Legprof Cases 2

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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

A. M. No. 2104 August 24, 1989

NARCISO MELENDREZ and ERLINDA DALMAN, complainants,vs.ATTY. REYNERIO I. DECENA, respondent.

PER CURIAM:

In a sworn complaint 1 dated 25 September 1979, the spouses Erlinda Dalman and NarcisoMelendrez charged Reynerio I. Decena, a member of the Philippine Bar, with malpractice andbreach of trust. The complainant spouses alleged, among others, that respondent had, bymeans of fraud and deceit, taken advantage of their precarious financial situation and hisknowledge of the law to their prejudice, succeeded in divesting them of their only residential lotin Pagadian City; that respondent, who was their counsel in an estafa case against oneReynaldo Pineda, had compromised that case without their authority.

In his answer dated 18 March 1980, respondent denied all the charges levelled against him andprayed for the dismissal of the complaint.

By resolution dated 14 April 1980, the administrative complaint was referred to the Office of theSolicitor General for investigation, report and recommendation.

Accordingly, the Solicitor General forthwith deputized the City Fiscal of Pagadian City, Jorge T.Almonte, to conduct the necessary investigation, with instructions to submit thereafter this reportand recommendation thereon. Fiscal Almonte held several hearings on the administrative caseuntil 15 July 1982, when he requested the Solicitor General to release him from the duty ofinvestigating the case.

On 10 September 1982, the Solicitor General granted Fiscal Almonte's request and in his steadappointed the Provincial Fiscal of Zamboanga del Sur, Pedro S. Jamero, who resumed hearingson 15 June 1983.

Respondent filed with this Court on 9 June 1987, a motion seeking to inhibit Fiscal Jamero fromhearing the case followed by an urgent motion for indefinite postponement of the investigation.Both motions were denied by the Court in a Resolution dated 21 September 1987 withinstructions to the Solicitor General to complete the investigation of the administrative case andto render his report and recommendation thereon within thirty (30) days from notice.

On 19 July 1988, the Solicitor General submitted his Report and Recommendation 2 dated 21

June 1988. In as Report, after setting out the facts and proceedings held in the present case, theSolicitor General presented the following:

FINDINGS

Complainants allege that on August 5, 1975, they obtained from respondenta loan of P 4,000.00. This loan was secured by a real estate mortgage(Annex C, Complainants' Complaint, p. 16, records). lwph1.t In the saidReal Estate Mortgage document, however, it was made to appear that theamount borrowed by complainants was P5,000.00. Confronted by thisdiscrepancy, respondent assured complainants that said document was amere formality, and upon such assurance, complainants signed the same.The document was brought by complainant Narciso Melendres to a NotaryPublic for notarization. After the same was notarized, he gave the document

to respondent. Despite the assurance, respondent exacted fromcomplainants P500.00 a month as payment for what is beyond dispute

usurious interest on the P5,000.00 loan. Complainants religiously paid theobviously usurious interest for three months: September, October andNovember, 1975. Then they stopped paying due to financial reverses. Inview of their failure to pay said amounts as interest, respondent prepared anew document on May 7, 1976, a Real Estate Mortgage (Annex D,Complaint, p. 18, records) over the same lot 3125-C, replacing the formerreal estate mortgage dated August 5, 1975, but this time the sum indicatedin said new contract of mortgage is P 10,000.00, purportedly with interest at19% per annum. In this new Real Estate Mortgage, a special power ofattorney in favor of respondent was inserted, authorizing him to sell themortgaged property at public auction in the event complainants fail to paytheir obligation on or before May 30, 1976. Without explaining the provisionsof the new contract to complainants, respondent insisted that complainantssign the same, again upon the assurance that the document was a mereformality. Unsuspecting of the motive of respondent, complainants signedthe document. Complainants Narciso Melendres again brought the samedocument to a Notary Public for notarization. After the document wasnotarized, he brought the same to respondent without getting a copy of it.

Complainants, relying on the assurance of the respondent that the secondReal Estate Mortgage was but a formality, neither bothered to ask fromrespondent the status of their lot nor tried to pay their obligation. For theirfailure to pay the obligation, the respondent on October 12, 1976, appliedfor the extrajudicial foreclosure of the second real estate mortgage (Exhibit16, Respondent's Position Paper). All the requirements of Act No. 3135, asamended, re extrajudicial sale of mortgage were ostensibly complied with by

respondent. Hence, finally, title was transferred to him, and on June 20,1979, respondent sold the involved property to Trinidad Ylanan forP12,000.00.

When informed of the above by one Salud Australlado on the first week ofMarch 1979 (see Sworn Statement of complainant Narciso Melendres, p. 6,Folder No. 2 of case), and not having known the legal implications of theprovisions of the second Real Estate Mortgage which they had executed,complainants could not believe that title to their lot had already beentransferred to respondent and that respondent had already sold the same toa third person.

Upon learning of the sale in March, 1979, complainants tried to raise theamount of P10,000.00 and went to respondent's house on May 30, 1979 topay their obligation, hoping that they could redeem their property, althoughthree years had already lapsed from the date of the mortgage.

Respondent did not accept the proffered P10,000.00, but instead gavecomplainants a sheet of paper (Annex B, Complainants' Position Paper),which indicated that the total indebtedness had soared to P20,400.00. Thecomputation was made in respondent's own handwriting. Complainantswent home with shattered hopes and with grief in their hearts. Hence, theinstant competent for disbarment against respondent filed on October 5,1979.

Respondent DENIES all the allegations of complainants. He maintains thatwhat appears on the two documents allegedly executed by complainants,i.e., that they obtained a loan of P5,000.00 on August 5, 1975 and anotherP10,000.00 on May 7,1976, is allegedly the truth, and claims that he in truthdelivered the alleged amount of P5,000.00 to complainants and notP4,000.00. With respect to the second loan, respondent claims that hedelivered to complainants P8,000.00, plus the P2,000.00 loan previously

extended [to] complainants [by] one Regino Villanueva, which loan hadbeen indorsed to respondent for collection, thus making a total of


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P10,000.00, as appearing on said document. Respondent denies that heexacted usurious interest of 10% a month or P500.00 from complainants.He asserts that the fact that complainants were able to secure a loan fromthe Insular Bank of Asia and America (IBAA) only proves the truth of hisallegation that the title of the property, at the time complainants obtained aloan from IBAA on April 1976, was clear of any encumbrance, sincecomplainants had already paid the original loan of P5,000.00 obtained fromrespondent; that complainants knew fully well all the conditions of saidmortgage; and that his acquisition of the property in question was inaccordance with their contract and the law on the matter. Thus, he deniesthat he has violated any right of the complainants.

After weighing the evidence of both complainants and respondent, we findagainst respondent.

While complainants are correct in their claim that they actually obtained anactual cash of P4,000.00, they are only partly correct in the claim that out ofthe P10,000.00 appearing in the second Real Estate Mortgage, P6,000.00was applied to interest considering that not all the P6,000.00 but onlyP4,000.00 was applied to interest, computed as follows: the first loan ofP5,000.00 was supposedly due on August 31, 1975. Complainants paid10% monthly interest or P500.00 on September 30, 1975, October 31, 1975and November 30, 1975. Consequently, beginning December 31, 1975 upto May 31, 1976 (the date of the execution of the second Real EstateMortgage) a total of six (6) months lapsed. Six (6) months at P500.00equals P 3,000.00, which amount plus the P2,000.00 complainants' loan toone Engr. Villanueva (indorsed to respondent for collection) totalsP5,000.00. Adding this amount to the previous P5,000.00 indicated loansecured by the first mortgage results in P10,000.00, the amount appearingin the second Real Estate Mortgage. Section 7, Rule 130 of the Rules ofCourt provides:

SEC. 7. Evidence of written agreements. When the terms of anagreement have been reduced to writing, it is to be considered ascomplaining all such terms, and, therefore, there can be, as between theparties and their successors in interest, no evidence of the terms of theagreement other than the contents of the writing, except in the followingcases:

(a) Where a mistake or imperfection of the writing, or its failure to expressthe true intent and agreement of the parties, or the validity of the agreementis put in issue by the pleadings;

(b) Where there is an intrinsic ambiguity in the writing. The term"agreement" includes wills.

