Adm. Case No. 2594, this Court, in a resolution dated June 3, 1985, suspended Atty. Ellis Jacoba from the practice of law for a period of six (6) months for his failure to file an action for the recovery of possession of property despite the lapse of two and a half (2 1/2) years from receipt by him of P550.00 which his client gave him as filing and sheriff's fees. In addition, he was ordered to return the same amount to the complainant, Liberato Soriano, and warned that a repetition of the same or similar offense will be dealt with more severely.

Apparently, respondent Atty. Ellis Jacoba has not learned his lesson. Instead, he has shown an appalling indifference to his client's interest and willful neglect of his duties as an officer of the court, thus warranting the imposition of a more severe penalty on him. In addition, as the IBP recommends, respondent Atty. Ellis Jacoba should be ordered to return to complainant the amount of P10,000.00 considering that this amount represents his fees and no service was rendered by him to complainant. The additional P8,000.00 allegedly paid by complainant to respondents to defray the expenses for the preparation of the appellants' brief cannot be ordered reimbursed for lack of a receipt to prove such payment.

As regards the recommendation of the IBP that respondent Atty. Olivia Velasco-Jacoba be admonished, the records show that her participation was limited to the assistance she rendered complainant in filing the notice of appeal before the trial court. She does not appear as counsel for complainant in the records of the Court of Appeals. The Court, therefore, finds no basis for sanctioning or admonishing her.

WHEREFORE, in view of the foregoing, respondent Atty. Ellis Jacoba is SUSPENDED from the practice of law for one year effective upon finality hereof and ORDERED to return to complainant the amount of P10,000.00 with WARNING that a repetition of the same negligent act charged in this complaint will be dealt with even more severely. The complaint against respondent Atty. Olivia Velasco-Jacoba is dismissed for insufficiency of evidence.

MR. and MRS. VENUSTIANO G. SABURNIDO, complainants, v. ATTY. FLORANTE E. MADROO,1 respondent.

QUISUMBING, J.:

For our resolution is the administrative complaint2 for disbarment of respondent, Atty. Florante E. Madroño filed by spouses Venustiano and Rosalia Saburdino. Complainants allege that respondent has been harassing them by filing numerous complaints against them, in addition to committing acts of dishonesty.

Complainant Venustiano Saburnido is a member of the Philippine National Police stationed at Balingasag, Misamis Oriental, while his wife Rosalia is a public school teacher. Respondent is a former judge of the Municipal Circuit Trial Court, Balingasag-Lagonglong, Misamis Oriental.

Previous to this administrative case, complainants also filed three separate administrative cases against respondent.

In A. M. No. MTJ-90-383,3 complainant Venustiano Saburnido filed charges of grave threats and acts unbecoming a member of the judiciary against respondent. Respondent was therein found guilty of pointing a high-powered firearm at complainant, who was unarmed at the time, during a heated altercation. Respondent was accordingly dismissed from the service with prejudice to reemployment in government but without forfeiture of retirement benefits.

Respondent was again administratively charged in the consolidated cases of Sealana-Abbu v. Judge Madroño, A.M. No. 92-1-084-RTC and Sps. Saburnido v. Judge Madroño, A.M. No. MTJ-90-486.4 In the first case, Assistant Provincial Prosecutor Florencia Sealana-Abbu charged that respondent granted and reduced bail in a criminal case without prior notice to the prosecution. In the second case, the spouses Saburnido charged that respondent, in whose court certain confiscated smuggled goods were deposited, allowed other persons to take the goods but did not issue the corresponding memorandum receipts. Some of the goods were lost while others were substituted with damaged goods. Respondent was found guilty of both charges and his retirement benefits were forfeited.

In the present case, the spouses Saburnido allege that respondent has been harassing them by filing numerous complaints against them, namely:

1. Adm. Case No. 90-0755,5 for serious irregularity, filed by respondent against Venustiano Saburnido. Respondent claimed that Venustiano lent his service firearm to an acquaintance who thereafter extorted money from public jeepney drivers while posing as a member of the then Constabulary Highway Patrol Group.

2. Adm. Case No. 90-0758,6 for falsification, filed by respondent against Venustiano Saburnido and two others. Respondent averred that Venustiano, with the help of his co-respondents in the case, inserted an entry in the police blotter regarding the loss of Venustiano's firearm.

3. Crim. Case No. 93-67,7 for evasion through negligence under Article 224 of the Revised Penal Code, filed by respondent against Venustiano Saburnido. Respondent alleged that Venustiano Saburnido, without permission from his superior, took into custody a prisoner by final Judgment who thereafter escaped.

4. Adm. Case No. 95 33,8 filed by respondent against Rosalia Saburnido for violation of the Omnibus Election Code. Respondent alleged that Rosalia Saburnido served as chairperson of the Board of Election Inspectors during the 1995 elections despite being related to a candidate for barangay councilor.

At the time the present complaint was filed, the three actions filed against Venustiano Saburnido had been dismissed while the case against Rosalia Saburnido was still pending.

Complainants allege that respondent filed those cases against them in retaliation, since they had earlier filed administrative cases against him that resulted in his dismissal from the judiciary. Complainants assert that due to

the complaints filed against them, they suffered much moral, mental, physical, and financial damage. They claim that their children had to stop going to school since the family funds were used up in attending to their cases.

