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SECOND DIVISION

[A.C. No. 3745. October 2, 1995.]

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

SYLLABUS

LEGAL ETHICS; ATTORNEYS; LOYALTY TO CLIENT SUBSISTS EVEN AFTER THE TERMINATION OF ATTORNEY-CLIENT

RELATIONSHIP. The Court reiterates that an attorney owes loyalty to his client not only in the case in which he has

represented him but also after the relation of attorney and client has terminated as it is not good practice to permit him

afterwards to defend in another case other person against his former client under the pretext that the case is distinct from, and

independent of the former case. It behooves respondent not only to keep inviolate the client's confidence, but also to avoid the

appearance of treachery and double dealing for only then can l itigants be encouraged to entrust their secrets to their attorneys

which is of paramount importance in the administration of justice. The relation of attorney and client is one of confidence and

trust in the highest degree. A lawyer owes fidelity to the cause of his client and he ought to be mindful of the trust and

confidence reposed in him. An attorney not only becomes familiar with all the facts connected with his client's cause, but also

learns from his client the weak and strong points of the case. No opportunity must be given attorneys to take advantage of the

secrets of clients obtained while the confidential relation of attorney and client exists. Otherwise, the legal profession will

suffer by the loss of the confidence of the people. Respondent's plea for leniency cannot be granted. We note that respondent

is new in the profession as he was just admitted to the Philippine Bar on April 10, 1990, when the breach of his oath of office

occurred more than a year after. Having just hurdled the bar examinations which included an examination in legal ethics, surely

the precepts of the Code of Professional Responsibility to keep inviolate the client's trust and confidence even after the

attorney-client relation is terminated must have been still fresh in his mind. A lawyer starting to establish his stature in the legal

profession must start right and dutifully abide by the norms of conduct of the profession. This will ineluctably redound to his

benefit and to the upliftment of the legal profession as well.

R E S O L U T I O N

FRANCISCO,J p:

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 forthe 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 f iling 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. byinhibiting 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. cdll

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

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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 torespondent's record in the Office of the Bar Confidant and copies thereof furnished to all courts and to the Integrated Bar of the

Philippines. LexLibris

Regalado, Puno and Mendoza, JJ., concur.

Narvasa, C.J., on official leave.

SECOND DIVISION

[A.C. No. 2736. May 27, 1991.]

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

Jose Feliciano Loy, Jr. for petitioners.

SYLLABUS

1.LEGAL ETHICS; CODE OF PROFESSIONAL RESPONSIBILITY; A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND

DILIGENCE; VIOLATED IN CASE AT BAR. In an effort to extricate himself from this charge, the respondent submits that since

he was able to persuade the National Labor Relations Commission (NLRC) on appeal to set aside the Decision of the Labor

Arbiter and to remand the case for further proceedings, then the charge of negligence should be considered moot and

academic already. We find this submission not meritorious. Instead, we agree with the position of the Solicitor General:

Respondent's plea is untenable. The setting aside of the adverse Decision of the Labor Arbiter cannot obliterate the effects of

respondent's negligence. Indeed, had respondent attended the two scheduled hearings and filed the required position paper,

then at least, there would have been no delay in the resolution of the case, which, perhaps, would have been in favor of

complainant. The delay, by itself, was prejudicial to complainant because it deprived successor-counsel Atty. Loy of time which

he should be devoting to other cases of complainant. In fact he had to prepare complainant's position paper which respondent

should have done earlier. From the foregoing, it is manifest that the respondent is indeed guilty of negligence, a clear violationof the Code of Professional Responsibility: CANON 18 A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND

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

shall render him liable.