There is no dispute that the two documents denominated Real EstateMortgages covering the supposed original loan of P5,000.00 and theinflated P10,000.00, respectively, were voluntarily signed by thecomplainants. The general rule is that when the parties have reduced theiragreement to writing, it is presumed that they have made the writing theonly repository and memorial of the truth, and whatever is not found in thewriting must be understood to have been waived and abandoned.

However, the rule is not absolute as it admits of some exceptions, asaforequoted. One of the exceptions, that is, failure to express the true intentand agreement of the parties, applies in this case. From the facts obtainingin the case, it is clear that the complainants were induced to sign the RealEstate Mortgage documents by the false and fraudulent representations ofrespondent that each of the successive documents was a are formality.

While it may be true that complainants are not at all illiterate, respondent,being a lawyer, should have at least explained to complainants the legalimplications of the provisions of the real estate mortgage, particularly theprovision appointing him as the complainants' attorney-in-fact in the event ofdefault in payments on the part of complainants. While it may be concededthat it is presumed that in practice the notary public apprises complainantsof the legal implications of the contract, it is of common knowledge that mostnotaries public do not go through the desired practice. Respondent at leastcould have informed the complainants by sending a demand letter to themto pay their obligation as otherwise he would proceed to sell the lot at publicauction as per their contract. This respondent failed to do, despite the fact

that he knew fully wen that complainants were trying their best to raisemoney to be able to pay their obligation to him, as shown by the loanobtained by complainants from the IBAA on April 8, 1976. In this connection,it may be stated that complainants, per advice of respondent himself,returned the proceeds of the IBAA loan to the bank immediately on April 30,1976, considering that the net proceeds of the loan from said bank was onlyP4,300.00 and not enough to pay the indicated loan from respondent ofP5,000.00, which per computation of respondent would already haveearned interest of P2,500.00 for five (5) months (December 1975 to April,1976).

Respondent claims that complainants had paid him the original loan ofP5,000.00, and that this was the reason why complainants were able tomortgage the lot to the bank free from any encumbrance. This claim isincorrect. The reason why the title (T-2684) was free from any encumbrance

was simply because of the fact that the first Real Estate Mortgage for theindicated loan of P5,000.00 (the actual amount was only P 4,000.00) hadnot been annotated at the back of the title (see Annex B, p. 14, rec.).

Respondent also denies that complainants offered to him the amount ofPl0,000. 00 as payment of the loan, alleging that if the offer were true, hecould have readily accepted the same since he sold the lot for almost thesame amount, for only P12,000.00, a difference of a few thousand pesos.Respondent's denial is spacious.

Indeed, complainants made the offer, but respondent refused the same forthe simple reason that the offer was made on May 30,1979, three (3) yearsafter the execution of the mortgage on May 31, 1976. With its lapse of time,respondent demanded obviously the payment of the accumulatedsubstantial interest for three years, as shown by his own computation in asown handwriting on a sheet of paper (Annex C, Complainants' Position

Paper, Folder No. 2).lwph1.t

In view of all the foregoing, the observation made by the Hearing Officer isworth quoting:

In the humble opinion of the undersigned the pivotal question with respect tothis particular charge is whose version is to be believed. Is it the version ofthe complainants or the version of the respondent.

In resolving this issue the possible motive on the part of the complainants infiling the present complaint against the respondent must be carefullyexamined and considered. At the beginning there was a harmoniousrelationship between the complainants and the respondent so much so thatrespondent was even engaged as counsel of the complainants and it is buthuman nature that when respondent extended a loan to the complainantsthe latter would be grateful to the former. However, in the case at bar,

complainants filed a complaint against the respondent in spite of the greatdisparity between the status of the complainants and the respondent.


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Admittedly, respondent is in a better position financially, socially andintellectually. To the mind of the undersigned, complainants were onlycompelled to file the above entitled complaint against the respondentbecause they felt that they are so aggrieved of what the respondent hasdone to them. It is for this reason therefore that the undersigned is inclinedto believe the version of the complainants rather than of the respondent. Inaddition thereto, the respondent as a lawyer could really see to it that thetransaction between the complainants and himself on papers appear legaland in order. Besides, there is ample evidence in the records of its case thatrespondent is actually engaged in lending money at least in a limited wayand that the interest at the rate of ten per cent a month is but common

among money lenders during the time of the transactions in question'

Going now into the second charge, complainants alleged that respondent,who was their counsel (private prosecutor) in Criminal Case No. 734, forestafa, against accused Reynaldo Pineda, compromised the case with theaccused without their consent and received the amount of P500.00 asadvance payment for the amicable settlement, without however, giving tothe complainants the Id amount nor informing them of said settlement andpayment.

Again, respondent denies the allegation and claims that the amicablesettlement was with the consent of complainant wife Erlinda DalmanMelendre[z].

We are inclined to believe the version of the complainants.

It is admitted that complainants were not interested in putting the accusedReynaldo Pineda to jail but rather in merely recovering their money ofP2,000.00. At this stage, relationship between complainants and respondentwas not yet strained, and respondent, as counsel of the complainants in thiscase, knew that complainants were merely interested in said recovery.Knowing this, respondent on his own volition talked to accused and tried tosettle the case amicably for P2,000.00. He accepted the amount of P500.00as advance payment, being then the only amount carried by the accusedPineda. A receipt was signed by both respondent and accused Pineda(Annex M, p. 34, record). However, respondent did not inform complainantsabout this advance payment, perhaps because he was still waiting for thecompletion of the payment of P2,000.00 before turning over the wholeamount to complainants.

At any rate, complainants saw accused Pineda give the abovementionedP500.00 to respondent, but they were ashamed then to ask directly of

respondent what the money was all about.

On June 27, 1979, barely a month after May 30, 1979, when thecomplainants had already lost their trust and respect and/or confidence inrespondent upon knowing what happened to their lot and, more so, uponrespondent's refusal to accept the Pl0,000.00 offered by complainants toredeem the same, Narciso Melendre[z] saw the accused Pineda on his wayhome and confronted him on the P500.00 that had been given torespondent. Accused then showed complainant Melendres the receipt(Annex M, Id.) showing that the P500.00 was an advance payment for thesupposed settlement/dismissal of the case filed by complainants againsthim.

Sensing or feeling that respondent was fooling them, complainants thenfiled a motion before the court which was trying the criminal case andrelieved respondent as their counsel.

The Investigating Fiscal, who heard the case and saw the demeanor of thewitnesses in testifying, had this to say:

With respect to the second charge, the fact that respondent receivedP500.00 from Reynaldo Pineda is duly established. Both the complainantsand the respondent agreed that the said amount was given to therespondent in connection with a criminal case wherein the complainantswere the private offended parties: that Reynaldo Pineda is the accused andthat the respondent is the private prosecutor of the said case. The pivotalissue in this particular charge is whether the respondent received theamount of P500.00 from Reynaldo Pineda as an advance payment of an

amicable settlement entered into by the complainants and the accused orthe respondent received said amount from the accused without theknowledge and consent of the complainants. If it is true as alleged by therespondent that he only received it for and in behalf of the complainants asadvance payment of an amicable settlement why is it that the same wasquestioned by the complainants? Why is it that it was not the complainantswho signed the receipt for the said amount? How come that as soon ascomplainants knew that the said amount was given to the respondent, theformer filed a motion in court to relieve respondent as their counsel on theground that they have lost faith and confidence on him? If it is really truethat complainants have knowledge and have consented to this amicablesettlement they should be grateful to the efforts of their private prosecutoryet the fact is that they resented the same and went to the extent ofdisqualifying the respondent as their private prosecutor. Reynaldo Pinedahimself executed an affidavit belying the claim of the respondent.'