For his part, respondent contends that the grounds mentioned in the administrative cases in which he was dismissed and his benefits forfeited did not constitute moral turpitude. Hence, he could not be disbarred therefor. He then argues that none of the complaints he filed against complainants was manufactured. He adds that he "was so unlucky that Saburnido was not convicted."9 He claims that the complaint for serious irregularity against Venustiano Saburnido was dismissed only because the latter was able to antedate an entry in the police blotter stating that his service firearm was lost. He also points out that Venustiano was suspended when a prisoner escaped during his watch. As for his complaint against Rosalia Saburnido, respondent contends that by mentioning this case in the present complaint, Rosalia wants to deprive him of his right to call the attention of the proper authorities to a violation of the Election Code.

In their reply, complainants reiterate their charge that the cases against them were meant only to harass them. In addition, Rosalia Saburnido stressed that she served in the BEI in 1995 only because the supposed chairperson was indisposed. She stated that she told the other BEI members and the pollwatchers that she was related to one candidate and that she would desist from serving if anyone objected. Since nobody objected, she proceeded to dispense her duties as BEI chairperson. She added that her relative lost in that election while respondent's son won.

In a resolution dated May 22, 1996,10 we referred this matter to the Integrated Bar of the Philippines (IBP) for investigation, report, and recommendation.

In its report submitted to this Court on October 16, 2000, the IBP noted that respondent and his counsel failed to appear and present evidence in the hearing of the case set for January 26, 2000, despite notice. Thus, respondent was considered to have waived his right to present evidence in his behalf during said hearing. Neither did respondent submit his memorandum as directed by the IBP.

After evaluating the evidence before it, the IBP concluded that complainants submitted convincing proof that respondent indeed committed acts constituting gross misconduct that warrant the imposition of administrative sanction. The IBP recommends that respondent be suspended from the practice of law for one year.

We have examined the records of this case and find no reason to disagree with the findings and recommendation of the IBP.

A lawyer may be disciplined for any conduct, in his professional or private capacity, that renders him unfit to continue to be an officer of the court.11 Canon 7 of the Code of Professional Responsibility commands all lawyers to at all times uphold the dignity and integrity of the legal profession. Specifically, in Rule 7.03, the Code provides:

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

Clearly, respondent's act of filing multiple complaints against herein complainants reflects on his fitness to be a member of the legal profession. His act evinces vindictiveness, a decidedly undesirable trait whether in a lawyer or another individual, as complainants were instrumental in respondent's dismissal from the judiciary. We see in respondent's tenacity in pursuing several cases against complainants not the persistence of one who has been grievously wronged but the obstinacy of one who is trying to exact revenge.

Respondent's action erodes rather than enhances public perception of the legal profession. It constitutes gross misconduct for which he may be suspended, following Section 27, Rule 138 of the Rules of Court, which provides:

SECTION 27. Disbarment or suspension of attorneys by Supreme Court, grounds therefor. A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a wilful disobedience appearing as an attorney for a party to a case without authority so to do.x x x

Complainants ask that respondent be disbarred. However, we find that suspension from the practice of law is sufficient to discipline respondent.

The supreme penalty of disbarment is meted out only in clear cases of misconduct that seriously affect the standing and character of the lawyer as an officer of the court.12 While we will not hesitate to remove an erring attorney from the esteemed brotherhood of lawyers, where the evidence calls for it, we will also not disbar him where a lesser penalty will suffice to accomplish the desired end.13 In this case, we find suspension to be a sufficient sanction against respondent. Suspension, we may add, is not primarily intended as a punishment, but as a means to protect the public and the legal profession.14

WHEREFORE, respondent Atty. Florante E. Madroño is found GUILTY of gross misconduct and is SUSPENDED from the practice of law for one year with a WARNING that a repetition the same or similar act will be dealt with more severely. Respondent's suspension is effective upon his receipt of notice of this decision. Let notice of this decision be spread in respondent's record as an attorney in this Court, and notice of the same served on the Integrated Bar of the Philippines and on the Office of the Court Administrator for circulation to all the courts concerned.

MARIO S. MARIVELES, complainant, vs.ATTY. ODILON C. MALLARI, respondent.Rodolfo B. Ta-asan for complainant. PER CURIAM:On January 11, 1989, Mario S. Mariveles of Davao City filed an administrative complaint against his former counsel, Attorney Odilon C. Mallari, whose legal services he had engaged in 1984 to handle his defense in Criminal Case No. 6608 of the Regional Trial Court of Davao City where he was charged with violation of B.P. Blg. 22, otherwise known as the Bouncing Checks Law.After an adverse decision was rendered on December 26, 1986, Mariveles instructed Attorney Mallari to appeal the trial court's decision to the Court of Appeals, which the respondent did.However, in the Court of Appeals, despite numerous extensions of time, totalling 245 days, which he obtained from the Court, Attorney Mallari failed to file the appellant's brief, resulting in the dismissal of the appeal.Complainant discovered his lawyer's desertion only when he was subpoenaed by the trial court to appear before it for the execution of the decision which had become final.Through new counsel, complainant filed a Petition for Reinstatement of Appeal, Cancellation of Entry of Judgment and Admission of Appellant's Brief in CA-G.R. CR No. 04482, but it was denied by the appellate court.He sought relief in this court (G.R. No. 85964, "Mario S. Mariveles vs. Court of Appeal, et al.") which, on March 13, 1989, granted his petition, ordered the Court of Appeals to cancel the entry of judgment in CA-G.R. CR No. 04482, reinstate the appeal, and admit the appellant's brief filed by his new counsel. The Court said:

It is true that the failure of counsel to file brief for the appellant which led to the dismissal of the appeal does not necessarily warrant the reinstatement thereof. However, where the negligence of counsel is so great that the rights of accused are prejudiced and he is prevented from presenting his defense, especially where the appellant raises issues which place in serious doubt the correctness of the trial court's judgment of conviction, the aforesaid rule must not be rigidly applied to avoid a miscarriage of justice. These teachings of jurisprudence are present in the case at bar.On the first aspect, the failure of petitioner's former counsel to file the brief, for reasons unknown and without any cause imputable to petitioner, amounted to deliberate abandonment of his client's interest and justifies reinstatement with consequent due consideration of petitioner's appeal through a new counsel. (pp. 106-107, Rollo).