2.ID.; ID.; A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE

REPOSED IN HIM. The Solicitor General further found that the respondent assisted Roberto San Juan in the preparation of

the counter-affidavit, submitted in defense of the latter in the accusation of estafa filed against San Juan by LFC. As a matter of

fact, the respondent signed the jurat of the San Juan counter-affidavit he (respondent) helped prepare. It is also a fact that the

respondent investigated this same charge of estafa while he was still the lawyer of the complainant and San Juan still likewise

an employee of LFC. Again, we concur with the findings and evaluation of the Office of the Solicitor General: . . . Respondent,

however, tried to extricate himself from his predicament by testifying that the counteraffidavit was prepared by a lawyer-

friend, Atty. Joselito R. Enriquez, who had his (respondent's) name typed on it; that after reading it, he called up Atty. Enriquez

so that he will delete his name and signature thereon; that he instructed San Juan to bring the counteraffidavit to Atty. Enriquez

so that he will delete his name and signature, but San Juan did not obey him; and that San Juan filed the counteraffidavit with

the office of the Provincial Fiscal with his name and signature still on it. It is submitted that, apart from being a mere

afterthought, respondent's explanation is incredible. His foregoing testimony is not reflected in his comment on the complaint .

. . We are convinced that the respondent had betrayed the confidences of the complainant, his former client. . . . An attorney

owes loyalty to his client not only in the case in which he has represented him but also after the relation of attorney and client

has terminated, and it is not a good practice to permit him afterwards to defend in another case other persons against his

former client under the pretext that the case is distinct from and independent of the former case.

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R E S O L U T I O N

PER CURIAMp:

The respondent lawyer, Atty. Francisco L. Daria, is administratively charged1on two counts, to wit:

1.Negligence and

2.Betrayal of his former client's confidences.

A verified complaint dated February 22, 1985 was filed by Lorenzana Food Corporation (LFC, hereinafter), and received by the

Court on February 25, 1985.2

The Court, on June 10, 1985, resolved to refer this case to the Office of the Solicitor General for investigation, report, and

recommendation.

After proper proceedings, the Office of the Solicitor General submitted its "Report and Recommendation," dated February 21,

1990 and received by the Court on February 26, 1990.

From the findings made by the Solicitor General, the pertinent facts may be summarized as follows:

Respondent Francisco L. Daria is charged with negligence and betrayal of his former client's confidences.

The following facts are in connection with the charge of negligence:

Respondent was hired by complainant Lorenzana Food Corporation (LFC) on January 8, 1981 as its legal

counsel and was designated as its personnel manager six months later (tsn. pp. 6-7, Dec. 9, 1985). On

May 23, 1983, LFC employee, Violeta Hanopol, filed a complaint for illegal dismissal and other monetary

claims against complainant before the Ministry (now Department) of Labor and Employment (MOLE). On

May 30, 1983, summons was served on the parties with the requirement that position papers be

submitted (Exh. G).

During the initial hearing on June 13, 1973*(sic) Hanopol and respondent tried to explore the possibilityof an amicable settlement. Since no agreement was reached the hearing was reset to June 17, 1983. On

the pretext that Hanopol was supposed to go to his office on that date respondent failed to appear for

the second setting (tsn. pp. 14-15, Dec. 9, 1985). So, the Labor Arbiter was constrained to further reset

the hearing to June 23, 1983. Respondent received on June 23, 1983 the Order for the resetting to June

1983 (Exh. J).

In the meantime, on June 20, 1983, respondent received an Order in another labor case, setting the

hearing therein also on June 28, 1983 (Exh. H-6). Faced with a conflicting schedule, respondent decided

to move to postpone the hearing in the Hanopol case. However, instead of filing a written motion for

postponement, he opted to call, through his secretary, the Office of the Labor Arbiter to move for

postponement (Exh. H-5; tsn. p. 16, Dec. 9, 1985). Respondent's telephone message apparently failed to

reach the Labor Arbiter, because at the hearing on June 28, 1983, he considered the case submitted for

decision on the basis of Hanopol's complaint and affidavit (Exh. G-1). Respondent had not submitted a

position paper.

After a month, on July 29, 1983, the Labor Arbiter issued a Decision directing LFC to pay Hanopol the total

sum of P6,469.60 in labor benefits, on the basis of Hanopol's evidence alone.