Clearly, the complained acts as described and levelled against respondentDecena are contrary to justice, honesty, modesty, or good morals for whichhe may be suspended. The moral turpitude for which an attorney may bedisbarred may consist of misconduct in either his professional or non-

professional attitude (Royong v. Oblena, 7 SCRA 859). The complainedacts of respondent imply something immoral in themselves, regardless ofthe fact whether they are punishable by law. The doing of the act itself, andnot its prohibition by statute, fixes the moral turpitude (Bartos vs. U.S. Dist.Court for District of Nebraska C.C.C. Neb] 19 F [2d] 722).

A parting comment.

All the above is not to say that complainants themselves are faultless.

Complainants should likewise be blamed for trusting the respondent toomuch. They did not bother to keep a copy of the documents they executed

and considering that they admitted they did not understand the contents ofthe documents, they did not bother to have them explained by anotherlawyer or by any knowledgeable person in their locality. Likewise, for aperiod of three years, they did not bother to ask for respondent the status oftheir lot and/or their obligation to him. Their complacency or apathyamounting almost to negligence contributed to the expedient loss of theirproperty thru the legal manuevers employed by respondent. Hence,respondent's liability merits mitigation. (Emphasis supplied)

and made the following recommendation:

WHEREFORE, it is respectfully recommended that Atty. Reynerio I. Decenabe suspended from the practice of law for a period of five (5) years.

3

The Office of the Solicitor General, through Fiscals Almonte and Jamero, held several hearingsduring the investigation of the present administrative case: City Fiscal Jorge T. Almonte was

able to hold six (6) actual hearings out of twenty-five (25) resettings 4 While only five (5) actualhearings, out of forty (40) resettings

5were held under Provincial Fiscal Pedro S. Jamero. In


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those hearings, the complainants presented a number of witnesses who, after their directtestimony, were cross-examined by the counsel for respondent; complainant Narciso Melendrezalso testified and was accordingly cross-examined. Considering the long delay incurred in theinvestigation of the administrative case and having been pressed by the Solicitor Generalimmediately to complete the investigation, Fiscal Jamero posed a change of procedure, fromtrial type proceedings to requiring the parties to submit their respective position papers. Thecomplainants immediately filed their position paper which consisted of their separate swornstatements, (that of Narciso Melendrez was in a question and answer form), their documentaryexhibits and an affidavit of one Jeorge G. Santos. Respondent also filed his counter-affidavit andaffidavits of his witnesses, with several annexes in support thereof In the healing of 28 October1987, which had been set for the cross examination of the complainants and their witnesses by

respondent, the complainants refused to submit themselves to cross-examination on the groundthat the order of the hearing officer dated 17 December 1986 declaring respondent's right ofcross examination as having been waived, had become final and executory. Respondentquestions now the evidentiary value of the complainants' position paper, not having passedthrough any cross-examination and argues that the non-submission of the complainants andtheir witnesses to cross-examination constitutes a denial of his right to due process.

We do not think respondent's right to confront the complainants and their witnesses against himhas been violated, Respondent in fact cross-examined complainant Narciso Melendrez andsome of the witnesses which complainants had presented earlier. As pointed out by the SolicitorGeneral, the record of the proceedings shows that respondent had all the opportunity to cross-examine the other witnesses of the complainants (those whose affidavits were attached tocomplainants' position paper) had he wanted to, but had forfeited such opportunity by asking fornumerous continuances which indicated a clear attempt on his part to delay the investigationproceedings. Respondent had in fact requested a total of twenty three (23) resettings during the

investigation proceedings: he had eight (8) under Fiscal Almonte and fifteen (15) under FiscalJamero. There were also instances where respondent asked for postponement and at the sametime reset the hearing to a specific date of his choice on which neither he nor as counsel wouldappear. That attitude of respondent eventually led the hearing officer to declare his(respondent's) right to cross-examine the complainants and their witnesses as having beenwaived in his order of 17 December 1986. Respondent can not now claim that he had beendeprived below of the opportunity to confront the complainants and their witnesses.

After carefully going through the record of the proceedings as well as the evidence presented byboth parties, we agree with the findings and conclusions of the Solicitor General.

The following acts of respondent:

1. making it appear on the 5 August 1975 real estate mortgage that theamount loaned to complainants was P5,000.00 instead of P4,000.00;

2. exacting grossly unreasonable and usurious interest;

3. making it appear in the second real estate mortgage of 7 May 1976 thatthe loan extended to complainants had escalated to P10,000.00;

4. failing to inform complainants of the import of the real mortgagedocuments and inducing them to sign those documents with assurancesthat they were merely for purposes of "formality";

5. failing to demand or refraining from demanding payment fromcomplainants before effecting extrajudicial foreclosure of the mortgagedproperty; and

6. failing to inform or refraining from informing complainants that the realestate mortgage had already been foreclosed and that complainants had aright to redeem the foreclosed property within a certain period of time.

constitute deception and dishonesty and conduct unbecoming a member of the Bar. We agreewith the Solicitor General that the acts of respondent "imply something immoral in themselvesregardless of whether they are punishable by law" and that these acts constitute moral turpitude,

being "contrary to justice, honesty, modesty or good morals." The standard required frommembers of the Bar is not, of course, satisfied by conduct which merely avoids collision with ourcriminal law. Even so, respondent's conduct, in fact, may be penalizable under at least onepenal statute the anti-usury law.

The second charge against respondent relates to acts done in his professional capacity, that is,done at a time when he was counsel for the complainants in a criminal case for estafa againstaccused Reynaldo Pineda. There are two (2) aspects to this charge: the first is that respondentDecena effected a compromise agreement concerning the civil liability of accused ReynaldoPineda without the consent and approval of the complainants; the second is that, havingreceived the amount of P500.00 as an advance payment on this "settlement," he failed to inform

complainants of that advance payment and moreover, did not turn over the P500.00 to thecomplainants. The facts show that respondent "settled" the estafa case amicably for P2,000.00without the knowledge and consent of complainants. Respondent informed complainants of theamicable "settlement" and of the P500.00 advance payment only after petitioner NarcisoMelendrez had confronted him about these matters. And respondent never did turn over tocomplainants the P500.00. Respondent is presumed to be aware of the rule that lawyers cannot"without special authority, compromise their clients' litigation or receive anything in discharge ofa client's claim, but the full amount in cash. 6 Respondent's failure to turn over to complainantsthe amount given by accused Pineda as partial "settlement" of the estafa case underscores hislack of honesty and candor in dealing with his clients.

Generally, a lawyer should not be suspended or disbarred for misconduct committed in hispersonal or non-professional capacity. Where however, misconduct outside his professionaldealings becomes so patent and so gross as to demonstrate moral unfitness to remain in thelegal profession, the Court must suspend or strike out the lawyer's name from the Rollo of

Attorneys. 7The nature of the office of an attorney at law requires that he shall be a person ofgood moral character. This qualification is not only a condition precedent to admission to thepractice of law; its continued possession is also essential for remaining in the practice of law, inthe exercise of privileges of members of the Bar. Gross misconduct on the part of a lawyer,although not related to the discharge of professional duties as a member of the Bar, which putshis moral character in serious doubt, renders him unfit to continue in the practice of law.