On February 15, 1989, the administrative complaint was referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.The IBP's Committee on Bar Discipline investigated the complaint and held hearings. On March 3, 1992, it submitted to this Court a report/resolution finding:

In sum, what was committed by the respondent is a blatant violation of our Code of Professional Responsibility.

xxx xxx xxx

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

Suffice it to state that a lawyer has no business practicing his profession if in the course of that practice, he will eventually wreck and destroy the future and reputation of his client and thus disgrace the law profession. The last thing that his peers in the law profession and the Integrated Bar of the Philippines would do is to disrobe a member of the profession, for he has worked for the attainment of his career burning the midnight oil throughout school and passing the bar. The undersigned, however, could not find any mitigating circumstances to recommend a lighter penalty. Disbarment is the only recourse to remove a rotten apple if only to instill and maintain the respect and confidence of all and sundry to the noble profession. (pp. 249-250, Rollo)

The Court concurs with the above observations. The respondent demonstrated not only appalling indifference and lack of responsibility to the courts and his client but also a shameless disregard for his duties as a lawyer. He is unfit for membership in this noble profession.WHEREFORE, the Court finds respondent Attorney Odilon C. Mallari guilty of abandonment and dereliction of duty toward his client and hereby orders him DISBARRED from the legal profession and to immediately cease and desist from the practice of law. Let the Office of the Court Administrator and the Executive Judges of the Ninth, Tenth, Eleventh and Twelfth Judicial Regions, be furnished with copies of this resolution for dissemination to all the courts in those regions.VILL TRANSPORT SERVICE, INC., petitioner, vs.HON. COURT OF APPEALS, THE ENERGY CORPORATION, and the DEPUTY SHERIFF of the Regional Trial Court, Makati, Metro Manila, respondents.Romualdo M. Jubay for petitioner.Castillo, Laman, Tan & Pantaleon for private respondent. FERNAN, C.J.:pThe issue in this petition for review on certiorari is whether or not notice of a decision served upon counsel in a case who did not leave a forwarding address after he had moved from his address of record, is a valid service thereby making the decision final and executory after the lapse of the period to appeal.The facts as found by the Court of Appeals are as follows:In Civil Case No. 45167 before the Regional Trial Court of Makati, Branch CXLI, defendant Vill Transport Service, Inc. (Vill Transport for brevity) was held liable for damages for breach of contract in favor of the plaintiff Energy Corporation. Vill Transport was ordered to pay Energy Corporation US$25,524.75 or P191,435.62 as damages, P40,000 for charter fees, P33,931.65 for rental and maintenance costs and P63,750 for service fees, with all of these amounts being subject to 12% interest per annumfrom June 16, 1980, plus attorney's fees of P8,866.60.On June 7, 1985 a copy of the decision was sent by registered mail to Atty. Amante Pimentel, counsel of record of Vill Transport, at his address at 563 Tanglaw Street, Mandaluyong, Metro Manila. However, it was returned to the court with the notation that the addressee had moved out of his given address without leaving a forwarding address.On September 14, 1985, Energy Corporation moved for execution of the decision and on September 19, 1985, the court favorably acted on the motion. On September 24,1985, a writ of execution was therefore issued.A month later, Vill Transport filed an urgent motion for reconsideration of the order of September 19, 1985 and served notice of its intention to appeal. It contended that the decision had not as yet become final because it came to know of the decision only on October 21, 1985. It also claimed that the writ of execution was void as no copy of the motion for execution was served on it.Energy Corporation filed an opposition to said urgent motion pointing out that the decision had become final and executory since a copy of the decision was served on Vill transport through its counsel at his address of record and no appeal was perfected within the reglementary period of appeal. It added that a motion for execution of a final and executory judgment did not have to be with notice to defendant.Before the motion for reconsideration could be resolved by the court, Vill Transport filed a motion for new trial based on newly-discovered evidence. Again, without waiting for the resolution of said motion, it filed with the Court of Appeals a petition forcertiorari and mandamus with preliminary injunction aimed at the setting aside of the order of execution and the issuance of an order for a new trial.

On September 30, 1986, the Court of Appeals 1 rendered a decision dismissing the petition for lack of merit. 2 It held that petitioner's counsel was duty-bound to notify the trial court of any change of address and his failure to do so could not be excused. It added that the trial court had every reason to consider the service of its decision completed upon the expiration of five days from notice to counsel in the absence of prior notice by the latter of any change of address. It opined that "to hold that Rule 13, Sec. 8 cannot apply here because Atty. Pimentel did not get the notice, would be to encourage litigants or their attorneys to evade the service of judgments and orders by simply leaving their addresses without notice of their whereabouts." 3