Respondent Daria appealed the Decision to the National Labor Relations Commission (NLRC) on August

23, 1983 (Exh. 4), The case was remanded to the Labor Arbiter for further proceedings. The case was set

for hearing on June 25, 1984 and July 12, 1984 wherein attempts for an amicable settlement still proved

futile. The Labor Arbiter set two more dates for hearing: July 27, 1984 and August 8, 1984 (tsn. pp. 21-22,

Dec. 9, 1985).

In the meantime, the middle of June 1984, respondent signified to management his intention to resign. In

the light of this development, management hired Atty. Rogelio Udarbe to take his place on July 16, 1984,

the effective date of his resignation (Exh. 2). Respondent endorsed the cases of complainant to Atty.Udarbe (tsn. pp. 23-25, Dec. 9, 1985).

During the hearings in the Hanopol case on July 27, 1984 and August 8, 1984, no one appeared for

complainant. So, on August 15, 1984, Hanopol filed a "Manifestation and Motion" praying that the earlier

Decision of the Labor Arbiter dated July 29, 1983 be revived. (Exh. 5)

On September 1, 1984, Atty. Jose Loy, Jr. was hired by complainant LFC vice Atty. Udarbe and he

immediately came across the above-mentioned "Manifestation and Motion". On September 5, 1984, he

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filed an Opposition (Exh. 6) thereto, and on September 19, 1984, he followed this up with a position

paper for LFC (Exh. 7). However, the Labor Arbiter had already revived his earlier Decision dated July 29,

1983 in another Decision dated September 4, 1984, thereby prompting Atty. Loy to appeal the latter

Decision (Exh. 3). In a resolution dated May 9, 1985, the NLRC ordered anew the remand of the case for

further proceedings (Exh. 8).

In connection with the other charge of betrayal by respondent of his former client's confidences, the

following facts appear on record:

While respondent was still connected with complainant, its general manager, Sebastian Cortes, issued a

memorandum dated February 28, 1984 (Exh. C) to its employee, Roberto San Juan, requiring him to

submit a written explanation for his alleged double liquidation and unliquidated cash advances. Another

memorandum dated March 15, 1984 (Exh. D) was issued this time by complainant's internal auditor,

Rosario L. Bernardo, addressed to complainant's president, summing up San Juan's unliquidated advances

amounting to P9,351.15. Respondent was furnished a copy of this memorandum (Exh. D-3). The

executive committee, to which respondent belongs, investigated San Juan on his unliquidated advances.

On account of the gravity of the charge, respondent placed San Juan under preventive suspension, per his

letter to him dated April 25, 1984 (Exh. E).

On September 20, 1984, when respondent had already resigned, complainant sent a demand letter to

San Juan requiring him to restitute the amount of P9,351.15 (Exh. N-2). Since he failed to pay the amountdemanded, a complaint for estafa was lodged against him before the Office of the Provincial Fiscal. San

Juan thereafter resigned and sought the assistance of respondent in the preparation of his

counteraffidavit in January 1985 (tsn. p. 35, Nov. 5, 1985). Respondent prepared San Juan's

counteraffidavit and signed it (Exh. F). San Juan then submitted his counteraffidavit to the Office of the

Provincial Fiscal (tsn. p. 42, Nov. 5, 1985).3

xxx xxx xxx

For failure to appear in two consecutive hearings and to submit a position paper in the Hanopol case which resulted in

complainant LFC's default and judgment against it by the Labor Arbiter, the respondent is faulted for negligence. The

respondent avers that Hanopol should have seen him in his office to work out a compromise agreement, on the scheduled dayof the second hearing, June 17, 1983, but did not.4