8

In the instant case, the exploitative deception exercised by respondent attorney upon thecomplainants in his private transactions with them, and the exacting of unconscionable rates ofinterest, considered together with the acts of professional misconduct committed by respondentattorney, compel this Court to the conviction that he has lost that good moral character which isindispensable for continued membership in the Bar.

WHEREFORE, respondent Reynerio I. Decena is hereby DISBARRED and his name shall bestricken from the Rollo of Attorneys. Let a copy of this Resolution be FURNISHED each to theBar Confidant and spread on the personal records of respondent attorney, and to the Integrated

Bar of the Philippines.


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properties forming part of the aforenamed [estate] to belong to the offspring of the lateRicardo O. Nuez;

"[3] d) Undersigned respondent did not utilize his profession to circumvent the law.Complainants Elisa L. Nuez and Imelda L. Nuez are actually renting thecornermost portion of the consolidated Lot Nos. 106 and 107 of the Baybay Cadastrewith an area only of 201 square meters, more or less, and when respondent wastrying to eject them, complainants negotiated with the respondent to buy their area ofLot No. 106 they rented and in fact actually advanced part of the agreedconsideration until their father Eugenio Nuez discovered an existing document of

sale with right to repurchase when they, ill-advised by their counsel [started] filing [a]series of criminal, civil and administrative cases against respondent and his wife atthe instigation of their lawyers, the late Atty. Jose C. Modina and their currentcounsel, Atty. Norjue I. Juego as a way of pressuring respondent and wife to give up[the] portion they are occupying [of] Lot No. 106[,] including [the] portion whichcomplainant Eduardo Nuez is now renting of Lot No. 89;

"4. That respondent in response to paragraph 7 of the complaint hereby admit thependency of Criminal Case No. R-4013-A which was personally filed by Elisa L.Nuez without the intervention from any government prosecutor but said case is nolonger pending in the Municipal Trial Court of Baybay, Leyte when then same wasrecommended for dismissal x x x. Later it was ordered dismissed by the Asst.Provincial Prosecutor Rosulo U. Vivero and approved by Provincial ProsecutorTeresita S. Lopez on February 22, 2001 x x x but complainants elevated the case for

review to the Department of Justice x x x. Because of the pendency of this criminalcase with the Department of Justice[,] a prejudicial question now exist[s] whereby thisadministrative case should be suspended until the resolution of that petition for reviewby the Department of Justice;

"5. That respondent specifically denies the material allegations of paragraph 8, 9 and10 of the complaint, the truth of the matter is that Amado Caballes at the instigation ofthe complain[an]ts and their counsel filed Criminal Case No. R-4011-A with theMunicipal Trial Court, Baybay, Leyte which is pending pre-trial. Like Criminal CaseNo. R-4013-A, the same was filed at the instance of Amado Caballes, x x x. Butbefore the filing of this present action initiated by Mr. Caballes s counsel andcomplainants Eduardo Nuez and Eugenio Nuez required Mr. Caballes to execute adocument of resale on August 14, 2001 despite knowing that the same has alreadybeen long redeemed by respondent x x x. Despite legal redemption, and despiteAmado Caballes having executed x x x a Deed of Resale which was witnessed bycomplainant Eugenio Nuez x x x, the complainants convinced Amado Caballes tofile Crim. Case No. R-4011-A[.] x x x. That by virtue of the pendency of Criminal CaseNo. R-4011-A, there exist[s] a prejudicial question and that further hearing of thepresent administrative action should be suspended until the outcome of this criminalcase;

"6. That respondent is duly authorized to negotiate for the disposal of any part of theIntestate Estate of the late Spouses Ricardo O. Nuez and Paterna Baltazar x x x.

"7. That regarding paragraph 12 and 13 of the complaint[,] this is a matter ofexistence and pend[ing] with [the IBP-CBD] and need not be a part of this complaintbecause this will be threshed out in another hearing[.] [T]he truth of the matter is thatrespondent had been already acquitted in Crim. Case No. CBU-29395 x x x.

"8. That similar to other cases filed at the instance of the Nuezes, there is also filedCrim. Case No. R-4012-A for Grave Threats by complainant Eduardo Nuez and nowpending in the Municipal Court of Baybay, Leyte despite the lack of witnesses x x x.Again, the pendency of this case will constitute a prejudicial question whichnecessarily will suspend further hearing of the present administrative action until thefinal outcome of the aforesaid Crim. Case No. R-4011-A;"

x x x x x x x x x.7

On August 8, 2002, complainants submitted their Reply.8 Thereafter, IBP-CPD

Commissioner Rebecca Villanueva-Maala scheduled the case for hearing onDecember 11, 2002. On this date, respondent requested and was a granted a periodof fifteen (15) days to file his rejoinder. The parties agreed to file simultaneousmemoranda on January 15, 2003, after which the case was to be consideredsubmitted for resolution.

91awphi1.nt

Report and Recommendation of the IBP

In her Report,10

Commissioner Villanueva-Maala found respondent guilty of seriousmisconduct. Thus, the investigating commissioner recommended his suspension fromthe practice of law for a period of one year.

In Resolution No. XV-2003-346 dated June 21, 2003, the Board of Governors of theIBP adopted the Report and Recommendation of Commissioner Villanueva-Maala.

The Resolution, together with the records of the case, was transmitted to this Courtfor final action, pursuant to Section 12(b) of Rule 139-B of the Rules of Court.Respondent also filed a Petition for Review under Rule 45 of the Rules of Court, toset aside Resolution No. XV-2003-346 of the IBP Board of Governors.

The Courts Ruling

We disagree with the findings and recommendation of the IBP, but find respondentsoffensive language against complainants and their counsel unbecoming an attorney.

Administrative Liability of Respondent

The legal profession exacts a high standard from its members. Lawyers shall notengage in conduct that adversely reflects on their fitness to practice law. Neither shallthey, whether in public or in private life, behave in a scandalous manner to thediscredit of the legal profession.

11 In gr_Gonzaga v. Villanueva,

12 this Court, citing

Tucay v. Tucay,13held thus:

"A lawyer may be disbarred or suspended for any violation of his oath, a patentdisregard of his duties, or an odious deportment unbecoming an attorney. Among thegrounds enumerated in Section 27, Rule 138 of the Rules of Court are deceit;malpractice; gross misconduct in office; grossly immoral conduct; conviction of acrime involving moral turpitude; any violation of the oath which he is required to takebefore admission to the practice of law; willful disobedience of any lawful order of asuperior court; corrupt or willful appearance as an attorney for a party to a casewithout authority to do so. The grounds are not preclusive in nature even as they arebroad enough as to cover practically any kind of impropriety that a lawyer does orcommits in his professional career or in his private life. A lawyer must at no time bewanting in probity and moral fiber, which are not only conditions precedent to his

entrance to the Bar but are likewise essential demands for his continued membershiptherein."14
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However, the penalties of disbarment and suspension are severe forms of disciplinaryaction and must be imposed with great caution.

15 The allegations in the Complaint

were not substantiated by clear evidence; they were bereft of convincing proof ofrespondents deceit and gross misconduct.

The admission of respondent that there are various cases filed or pending againsthim does not ipso facto constitute serious misconduct. His contention that thepending cases against him pose a prejudicial question that will bar the instantadministrative case is untenable. Likewise bereft of merit, however, is the finding ofthe IBP investigating commissioner that the mere existence of the same pending

cases constitute serious misconduct on the part of respondent.