Its motion for the reconsideration of said decision having been denied, Vill Transport interposed the instant petition for review oncertiorari.Petitioner admits the negligence of its counsel in not leaving a forwarding address but contends that its counsel was not actually notified of the registered letter containing a copy of the trial court's decision for he had moved from his address of record. Hence, service thereof could not have taken effect after the lapse of the five-day period mentioned in Rule 13, Section 8 of the Rules of Court. It invokes due process complaining that it was deprived of its right to appeal from the decision of the lower court on account of its failure to receive a copy of the decision.On the other hand, private respondent avers that the petition was prosecuted manifestly to delay execution of the decision of the lower court which had long become final and executory. It stresses the fact that, being designated by Section 2, Rule 13 of the Rules of Court to receive copies of all court processes, petitioner's counsel was duty-bound to inform the court of any changes in his address of record and therefore, should he fail to do so, service of such processes in his address of record should be considered complete and binding upon his client.We find for the private respondent.Section 8, Rule 13 of the Rules of Court provides that "(s)ervice by registered mail is complete upon actual receipt by the addressee; but if he fails to claim his mail from the post office within five (5) days from the date of first notice of the postmaster, service shall take effect at the expiration of such time." In Barrameda vs. Castillo, 4 the Court held that since the exception in service by registered mail refers to constructive service, not to actual receipt of the mail, it is but fair and just that there be conclusive proof that a first notice was sent by the postmaster to the addressee. While in the more recent case of De la Cruz vs.De la Cruz, 5 the Court appears to have adopted the more stringent rule of requiring not only that the notice of the registered mail be sent but that it should also be delivered to and received by the addressee, We find that this rule cannot be applied in this case wherein the element of negligence is present.Petitioner herein disputes that a first notice was ever sent to its counsel of record because "the post office just returned the registered letter and put the stampmark . . . 'Moved'" thereon. 6 To our mind, petitioner's contention is sufficient proof that indeed a first notice was sent to its counsel of record. Its non-receipt by the addressee, however, was due entirely to his neglect in informing the court of the fact that he had moved and had a new address. To cater to petitioner's rhetorical argument would put a premium on negligence and encourage the non-termination of cases by reason thereof.In Antonio vs. Court of Appeals, 7 the Court categorically stated that the requirement of conclusive proof of receipt of the registry notice "presupposes that the notice is sent to the correct address as indicated in the records of the court. It does not apply where, as in the case at bar, the notice was sent to the lawyer's given address but did not reach him because he had moved therefrom without informing the court of his new location. The service at the old address should be considered valid. Otherwise, no process can be served on the client through his lawyer if the latter has simply disappeared without leaving a forwarding address. There is no need to stress that service on the lawyer, if valid, is also valid service on the client he represents. The rule in fact is that it is on the lawyer and not the client that the service should first be made."Losing a case on account of one's counsel's negligence is a bitter pill to swallow for the litigant. But then, the Court is duty-bound to observe its rules and procedures. And, in the observance thereof for the orderly administration of justice, it cannot countenance the negligence and ineptitude of lawyers who wantonly jeopardize the interests of their clients. 8 On his part, a lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice. 9

Thus, a lawyer should so arrange matters that official and judicial communications sent by mail will reach him promptly and should he fail to do so, not only he but his client as well, must suffer the consequence of his negligence. 10 Failure to claim registered mail of which notice had been duly given by the postmaster is not excusable negligence that would warrant the reopening of a decided case. 11 The same rule applies in cases like the instant one where the counsel, through his negligence, caused the nondelivery of a judicial notice.WHEREFORE, the instant petition is hereby denied for lack of merit. This decision is immediately executory. Costs against the petitioner.B. R. SEBASTIAN ENTERPRISES, INC., petitioner, vs.

HON. COURT OF APPEALS, EULOGIO B. REYES, NICANOR G. SALAYSAY, in his capacity as Provincial Sheriff of Rizal, and ANTONIO MARINAS, in his capacity as Deputy Sheriff, respondents.Benito P. Fabie for petitioner.Ildefonso de Guzman-Mendiola for private respondents. DAVIDE, JR., J.:This is a petition for prohibition and mandamus, with prayer for preliminary injunction, to review the Resolution dated 10 November 1975 of respondent Court of Appeals in C.A.-G.R. No. 53546-R denying petitioner's motion to reinstate its appeal, earlier dismissed for failure to file the Appellant's Brief.The material operative facts of this case, as gathered from the pleadings of the parties, are not disputed.Eulogio B. Reyes, now deceased, filed an action for damages with the then Court of First Instance (now Regional Trial Court) of Rizal, Pasay City Branch, against the Director of Public Works, the Republic of the Philippines and petitioner herein, B. R. Sebastian Enterprises, Inc. The case was docketed as Civil Case No. 757-R. 1

On 7 May 1973, the trial court rendered a decision finding petitioner liable for damages but absolving the other defendants. 2

Petitioner, thru its counsel, the law firm of Baizas, Alberto and Associates, timely appealed the adverse decision to the respondent Court of Appeals, which docketed the case as C.A.-G.R. No. 53546-R. 3

During the pendency of the appeal, the plaintiff-appellee therein, Eulogio B. Reyes, died. Upon prior leave of the respondent Court, he was substituted by his heirs — Enrique N. Reyes, Felicisima R. Natividad, Donna Marie N. Reyes and Renne Marie N. Ryes — who are now the private respondents in this present petition.On 19 February 1974, petitioner, thru its then counsel of record, received notice to file Appellant's Brief within 45 days from receipt thereof. It had, therefore, until 5 April 1974 within which to comply.Counsel for petitioner failed to file the Brief; thus, on 9 July 1974, respondent Court issued a Resolution requiring said counsel to show cause why the appeal should not be dismissed for failure to file the Appellant's Brief within the reglementary period. 4 A copy of this Resolution was received by counsel for petitioner on 17 July 1974. 5

As the latter failed to comply with the above Resolution, respondent Court, on 9 September 1974, issued another Resolution this time dismissing petitioner's appeal:

It appearing that counsel for defendant-appellant failed to show cause why the appeal should not be dismissed (for failure to file the appellant's brief within the reglementary period which expired on April 5, 1974) within the period of 10 days fixed in the resolution of July 9, 1974, copy of which was received by said counsel on July 17, 1974; . . . 6

On 28 September 1974, petitioner, this time thru the BAIZAS LAW OFFICE, filed a motion for reconsideration 7 of the resolution dismissing its appeal alleging that as a result of the death of Atty. Crispin Baizas, senior partner in the law firm of BAIZAS, ALBERTO & ASSOCIATES, the affairs of the said firm are still being settled between Atty. Jose Baizas (son of Crispin Baizas) and Atty. Ruby Alberto, the latter having established her own law office; furthermore, Atty. Rodolfo Espiritu, the lawyer who handled this case in the trial court and who is believed to have also attended to the preparation of the Appellant's Brief but failed to submit it through oversight and inadvertence, had also left the firm.In its Resolution of 9 October 1974, respondent Court denied the motion for reconsideration, stating that:

Upon consideration of the motion of counsel for defendant-appellant, praying, on the grounds therein stated, that the resolution of September 9, 1974, dismissing the appeal, be set aside, and that appellant be granted a reasonable period of time within which to file its brief: considering that six (6) months had elapsed since the expiration of the original period and more than two and one-half (2-½) months since counsel received copy of the resolution requiring him to show cause why the appeal should not be dismissed for failure to file brief; Motion Denied. 8

No action having been taken by petitioner from the above Resolution within the period to file a petition for review, the same became final and executory, and the records of the case were remanded to the court of origin for execution.The trial court issued a writ of execution on 21 October 1975. 9 Pursuant thereto, respondent Provincial Sheriff and Deputy Sheriff attached petitioner's Hough Pay Loader with Hercules Diesel Engine and issued on 5 November 1975 a Notice of Sheriff's Sale, scheduling for Friday, 14 November 1975 at 10:00 o'clock in the morning, the auction sale thereof. 10

On 6 November 1975, petitioner filed with respondent Court a Motion to Reinstate Appeal with Prayer for Issuance of a Writ of Preliminary Injunction 11 dated 5 November 1975, and containing the following allegations:

1. That late as it may be, this Honorable Court has the inherent power to modify and set aside its processes, in the interest of justice, especially so in this case when the case was dismissed on account of the untimely death of Atty. Crispin D. Baizas, counsel of BRSEI

(B.R. Sebastian Enterprises, Inc.).2. That to dismiss the case for failure to file the appellant's brief owing to the untimely death of the late Atty. Crispin D. Baizas would be tantamount to denying BRSEI its (sic) day in court, and is, therefore, a clear and unmistakable denial of due process on the part of BRSEI.3. That to reinstate BRSEI's appeal would not impair the rights of the parties, since all that BRSEI is asking for, is a day in court to be heard on appeal in order to have the unfair, unjust and unlawful decision, set aside and reversed.

The respondent Court denied the said motion in its Resolution of 10 November 1975: 12

. . . it appearing that appellant was represented by the law firm of Baizas, Alberto & Associates, and while Atty. Baizas died on January 16, 1974, his law firm was not dissolved since it received the notice to file brief on February 19, 1974, and the copy of the Resolution of July 9, 1974, requiring appellant to show cause why the appeal should not be dismissed was received by the law firm on July 17, 1974 and no cause was shown; . . .

Hence, on 13 November 1975, petitioner filed the original petition 13 in this case against the Court of Appeals, Eulogio B. Reyes, Nicanor G. Salaysay, as Provincial Sheriff of Rizal, and Antonio Marinas, as Deputy Sheriff. The petition likewise prayed for the issuance of a Temporary Restraining Order.In the Resolution of 13 November 1975, this Court required respondents to comment on the petition within ten (10) days from receipt thereof, and issued a Temporary Restraining Order. 14

On 12 January 1976, respondents filed a Partial Comment on the Petition with a Motion to Suspend the Proceedings 15 on the ground that respondent Eulogio B. Reyes is already dead and his lawful heirs had already been ordered substituted for him during the pendency of the appeal before the respondent Court of Appeals.In the Resolution of 21 January 1976, this Court ordered petitioner to amend its petition within then (10) days from receipt of notice, and suspended the filing of respondents' Comment until after the amendment is presented and admitted. 16

In compliance therewith, petitioner filed on 9 February 1976 a Motion for Leave to Admit Amended Petition to which it attached the said Amended Petition. 17 The amendment consists in the substitution of Eulogio B. Reyes with his heirs.This Court admitted the Amended Petition 18 and required the respondents to file their Comment within ten (10) days from notice thereof, which they complied with on 5 April 1976. 19 Petitioner filed its Reply to the Comment on 29 April 1976. 20

In the Resolution of 12 May 1976, this Court denied the petition for lack of merit: 21

L-41862 (B.R. Sebastian Enterprises, Inc. vs. Court of Appeals, et. al.). — Considering the allegations, issues and arguments adduced in the amended petition for review on certiorari of the decision of the Court of Appeals, respondents' comment thereon, as well as petitioner's reply to said comment, the Court Resolved to DENY the petition for lack of merit.