It is the finding of the Solicitor General that this excuse by the respondent is not borne by the Constancia5setting the case forhearing. The Constancia clearly states: "By agreement of the parties, case reset to June 17, 1983 at 2:00 p.m. as previously

scheduled."6Since it was signed by both Hanopol and the respondent, the Solicitor General argues that the respondent'sexplanation is manifestly unsatisfactory. cdll

With regard to his second non-appearance for the hearing on June 2, 1983, the respondent justified his absence by claiming

that he had another hearing on the same date and that he told his secretary to call up the Office of the Labor Arbiter to have

the hearing of the Hanopol case postponed.7The Solicitor General avers:

. . . It is submitted that respondent's actuation was not warranted by the circumstances. As it turned out,

the telephone request apparently did not reach the Labor Arbiter, thereby constraining him to declarecomplainant in default and render judgment against it.8

In an effort to extricate himself from this charge, the respondent submits that since he was able to persuade the National Labor

Relations Commission (NLRC) on appeal to set aside the Decision of the Labor Arbiter and to remand the case for further

proceedings, then the charge of negligence should be considered moot and academic already.9We find this submission notmeritorious. Instead, we agree with the position of the Solicitor General:

Respondent's plea is untenable. The setting aside of the adverse Decision of the Labor Arbiter cannot

obliterate the effects of respondent's negligence. Indeed, had respondent attended the two scheduled

hearings and filed the required position paper, then at least, there would have been no delay in the

resolution of the case, which, perhaps, would have been in favor of complainant. The delay, by itself, was

prejudicial to complainant because it deprived successor-counsel Atty. Loy of time which he should be

devoting to other cases of complainant. In fact he had to prepare complainant's position paper which

respondent should have done earlier (Exh. 7).10

From the foregoing, it is manifest that the respondent is indeed guilty of negligence, a clear violation of the Code of

Professional Responsibility:11

CANON 18 A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND

DILIGENCE.

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

therewith shall render him liable.

The other accusation against the respondent by the Solicitor General was that he had betrayed complainant LFC's confidences

in violation of the then Canon 37 of the old Canons of Professional Ethics, to wit:

It is the duty of a lawyer to preserve his client's confidences. This duty outlasts the lawyer's employment,and extends as well to his employees and neither of them should accept employment which involves or

may involve the disclosure or use of these confidences, either for the private advantages of the client,

without his knowledge and consent, and even though there are other available sources of such

information. A lawyer should not continue employment when he discovers that this obligation prevents

the performance of his full duty to his former or to his new client.

xxx xxx xxx

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

CANON 17 A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL

BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM.

The Solicitor General further found that the respondent assisted Roberto San Juan in the preparation of the counter-

affidavit,12submitted in defense of the latter in the accusation of estafa filed against San Juan by LFC. As a matter of fact, therespondent signed the jurat of the San Juan counter-affidavit he (respondent) helped prepare. It is also a fact that the

respondent investigated this same charge of estafa while he was still the lawyer of the complainant and San Juan still likewise

an employee of LFC. prLL

Again, we concur with the findings and evaluation of the Office of the Solicitor General:

. . . Respondent, however, tried to extricate himself from his predicament by testifying that the

counteraffidavit was prepared by a lawyer-friend, Atty. Joselito R. Enriquez, who had his (respondent's)

name typed on it; that after reading it, he called up Atty. Enriquez so that he will delete his name and

signature thereon; that he instructed San Juan to bring the counteraffidavit to Atty. Enriquez so that he

will delete his name and signature, but San Juan did not obey him; and that San Juan filed the

counteraffidavit with the office of the Provincial Fiscal with his name and signature still on it (tsn. pp. 47-

51, Dec. 9, 1985).

It is submitted that, apart from being a mere afterthought, respondent's explanation is incredible. His

foregoing testimony is not reflected in his comment on the complaint . . .13

We are convinced that the respondent had betrayed the confidences of the complainant, his former client.