Under Section 27 of Rule 138, conviction of a crime involving moral turpitude is aground for disbarment or suspension. Suspension or disbarment may follow as amatter of course, upon a finding that the crime a lawyer has been convicted ofinvolves moral turpitude. By such conviction, such lawyer has become unfit to upholdthe administration of justice and is no longer possessed of good moral character.

16In

the present case, however, while respondent has been charged with several criminalcases involving moral turpitude, he has yet to be convicted of any of them.

Without clear and convincing evidence that he committed acts that allegedlyconstituted serious misconduct, the mere existence of pending criminal chargescannot be a ground for disbarment or suspension of respondent. To hold otherwisewould open the door to harassment of attorneys through the mere filing of numerous

criminal cases against them.Respondent contends that his right to due process was violated when the IBPinvestigating commissioner failed to conduct a formal investigation.

17As borne by the

records, Investigating Commissioner Villanueva-Maala conducted hearings on thecase on June 5 and June 26, 2002, during which counsel for respondent, Atty.Logares, appeared. Respondent was allowed to file his Answer, as well as hisRejoinder. And, more important, he himself appeared at the December 11, 2002hearing when the parties agreed to file simultaneous memoranda, after which thecase was deemed submitted for resolution. Records show that respondent filed hisMemorandum on January 29, 2003. Hence, he cannot claim that he was not givenample opportunity to rebut the charges filed against him.1awphi1.nt

While we are not convinced that complainants have clearly and convincingly proventhe charges of serious misconduct, we do, however, note the use of offensivelanguage in respondents pleadings. The Code of Professional Responsibilitymandates:

CANON 8 A lawyer shall conduct himself with courtesy, fairness, and candor towardhis professional colleagues, and shall avoid harassing tactics against opposingcounsel.

Rule 8.01 A lawyer shall not, in his professional dealings, use language which isabusive, offensive or otherwise improper.

In his Memorandum18

dated January 15, 2003, the opposing counsel, Atty. Norjue I.Juego, points out the manner and tenor of the language in the Answer

19 and the

Rejoinder of respondent.20

The latter suggested that complainants and their counselhad caused the filing of several baseless suits, including the present charge, merely

to harass and place him in a bad light.21

He hurled insulting language in describingthe opposing counsel

22and cast doubts on the latters integrity by implying that the

lawyer had instigated the filing of the so-called baseless suits, violated the rules onnon-forum shopping and committed malpractice.

23

Indeed, these statements, particularly the words "who he is despite x x x hisshortness not only in size but in arrogance," constitute conduct unbecoming amember of the legal profession and cannot be countenanced by this Court.

A lawyers language may be forceful, but should always be dignified; emphatic, butrespectful as befitting an advocate. Arguments, whether written or oral, should begracious to both court and opposing counsel and should use such language as may

be properly addressed by one gentleperson to another.

24

WHEREFORE, Atty. Arturo B. Astorga is ACQUITTED of the charge of seriousmisconduct, but is held liable for conduct unbecoming an attorney and is FINED twothousand pesos.

SO ORDERED.
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(1) Respondent's suspension from the practice of law for three (3) months on the firstcharge; and

(2) Respondent's indefinite suspension from the practice of law on the second charge.

(ibid., p. 57)

The CBD held that the dismissal of the criminal cases against respondent for falsificationand use of falsified documents (Criminal Case No. 11768) and for concubinage (I.S. No.93-578) will not bar the filing of an administrative case for disbarment against him. In acriminal case, proof beyond reasonable doubt is required for conviction, while in an

administrative complaint, only a preponderance of evidence is necessary.The CBD gave credence to the NBI Report that "the questioned s ignatures (referring to thesignatures appearing in the loan agreements, contracts of mortgage, etc.) and thestandard sample signatures of respondent were written by one and the same person."This affirms the allegation of complainant Rosa Yap Paras that her husband forged hersignatures in those instruments. Respondent denies this but his denial wasunsubstantiated and is, therefore, self-serving.

In finding respondent liable for Immorality, the CBD relied heavily on the uncontrovertedsworn affidavit-statements of respondent's children and three other eyewitnesses torespondent's illicit affair with Ms. Jocelyn Ching. For a better appreciation of theirstatements, their affidavits are hereby reproduced in full. Thusly,

"I, DAHLIA Y. PARAS, of legal age, single, resident of Bindoy, Negros Oriental, butpresently living in Dumaguete City, after being duly sworn hereby depose and say:

1. I am a nurse by profession. I finished my BSN degree at the College of Nursing, SillimanUniversity.

2. My mother is Rosa Yap Paras and my father Justo J. Paras. My father has left the familyhome in Bindoy and now lives at his mother's house at San Jose Ext., Dumaguete City.

3. My father has a "kabit" or concubine by the name of Ma. Jocelyn Ching. They have achild named Cyndee Rose, who was delivered at the Silliman University Hospital MedicalCenter on July 19, 1990.

4. Jocelyn used to be the secretary of my father and Atty. Melchor Arboleda when theypractice law together in 1988 to 1989. Their relationship started in 1989. When shebecame pregnant, my father rented an apartment for her at the Amigo Subdivision,Dumaguete City.

5. Following delivery of the baby, my father built a house for Jocelyn in Maayong Tubig,Dauin, Negros Oriental. My father spend time there often with Jocelyn and their child.

6. I used to visit my father at San Jose Extension these past years, and almost every time Iwas there, I would see Jocelyn, sitting, watching TV, serving coffee in my father's lawoffice, and one time, she was washing my father's clothes.

7. I first saw their child Cyndee Rose in 1992, about early May, at San Jose Extension. Iwas there to ask for my allowance. He was there at the time, and when I looked at CyndeeRose closely, I became convinced that she was my father's daughter with Jocelyn.

8. Incidentally, I had an elder sister also named Cindy Rose (now deceased).

9. In September 1992 when I went to visit my father, I saw toys and child's clothes in my

father's room.

10. Whenever, I saw Jocelyn at San Jose Extension, I wanted to talk to her or be alonewith her, but she would deliberately avoid me. I could see that she was hiding somethingfrom me." p. 109, Records.

SUPPLEMENTAL AFFIDAVIT

x x x x x x x x x

1. . . . sometime during the period of April-September, 1992, I made several visits to myfather at his mother's house in San Jose Extension, Dumaguete City, where he had movedafter he left our home in Bindoy;

2. That these visits were made on different times and different days of the week;

3. That most of my visits, I would meet a woman who was also living at my father's place.This woman is now known to me to be Ma. Jocelyn Ching;

4. That my basis for observing that Ms. Ching was living in my father's house is that duringmy visits, whether during office hours or after office hours, I would meet her at my father'splace, not his office; she was wearing house clothes and slippers, such as skimpy clothes,shorts and T-shirt, not street or office clothes; she was generally unkempt, not made up forwork or going out; on one occasion, I even saw her, washing my father's clothes as well asa small child's clothing; and she conducted herself around the house in the manner ofsomeone who lived there;

5. That on one of my visits, I confirmed that Ms. Ching was living with my father from JosieVailoces, who was then a working student living at my father's place;

6. Ms. Vailoces subsequently confirmed under oath the fact that my father and Ms. JocelynChing were living together as husband and wife at my father's place in a deposition takenin connection with Civil Case No. 10613, RTC-Dumaguete City, Branch 30, the HonorableEnrique C. Garovillo, presiding. A copy of the transcript of the deposition of Ms. Vailoces isalready part of the record of this case. For emphasis, photocopies of the pertinent portionof the written deposition of Josie Vailoces is hereto attached as Annexes "A"and "A-1." p.111, Records

Respondent's son has this to say:

"I, RHOUEL Y. PARAS, 15 years old, single, resident of Bindoy, Negros Oriental, butpresently living in Dumaguete City, after being duly sworn according to law, depose andsay:

1. I am a high school student at the Holy Cross High School, Dumaguete City.

2. My mother is Rosa Yap Paras, and my father Justo J. Paras, a lawyer.

3. My father has left our home in Bindoy, and now lives at his mother's house in San JoseExtension, Dumaguete City. He is not giving us support any more.