However, on 31 May 1976, petitioner filed a motion for its reconsideration 22 claiming that since it was deprived of the right to appeal without fault on its part, the petition should be given due course.Respondents submitted on 22 July 1976 their Comment 23 to said Motion for Reconsideration.On 10 September 1976, this Court resolved to reconsider 24 its Resolution of 12 May 1976 and required both parties to submit simultaneously their respective Memoranda within thirty (30) days from notice thereof.Petitioner submitted its Memorandum on 5 November 1976 25 while respondents submitted theirs on 22 November 1976. 26 On 29 November 1976, this Court deemed the present case submitted for decision. 27

The sole issue to be addressed is whether or not the respondent Court of Appeals gravely abused its discretion in denying petitioner's motion to reinstate its appeal, previously dismissed for failure to file the Appellant's Brief.Petitioner, in its Memorandum, extensively expounds on respondent Court's authority to reinstate dismissed appeals and cites as basis thereof the decision of this Court in Heirs of Clemente Celestino vs. Court of Appeals, et al., 28 Indeed, in said case, this Court affirmed the resolution of the Court of Appeals — reinstating an appeal after being dismissed for failure by the appellants therein to file their brief, and after entry of judgment and remand of the records to the lower court — and cancelled the entry of judgment, requiring the lower court to return the records to the Court of Appeals and admit appellant's brief. Said case, however, had a peculiar or singular factual situation" which prompted the Court of Appeals to grant the relief and which this Court found sufficient to justify such action. As this Court, through Associate Justice Ramon Aquino, said:

We are of the opinion that under the peculiar or singular factual situation in this case and to forestall a miscarriage of justice the resolution of the Court of Appeals reinstating the appeal should be upheld.That Court dismissed the appeal of the Pagtakhans in the mistaken belief that they had abandoned it because they allegedly failed to give to their counsel the money needed for

paying the cost of printing their brief.But presumably the Appellate Court realized later that fraud might have been practised on appellants Pagtakhans since their oppositions were not included in the record on appeal. In (sic) sensed that there was some irregularity in the actuations of their lawyer and that Court (sic) itself had been misled into dismissing the appeal.Counsel for the Pagtakhans could have furnished them with copies of his motions for extension of time to file brief so that they would have known that the Court of Appeals had been apprised of their alleged failure to defray the cost of printing their brief and they could have articulated their reaction directly to the Court. Counsel could have moved in the Appellate Court that he be allowed to withdraw from the case or that the Pagtakhans be required to manifest whether they were still desirous of prosecuting their appeal or wanted a mimeographed brief to be filed for them (See People vs. Cawili, L-30543, August 31, 1970, 34 SCRA 728). Since counsel did none of those things, his representation that the appellants had evinced lack of interest in pursuing their appeal is difficult to believe.If the appellate court has not yet lost its jurisdiction, it may exercise its discretion in reinstating an appeal, having in mind the circumstances obtaining in each case and the demands of substantial justice (Alquiza vs. Alquiza, L-23342, February 10, 1968, 22 SCRA 494, 66 O.G. 276; C. Vda. de Ordoveza vs. Raymundo, 62 Phil. 275; Chavez vs. Ganzon, 108 Phil. 6).But even if it has already lost jurisdiction over the appeal by reason of the remand of the record to the lower court, it, nevertheless, has the inherent right to recall the remittitur or the remand of the record to the lower court if it had rendered a decision or issued a resolution which was induced by fraud practised upon it. Such a right is not affected by the statutory provision that after the record has been remanded, the appellate court has no further jurisdiction over the appeal (5 Am Jur. 2nd 433 citing Lovett vs. State, 29 Fla. 384, 11 So. 176; 84 ALR 595; State vs. Ramirez, 34 Idaho 623, 203 Pac. 279).

In the instant case, no fraud is involved; what obtain is simple negligence on the part of petitioner's counsel, which is neither excusable nor unavoidable. Petitioner thus failed to demonstrate sufficient cause to warrant a favorable action on its plea.As held in Chavez, et al. vs. Ganzon, et al., 29 and reiterated in Negros Stevedoring Co., Inc. vs. Court of Appeals, 30 We said:

Granting that the power or discretion to reinstate an appeal that had been dismissed is included in or implied from the power or discretion to dismiss an appeal, still such power or discretion must be exercised upon a showing of good and sufficient cause, in like manner as the power or discretion vested in the appellate court to allow extensions of time for the filing of briefs. There must be such a showing which would call for, prompt and justify its exercise (sic). Otherwise, it cannot and must not be upheld.

To justify its failure to file the Appellant's Brief, petitioner relies mainly on the death of Atty. Crispin Baizas and the supposed confusion it brought to the firm of BAIZAS, ALBERTO & ASSOCIATES. It says: 31

Petitioner, thru its president Bernardo R. Sebastian, engaged the services of Atty. Crispin D. Baizas to handle its defense in Civil Case No. 757-R; however, it appears that Atty. Baizas entered petitioner's case as a case to be handled by his law firm operating under the name and style "Crispin D. Baizas & Associates." Hence, the Answer to the complaint, Answer to Cross-Claim, and Answer to Fourth-party Complaint filed for petitioner in said case, evince that the law firm "Crispin D. Baizas & Associates" represents petitioner in the action.After rendition of the assailed Decision of the trial court, petitioner's counsel appears to have changed its firm name to "Baizas, Alberto & Associates." The appeal was thus pursued for petitioner by the law firm "Baizas, Alberto & Associates."On January 16, 1974, Atty. Crispin D. Baizas died as a result of a brief heart attack. In consequence (sic) of his death, the law firm "Baizas, Alberto & Associates" was in a terribly confused state of affairs. In effect, said law firm was dissolved. Atty. Ruby Alberto formed her own law office and other associates left the dissolved law firms (sic) joining other offices or putting up their own. Atty. Jose Baizas, son of deceased Crispin D. Baizas, took over the management of why may have been left of his father's office, it appearing that some, if not many, cases of the defunct office were taken over by the associates who left the firm upon its dissolution.But, none of the former partners and associates/assistants of the dissolved law firm filed the required appellant's brief for herein petitioner in its appealed case before the respondent Court of Appeals. No notice was served upon petitioner by any of the surviving associates of