4. However, from October 1991 to December 1992, I was getting my allowance of P50.00a week. I would go to their house at San Jose Extension and personally ask him for it.

5. In October 1992, between 11:30 AM and 1:00 PM, I went to San Jose Extension for myweekly allowance. I asked Josephus, an adopted son of my father's sister, if my father wasaround. Josephus said my father was in his room.

6. So I went direct to his room and because the door was not locked, I entered the roomwithout knocking. There I saw my father lying in bed side by side with a woman. He wasonly wearing a brief. The woman was wearing shorts and T-shirt.


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7. They both appeared scared upon seeing me. My father hurriedly gave me P100.00 and Ileft immediately because I felt bad and embarrassed.

8. Before that incident, I used to see the woman at my father's house in San JoseExtension. Every time I went to see my father, she was also there.

9. I later came to know that she was Ms. Jocelyn Ching, and that she was my father's"kabit" or concubine.

10. I am no longer getting my weekly allowance from my father." p. 112, Records

Added to the foregoing sworn statements of respondent's children is the damagingstatement under oath of Virgilio Kabrisante who was respondent's secretary whenrespondent was a mayor of Bindoy, Negros Oriental which reads as follows:

"I, VIRGILIO V. KABRISANTE, of legal age, married, Filipino, a resident of Malaga,Bindoy, Negros Oriental, after having been sworn in accordance with law, do herebydepose and state that:

1. I personally know Justo J. Paras, having been his secretary during his incumbency asMayor of Bindoy, Negros Oriental. In fact, through the latter's recommendation andintercession, I was later on appointed as OIC Mayor of the same town from December1986 to January 1987.

2. When Justo J. Paras decided to practice law in Dumaguete City, I became his personalaide and performed various chores for the same. As his personal aide, I stayed in thesame house and room with the latter.

3. Sometime in January 1989, Justo J. Paras confided to me that he felt attracted to mylady friend named Ma. Jocelyn A. Ching. He then requested me to invite the latter to adinner date at Chin Loong Restaurant.

4. Conveying the invitation which was accepted by Ma. Jocelyn Ching, the latter, Justo J.Paras and myself then had dinner at the above-mentioned restaurant.

5. At the behest of Justo J. Paras, I invited Ma. Jocelyn A. Ching, on several occasions,always to a picnic at a beach in Dauin, Negros Oriental. Said invitations were alwaysaccepted by the latter.

6. At each of the above-mentioned picnics, I observed that Justo J . Paras and Ma. JocelynA. Ching had become more and more intimate with each other.

7. Sometime in March 1989, at around 7:00 o'clock in the evening on a Friday, Iaccompanied Justo J. Paras to the area in front of the Silliman University Medical Center,where he said he was going to meet someone.

8. After waiting for a few minutes, Ma. Jocelyn Ching arrived and immediately boarded atthe back seat of the Sakbayan vehicle I was driving for Justo J. Paras. The latter thenrequested me to drive both of them (Justo Paras and Ma. Jocelyn A. Ching) to HoneybeeMotel somewhere in Sibulan, Negros Oriental.

9. When we arrived there, Justo J. Paras asked me to wait for them outside the room,while he and Ma. Jocelyn A. Ching entered the said room.

10. I waited outside the room for about two (2) hours after which the two of them emergedfrom the room. We then proceeded to Chin Loong to eat supper.

11. After eating supper, we dropped Ma. Jocelyn A. Ching off in front of the DumagueteCity Cockpit.

12. This meeting was repeated two more times, at the same place and always on a Friday.

13. On April 3, 1988, I went home to Bindoy and stopped working for Justo Paras." pp. 56 -57, Records.

SUPPLEMENTAL AFFIDAVIT

x x x x x x x x x

1. Sometime in May 1989, I returned to Dumaguete City to look for a job, having beenjobless since I left Dumaguete City to go home to Bindoy, Negros Oriental.

2. While looking for a job, I stayed at the house where my friend, Bernard Dejillo wasstaying at Mangnao, Dumaguete City. My friend Bernard Dejillo was occupying a room atthe second floor of the said house which he shared with me.

3. Sometime in the last week of May 1989, in the course of my job hunting, I met Justo J.Paras. Having not seen each other for some time, we talked for a while, discussing mattersabout the barangay elections in Bindoy, Negros Oriental.

4. When our discussion was finished, Justo J. Paras asked me where I was staying, towhich I answered that I was staying at the aforementioned house. He then requested meto find out if there was an available room at the said house which he could rent with Ma.Jocelyn A. Ching. I told him that I would have to ask my friend Bernard Dejillo about thematter.

5. When I arrived at the house that evening, I asked my friend Bernard Dejillo about thematter, to which the latter signified his approval. He told me that a room at the first floor ofthe same house was available for rental to Justo Paras and Ma. Jocelyn A. Ching.

6. The next day, I immediately informed Justo J. Paras of Bernard Dejillo's approval of hisrequest.

7. Sometime in the first week of June 1989, Ma. Jocelyn Ching moved in to the room shehad rented at the first floor of the house I was also s taying at.

8. Almost every night thereafter, Justo J. Paras would come to the house and stayovernight. When he came at night Justo J. Paras and I would converse and whileconversing, drink a bottle of Tanduay Rum. Oftentimes, Ma. Jocelyn Ching would join inour conversation.

9. After we finish drinking and talking, Justo J. Paras and Ma. Jocelyn Ching would enterthe room rented and sleep there, while I would also go upstairs to my room.

10. The next morning I could always observe Justo J. Paras came out of said room anddepart from the house.

11. The coming of Justo J. Paras to the house I was staying ceased after about one (1)month when they transferred to another house.

12. I myself left the house and returned to Bindoy, Negros Oriental some time in June1989.

13. Sometime in January 1993, on a Saturday at about noontime, I went to the house ofJusto J. Paras to consult him about a Kabataang Barangay matter involving my son. WhenI arrived at his house, I noticed that the same was closed and there was no one there.

14. Needing to consult him about the above-mentioned matter, I proceeded to theresthouse of Justo J. Paras located at Maayong Tubig, Dauin, Negros Oriental.

15. When I arrived at the said resthouse, Justo J. Paras was not there but the person incharge of the said resthouse informed me that Justo J. Paras was at his house at


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Barangay Maayong Tubig, Dauin, Negros Oriental. The same person also gave medirections so that I could locate the house of Justo J. Paras he referred to earlier.

16. With the help of the directions given by said person, I was able to locate the house ofJusto J. Paras.

17. At the doorway of the said house, I called out if anybody was home while knocking onthe door.

18. After a few seconds, Ma. Jocelyn Ching opened the door. Upon seeing the latter, Iasked her if Justo J. Paras was home. She then let me in the house and told me to sit

down and wait for a while. She then proceeded to a room.19. A few minutes later, Justo J. Paras came out of the same room and sat down near me.I noticed that the latter had just woke up from a nap.

20. We then started to talk about the matter involving my son and sometime later, Ma.Jocelyn Ching served us coffee.

21. While we were talking and drinking coffee I saw a little girl, about three (3) years old,walking around the sala, whom I later came to know as Cyndee Rose, the daughter ofJusto J. Paras and Ma. Jocelyn Ching.

22. After our conversation was finished, Justo J. Paras told me to see him at this office atSan Jose Extension, Dumaguete City, the following Monday to discuss the matter somemore.

23. I then bid them goodbye and went home to Bindoy, Negros Oriental.

24. I am executing this affidavit as a supplement to my affidavit dated 22 July 1993." pp.58-60, Records

(ibid., pp. 44-52)

The CBD likewise gave credence to the sworn affidavits and the deposition of two otherwitnesses, namely, Salvador de Jesus, a former repairman of the Paras' household, and,Josie Vailoces, a working student and former ward of the Paras' family, who both gavepersonal accounts of the illicit relationship between respondent and Jocelyn Ching, whichled to the birth of Cyndee Rose. De Jesus swore that while doing repair works in the Paras'household he observed Ms. Ching and Cyndee Rose practically living in the Paras' house(p. 85, Rollo, Annex "H"). Vailoces, on the other hand, deposed that she was asked byrespondent Paras to deliver money to Ms. Ching for the payment of the hospital bill aftershe gave birth to Cyndee Rose. Vailoces was also asked by respondent to procure

Cyndee Rose Paras' baptismal certificate after the latter was baptized in the house ofrespondent; she further testified that in said baptismal certificate, respondent appears asthe father of Cyndee Rose which explains why the latter is using the surname "Paras." (p.87, Annex "I", Rollo)

The findings and the recommendations of the CBD are substantiated by the evidentiaryrecord.

ON THE CHARGE OF FALSIFICATION OF COMPLAINANT'S SIGNATURE

The handwriting examination conducted by the National Bureau of Investigation on thesignatures of complainant Rosa Yap Paras and respondent Justo de Jesus Paras vis--visthe questioned signature "Rosa Y. Paras" appearing in the questioned bank loandocuments, contracts of mortgage and other related instrument, yielded the followingresults:

CONCLUSION:

1. The questioned and the standard sample signatures JUSTO J. PARAS were written byone and the same person.

2. The questioned and the standard sample signatures ROSA YAP PARAS were notwritten by one and the same person.

(Annex "B", Rollo, p. 26, emphasis ours;)

The NBI did not make a categorical statement that respondent forged the signatures ofcomplainant. However, an analysis of the above findings lead to no other conclusion than

that the questioned or falsified signatures of complainant Rosa Y. Paras were authored byrespondent as said falsified signatures were the same as the sample signatures ofrespondent.

To explain this anomaly, respondent presented a Special Power of Attorney (SPA)executed in his favor by complainant to negotiate for an agricultural or crop loan from theBais Rural Bank of Bais City. Instead of exculpating respondent, the presence of the SPAplaces him in hot water. For if he was so authorized to obtain loans from the banks, thenwhy did he have to falsify his wife's signatures in the bank loan documents? The purposeof an SPA is to especially authorize the attorney-in-fact to sign for and on behalf of theprincipal using his own name.

ON THE CHARGE OF IMMORALITY AND CONCUBINAGE

The evidence against respondent is overwhelming. The affidavit-statements of his children

and three other persons who used to work with him and have witnessed the acts indicativeof his infidelity more than satisfy this Court that respondent has strayed from the maritalpath. The baptismal certificate of Cyndee Rose Paras where respondent was named asthe father of the child (Annex "J", Rollo, p. 108); his naming the child after his deceasedfirst-born daughter Cyndee Rose; and his allowing Jocelyn Ching and the child to live intheir house in Dumaguete City bolster the allegation that respondent is carrying on an illicitaffair with Ms. Ching, the mother of his illegitimate child.

It is a time-honored rule that good moral character is not only a condition precedent toadmission to the practice of law. Its continued possession is also essential for remaining inthe practice of law (People vs. Tunda, 181 SCRA 692 [1990]; Leda vs. Tabang, 206 SCRA395 [1992]). In the case at hand, respondent has fallen below the moral bar when heforged his wife's signature in the bank loan documents, and, sired a daughter with awoman other than his wife. However, the power to disbar must be exercised with greatcaution, and only in a clear case of misconduct that seriously affects the standing and

character of the lawyer as an officer of the Court and as a member of the bar (Tapucar vs.Tapucar, Adm. Case No. 4148, July 30, 1998). Disbarment should never be decreedwhere any lesser penalty, such as temporary suspension, could accomplish the enddesired (Resurrecion vs. Sayson, 300 SCRA 129 [1998]).

In the light of the foregoing, respondent is hereby SUSPENDED from the practice of lawfor SIX (6) MONTHS on the charge of falsifying his wife's signature in bank documents andother related loan instruments; and for ONE (1) YEAR from the practice of law on thecharges of immorality and abandonment of his own family, the penalties to be servedsimultaneously. Let notice of this decision be spread in respondent's record as an attorney,and notice of the same served on the Integrated Bar of the Philippines and on the Office ofthe Court Administrator for circulation to all the courts concerned.

SO ORDERED.


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Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

A.C. No. 4914 March 3, 2004

SPOUSES JENELINE DONATO and MARIO DONATO, complainants,vs.ATTY. ISAIAH B. ASUNCION, SR., respondent.

D E C I S I O N

SANDOVAL-GUTIERREZ, J .:

This is a complaint for disbarment filed by spouses Jeneline and Mario Donatoagainst Atty. Isaiah B. Asuncion, Sr.

The complaint alleges that on July 22, 1994, complainant spouses and respondentAtty. Asuncion, Sr. executed a Contract to Sell wherein the latter conveyed to theformer his parcel of land with an area of 10,776 square meters (or 1.0776 hectare)situated at San Miguel, Pangasinan covered by Tax Declaration No. 34-12256. Theparties agreed that the purchase price is in the amount of P187,500.00 payable byinstallments.

On December 20, 1994, after the complainants had paid the last installment, theparties executed a Deed of Absolute Sale. This document was prepared byrespondent wherein he made it appear that the consideration is only P50,000.00 inorder to reduce the amount of the corresponding capital gain tax.

More than two years later, or on January 10, 1997, the National Power Corporation(NAPOCOR) filed with the Regional Trial Court (RTC), Branch 46, Urdaneta,Pangasinan, an action for eminent domain, docketed as Civil Case No. U-6293.Among the parcels of land being expropriated was the lot purchased by complainantsfor which NAPOCOR was willing to pay P3,000,000.00.

Respondent then offered his legal services to complainants and demanded 12% ofwhatever amount they will receive from NAPOCOR.

When respondent learned that complainants intended to hire the services of another

lawyer, he threatened them by filing with the RTC, Branch 45, Urdaneta, PangasinanCivil Case No. U-6352 for reformation of instrument. In his complaint, he alleged thatthe contract executed by the parties is not a deed of sale but an equitable mortgagebecause the price of the lot (P50,000.00) stated in the contract is unusuallyinadequate compared to NAPOCORs offer ofP3,000,000.00.

The complaint further alleges that in filing Civil Case No. U-6352 for reformation ofinstrument, respondent "has dragged them to useless and expensive litigation." Hisact is "contrary to law and morality" which warrants his disbarment.

In his comment on the instant administrative complaint, respondent claimed thatcomplainants violated the rule on forum shopping. According to him, the issue raisedin this administrative complaint and in complainants answer to his complaint in CivilCase No. U-6352 for reformation of instrument is the same, i.e., "the legality and

morality" of the filing of this civil case.

In a Resolution dated February 7, 1998, we referred this case to the Integrated Bar ofthe Philippines (IBP) for investigation, report and recommendation.