the defunct law firm that its appellant's brief was due for filing or that the law office had been dissolved and that the law office had been dissolved and that none of the lawyers herein formerly connected desired to handle the appealed case of petitioner. . . .The circumstances that the law firm "Baizas, Alberto & Associates" was dissolved and that none of the associates took over petitioner's case, and no notice of such state of affairs was given to petitioner who could have engaged the services of another lawyer to prosecute its appeal before respondent Court, constitutes (sic) an UNAVOIDABLE CASUALTY that entitles petitioner to the relief prayed for. On the other hand, the non-dissolution of said law firm "Baizas, Alberto & Associates" will not defeat petitioner's claim for relief since, in such event, the said firm had ABANDONED petitioner's cause, which act constitutes fraud and/or reckless inattention the result of which is deprivation of petitioner's day in court. In the abovementioned Yuseco case, this Honorable Court had emphatically and forcefully declared that it will always be disposed to grant relief to parties aggrieved by perfidy, fraud, reckless inattention and downright incompetence of lawyers, which has the consequence of depriving their day (sic) in court.

We find no merit in petitioner's contentions. Petitioner's counsel was the law firm of BAIZAS, ALBERTO & ASSOCIATES and not merely Atty. Crispin Baizas. Hence, the death of the latter did not extinguish the lawyer-client relationship between said firm and petitioner.In Gutierrez & Sons, Inc. vs. Court of Appeals, 32 the appeal filed by the law firm of BAIZAS, ALBERTO & ASSOCIATES on behalf of respondent therein was dismissed for failure to comply with the requisites enumerated in the Rules of Court; the excuse presented by said counsel was also the death of Atty. Crispin Baizas. This Court held therein that:

The death of Attorney Baizas was not a valid excuse on the part of his associates for not attending to Alvendia's appeal, supposing arguendo that his office was solely entrusted with the task of representing Alvendia in the Court of Appeals. Attorney Espiritu (not Attorney Baizas) was the one actually collaborating with Viola in handling Alvendia's case. He did not file a formal appearance in the Court of Appeals.

Undoubtedly, there was inexcusable negligence on the part of petitioner's counsel in failing to file the Appellant's Brief. As revealed by the records, petitioner's counsel, the BAIZAS ALBERTO & ASSOCIATES law firm, received the notice to file Brief on 19 February 1974. It failed to do so within the 45 days granted to it. Said law firm also received a copy of the respondent Court's Resolution of 9 July 1974 requiring it to show cause why the appeal should not be dismissed for failure to file the Brief within the reglementary period. Petitioner chose not to comply with it, thus compelling the respondent Court to issue on 9 September 1974 a Resolution dismissing the appeal, a copy of which the former also received. Then, on 28 September 1974, the BAIZAS LAW OFFICE moved for reconsideration of the said Resolution which respondent Court denied in its Resolution of 9 October 1974. Nothing more was heard from petitioner until after a year when, on 6 November 1975, it filed the instant petition in reaction to the issuance of a writ of execution by the trial court following receipt of the records for the respondent Court.The "confusion" in the office of the law firm following the death of Atty. Crispin Baizas is not a valid justification for its failure to file the Brief. With Baizas' death, the responsibility of Atty. Alberto and his Associates to the petitioner as counsel remained until withdrawal by the former of their appearance in the manner provided by the Rules of Court. This is so because it was the law firm which handled the case for petitioner before both the trial and appellate courts. That Atty. Espiritu, an associate who was designated to handle the case, later left the office after the death of Atty. Baizas is of no moment since others in the firm could have replaced him.. Upon receipt of the notice to file Brief, the law firm should have re-assigned the case to another associate or, it could have withdrawn as counsel in the manner provided by the Rules of Court so that the petitioner could contract the services of a new lawyer.In the Negros Stevedoring case, supra., this Court held:

The negligence committed in the case at bar cannot be considered excusable, nor (sic) is it unavoidable. Time and again the Court has admonished law firms to adopt a system of distributing pleadings and notices, whereby lawyers working therein receive promptly notices and pleadings intended for them, so that they will always be informed of the status of their cases. Their Court has also often repeated that the negligence of clerks which adversely affect the cases handled by lawyers, is binding upon the latter.

Compounding such negligence is the failure of the BAIZAS LAW OFFICE, which filed on 28 September 1974 the motion for reconsider the Resolution of 9 September 1974, to take any further appropriate action after the respondent Court denied said motion on 9 October 1974. The appearance of said counsel is presumed to be duly authorized by petitioner. The latter has neither assailed nor questioned such appearance.The rule is settled that negligence of counsel binds the client. 33

Moreover, petitioner itself was guilty of negligence when it failed to make inquiries from counsel regarding its case. As pointed out by respondents, the president of petitioner corporation claims to be the intimate friend of Atty. Crispin Baizas; hence, the death of the latter must have been known to the former. 34 This fact should have made petitioner more vigilant with respect to the case at bar. Petitioner failed to act with prudence and diligence, thus, its plea that they were not accorded the right to procedural due process cannot elicit either approval or sympathy. 35

Based on the foregoing, it is clear that there was failure to show a good and sufficient cause which would justify the reinstatement of petitioner's appeal. Respondent Court of Appeals did not them commit any grave abuse of discretion when it denied petitioner's motion to reinstate its appeal.WHEREFORE, the Petition is hereby DISMISSED and the temporary restraining order issued in this case is lifted.JOSE S. DUCAT, JR., complainant, vs.ATTYS. ARSENIO C. VILLALON, JR. and CRISPULO DUCUSIN, respondents.