In her Report and Recommendation dated March 3, 2003, Atty. Rebecca Villanueva-Maala, IBP Hearing Commissioner, made the following findings:

"After a careful study and consideration of the facts and evidence presented, we findrespondent to have committed gross misconduct. In the Civil Case No. U-6352 beforethe RTC, Branch 45, Urdaneta City, for Reformation of Instrument, respondent wasnot telling the truth when he alleged under paragraph 6 That although the document

is captioned Deed of Absolute Sale, the true intention of the parties is not expressedby reason of mistake on the part of the person who drafted the document, becausethe instrument should be equitable mortgage x x x. Between the complainants andthe respondent, it is the latter who knows about the law, be it the difference betweena Deed of Absolute Sale and an Equitable Mortgage. And because he is the lawyerand he has a law off ice together with his son, it is presumed that he was the one whoprepared the Deed of Absolute Sale wherein the consideration indicated was onlyP50,000.00. We believed complainants that the Deed of Absolute Sale was preparedby respondent to lessen the amount of capital gain tax. Respondent cannot deny thathe was the one who prepared the Deed of Absolute Sale as shown by his letters toMyrna Tugawin (sister of Jeneline Donato) dated 31 August 1994, 1 September 1994and 20 December 1994. After the lapse of several years, respondent filed thecomplaint for Reformation of Instrument because he realized that the price paid tohim by complainants was unusually inadequate in view of the fact that the same land

was being purchased by NAPOCOR for P3,000,000.00.

"The contention of respondent that this administrative complaint is a violation of therule on forum shopping is without merit. There is forum shopping when as a resultof an adverse opinion in one forum, a party seeks a favorable opinion (other than byappeal or certiorari) in another (First Phil International Bank vs. CA, 252 SCRA 259),or when he institutes two or more actions or proceedings grounded on the samecause, on the gamble that one or the other court would make a favorable disposition(Chemphil Export & Improt Corp. vs. CA, 251 SCRA 257)."

and recommended that complainant be suspended from the practice of law for one(1) year.

In its Resolution No. XV-2003-345, the IBP Board of Governors adopted andapproved the Report of Commissioner Maala with the recommendation thatrespondent be suspended from the practice of law for only six (6) months.

We sustain the finding of the Hearing Commissioner that respondent was not tellingthe truth when he alleged in his complaint for reformation of instrument that theintention of the parties is not expressed therein; that what they intended to executewas a deed of equitable mortgage, not a deed of absolute sale; and that the mistakewas committed by the person who drafted the instrument.

We observe that the Deed of Absolute Sale was executed by the parties onDecember 14, 1994. However, respondent filed Civil Case No. U-6352 for reformationof instrument only on April 23, 1997, or after two years, four months and nine days.Why did it take him more than two years to realize that the previous contract did notexpress the true intention of the parties? The reason for this delay can be gleanedfrom the allegations in his complaint in Civil Case No. U-6352 for reformation of

instrument. He alleged that the Deed of Absolute Sale should have been an equitablemortgage since the consideration stated therein is only P50,000.00, while the


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NAPOCOR has agreed to purchase the lot for P3,000,000.00. It is thus clear that itwas only when he knew that the value of the lot suddenly increased by leaps andbounds that he thought of filing the complaint for reformation of instrument.

At this point, it bears stressing that respondent does not dispute complainantscontention that they paid him P187,500.00, not P50,000.00. As earlier mentioned,complainants explained that the latter price was specified in the deed of absolute salein order to reduce the amount of the corresponding capital gain tax.

We likewise sustain the finding of Commissioner Maala that the Deed of Absolute

Sale was prepared by respondent himself, as shown by his letters to Myrna Tugawin,sister of complainant Jeneline Donato. In his letter dated August 31, 1994,respondent informed Myrna that "a Deed of Sale will be executed by us" (referring tohim and the complainants). In his letter of September 1, 1994, respondent askedMyrna to bring P50,000.00 on September 3, 1994 "for the execution of the Deed ofAbsolute Sale." And in his letter dated December 20, 1994, respondent requestedMyrna to bring complainants "balance" on December 22, 1994. If it were true that thecontract between the parties is an equitable mortgage, why did he prepare a differentone a Deed of Absolute Sale?

We find respondent guilty of gross misconduct.

A lawyer may be suspended or disbarred for any misconduct showing any fault ordeficiency in his moral character, honesty, probity or good demeanor.

1Section 27,

Rule 138 of the Revised Rules of Court mandates:

"SEC. 27. Disbarment or suspension of attorneys by Supreme Court, groundstherefor. A member of the bar may be disbarred or suspended from his office asattorney by the Supreme Court for any deceit, malpractice, or other gross misconductin such office, grossly immoral conduct, or by reason of his conviction of a crimeinvolving moral turpitude, of for any violation of the oath which he is required to takebefore admission to practice, or for a willful disobedience appearing as an attorney fora party to a case without authority to do so. The practice of soliciting cases at law forthe purpose of gain, either personally or through paid agents or brokers, constitutesmalpractice.

x x x."

In SPO2 Jose B. Yap vs. Judge Aquilino A. Inopiquez, Jr.,2

we explained the concept

of gross misconduct as any inexcusable, shameful or flagrant unlawful conduct on thepart of a person concerned in the administration of justice which is prejudicial to therights of the parties or to the right determination of the cause. Such conduct isgenerally motivated by a premeditated, obstinate or intentional purpose. The term,however, does not necessarily imply corruption or criminal intent.

In committing such gross misconduct, respondent violated his solemn oath as alawyer imposing upon himself the following duties, thus:

"I, ______________, do solemnly swear that I will maintain allegiance to the Republicof the Philippines; I will support its Constitution and obey the laws as well as the legalorders of the duly constituted authorities therein; I will do no falsehood, nor consent tothe doing of any in court; I will not wittingly or willingly promote or sue any groundless,false or unlawful suit, nor give aid nor consent to the same; I will delay no man formoney or malice, and will conduct myself as a lawyer according to the best of my

knowledge and discretion with all good fidelity as well to the courts as to my clients;

and I impose upon myself this obligation without any mental reservation or purpose ofevasion. So help me God."

By filing the unfounded complaint for reformation of instrument to obtain financialgain, respondent did not only abuse and misuse the judicial processes, but likewiseharassed the complainants and forced them to litigate unnecessarily. Indeed, his actwas intended to advance his own interest at the expense of truth and theadministration of justice, a manifestation of flaw in his character as a lawyer.

The practice of law is a sacred and noble profession. It is a special privilege bestowed

only upon those who are competent intellectually, academically and morally.

3

Wehave been exacting in our demand for integrity and good moral character of membersof the Bar.

4We expect them at all times to uphold the integrity and dignity of the legal

profession5

and refrain from any act or omission which might lessen the trust andconfidence reposed by the public in the integrity of the legal profession.

6

Any gross misconduct of a lawyer in his profession or private capacity is a ground forthe imposition of the penalty of suspension or disbarment because good character isan essential qualification for the admission to the practice of law and for thecontinuance of such privilege.

7We agree with the IBP Board of Governors that

respondent should be suspended from the practice of law for six (6) months for grossmisconduct.

Incidentally, respondents defense of forum shopping is utterly bereft of merit. Sufficeit to state that complainants did not institute two actions grounded on the same cause

of action on the supposition that one or the other court might look with favor uponthem.

WHEREFORE, respondent ATTY. ISAIAH B. ASUNCION, SR. is found GUILTY ofGROSS MISCONDUCT and is hereby SUSPENDED from the practice of law for aperiod of SIX (6) MONTHS effective from notice.

Let a copy of this Decision be entered in the personal records of respondent as amember of the Bar; and be furnished the Bar Confidant, the IBP, and the CourtAdministrator for circulation to all courts in the country.

SO ORDERED.
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