R E S O L U T I O NDE LEON, JR., J.:On August 14, 2000, a Decision was rendered by this Court in the above-entitled case, finding respondent Atty. Arsenio C. Villalon, Jr. guilty of gross misconduct. The dispositive portion of the Court's Decision reads:

WHEREFORE, respondent ATTY. ARSENIO C. VILLALON, JR. is hereby found guilty of gross misconduct, and he is SUSPENDED from the practice of law for a period of ONE (1) YEAR with a warning that a repetition of the same or similar act will be dealt with more severely. Respondent Villalon is further directed to deliver to the registered owner, complainant Jose Ducat Jr., the latter's TCT No. M-3023 covering the subject property within a period of sixty (60) days from receipt of this Decision, at his sole expense; and that failure on his part to do so will result in his disbarment.Let a copy of this Decision be attached to Atty. Villalon's personal record in the Office of the Bar Confidant and copies thereof be furnished the Integrated Bar of the Philippines.SO ORDERED.

From the afore-quoted Decision respondent Atty. Arsenio C. Villalon, Jr. seeks this reconsideration.The finding of guilt for gross misconduct was based on the Report and Recommendation of the Investigating Commissioner of the Integrated Bar of the Philippines upon whom the case was referred for investigation. We again quote the said findings for emphasis:

Complainant and his witness, Jose Ducat, Sr., testified in a straightforward, spontaneous and candid manner. The sincerity and demeanor they displayed while testifying before the Commission inspire belief as to the truth of what they are saying. More importantly, respondent failed to impute any ill motive on the part of the complainant and his witness which can impel them to institute the instant complaint and testify falsely against him. To be sure, the testimony of the complainant and his witness deserves the Commission's full faith and credence.Respondent's evidence, on the other hand, leaves much to be desired. His defense (that he considered himself the owner of the subject property which was allegedly given to him by Jose Ducat, Sr.) rings hollow in the face of a welter of contravening and incontrovertible facts.FIRST, the registered owner of the subject property is complainant Jose Ducat, Jr. Accordingly, respondent (being a lawyer) knew or ought to know that Jose Ducat, Sr. could not possibly give to him the said property unless the former is duly authorized by the complainant through a Special Power of Attorney. No such authorization has been given. Moreover, Jose Ducat, Sr. has vigorously denied having given the subject property to the respondent. This denial is not too difficult to believe considering the fact that he (Jose Ducat, Sr.) is not the owner of said property.SECOND, being a lawyer, respondent knew or ought to know that conveyance of a real property, whether gratuitously or for a consideration, must be in writing. Accordingly, it is unbelievable that he would consider himself the owner of the subject property on the basis of the verbal or oral "giving" of the property by Jose Ducat, Sr. no matter how many times the latter may have said that.THIRD, the Deed of Sale of Parcel of Land (Exh. "1" for the respondent and Exh. "A-2" for the complainant) allegedly executed by Jose Ducat, Sr. in favor of respondent Atty. Arsenio Villalon and/or Andres Canares, Jr. covering the subject parcel of land which respondent prepared allegedly upon instruction of Jose Ducat, Sr. is of dubious character. As earlier adverted to, Jose Ducat, Sr. is not the owner of said property. Moreover, said Deed of Sale of Parcel of Land is a falsified document as admitted by the respondent himself when he said that the signature over the typewritten name Maria Cabrido (wife of Jose Ducat, Sr.) was affixed by Jose Ducat, Sr. Being a lawyer, respondent knew or ought to know that the act of Jose Ducat, Sr. in affixing his wife's signature is tantamount to a forgery. Accordingly, he should have treated the said Deed of Sale of

Parcel of Land has (sic) a mere scrap of worthless paper instead of relying on the same to substantiate his claim that the subject property was given to him by Jose Ducat, Sr. Again, of note is the fact that Jose Ducat, Sr. has vigorously denied having executed said document which denial is not too difficult to believe in the light of the circumstances already mentioned.FOURTH, the Deed of Absolute Sale of Real Property (Exh. "2" for the respondent and Exh. "A-3" for the complainant) allegedly executed by Jose Ducat, Jr. in favor of Andres Canares, Jr. over the subject property (which respondent claims he prepared upon instruction of Jose Ducat, Sr.) is likewise of questionable character. Complainant Jose Ducat, Jr. has vigorously denied having executed said document. He claims that he has never sold said property to Andres Canares, Jr. whom he does not know; that he has never appeared before Atty. Crispulo Ducusin to subscribe to the document; and that he has never received the amount of P450,000.00 representing the consideration of said transaction. More importantly, the infirmity of the said Deed of Absolute Sale of Real Property was supplied by the respondent no less when he admitted that there was no payment of P450,000.00 and that the same was placed in the document only to make it appear that the conveyance was for a consideration. Accordingly, and being a lawyer, respondent knew or ought to know the irregularity of his act and that he should have treated the document as another scrap of worthless paper instead of utilizing the same to substantiate his defense.1

We remain convinced that respondent was remiss in his duty to abide by his sworn oath as a member of the bar to "do no falsehood nor consent to its commission"2 and further violated the mandate of his profession to "uphold the integrity and dignity of the legal profession."3

In the instant case, after a review of the records, we note that this is the first and only administrative complaint against respondent Atty. Villalon in his long career as a member of the bar. At one time, he was even the President of the Integrated Bar of the Philippines (IBP)-Manila 1 Chap

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