. . . An attorney owes loyalty to his client not only in the case in which he has represented him but also

after the relation of attorney and client has terminated, and it is not a good practice to permit him

afterwards to defend in another case other persons against his former client under the pretext that the

case is distinct from and independent of the former case.14

WHEREFORE, premises considered, the respondent is found guilty of both the charge of negligence, a transgression of Rule

18.03, Canon 18, and the charge of betrayal of his former client's confidences, in violation of Canon 17 of the Code of

Professional Responsibility.

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

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

chapters.

SO ORDERED.

Melencio-Herrera, Paras, Padilla, Sarmiento and Regalado, JJ., concur.

SECOND DIVISION

[A.C. No.801. June 27, 1978.]

CESARIO ADARNE, complainant,vs. ATTY. DAMIAN V. ALDABA, respondent.

SYNOPSIS

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At the hearing of Civil Case No. 632 for forcible entry before the Court of First Instance of Leyte, respondent attorney was

prevailed upon be complainant to appear for him and his co-defendants and to ask for the postponement of the trial as their

counsels of record had not arrived. Respondent entered a special appearance and was able to obtain favorable action on a

motion to dismiss. On appeal, however, this order was set aside and the case was remanded to the lower court for further

proceedings. At the hearing of the case where respondent was again requested by complainant to appear in his behalf,

respondent argued that defendants be allowed to file an action for quieting of title to be heard jointly with the pending action

for forcible entry. On the day of the scheduled hearing of both cases, the defendants were declared in default for non-

appearance, a decision was rendered and a writ of execution therefor was issued. Because of this, respondent was chargedwith gross negligence, misconduct and malpractice.

The Supreme Court ruled that the judgment by default rendered against complainant cannot be attributed to respondent

attorney as the blamed lies with the former for having engaged the services of several lawyers to handle his case without

formally withdrawing the authority he had given them to appear in his behalf as to place the responsibility upon the

respondent. Finding no convincing proof to warrant the disbarment of respondent attorney, the administrative complaint filed

against him was dismissed.

Administrative complaint dismissed.

SYLLABUS

1.LEGAL ETHICS; ATTORNEYS; SUBSTITUTION OF, REQUIREMENTS.

The rule followed on matters of substitution of attorneys

as laid down by this Court is that no substitution of attorneys will be allowed unless there be filed: (1) a written application for

such substitution; (2) the written consent of the client; (3) the written consent of the attorney substituted; and (4) in case such

written consent can not be secured, there must be filed with the application proof of service of notice of such motion upon the

attorney to be substituted, in the manner prescribed by the rules. Unless the foregoing formalities are complied with,

substitution will not be permitted, and the attorney who properly appeared last in the cause, before such application for

substitution, will be regarded as the attorney of record and will be held responsible for the proper conduct of the cause.

2.ID.; ID.; DUTY TO ACT TO THE BEST OF HIS SKILL AND KNOWLEDGE. An attorney is not bound to exercise extraordinary

diligence, but only a reasonable degree of care and skill having reference to the character of the business he undertakes to do.

Prone to err like any other human being, he is not answerable for every error or mistake, and will be protected as long as he

acts honestly and in good faith to the best of his skill and knowledge.

3.ID.; ID.; DISBARMENT; CONVINCING PROOF NECESSARY.

In disbarment proceedings, the burden of proof rests upon thecomplainant and for the Court to exercise its disciplinary powers, the case against the respondent attorney must be established

by convincing proof.

4.ID.; ID.; ID.; ID.; NO SUFFICIENT PROOF TO WARRANT DISBARMENT OF RESPONDENT ATTORNEY. There is no malpractice to

warrant the exercise of the court of its disciplinary powers where the respondent lawyer honestly believed that he had

appeared for the complainant and agreed to contact his attorney of record to handle his case after said appearance, so that he

(the lawyer) did nothing more about it. And if a judgment by default is rendered against the complainant, the same cannot be

attributed to the respondent. The blame lies with the complainant for having engaged the services of several lawyers to handle

his case without formally withdrawing the authority he had given to them to appear in his behalf as to place the responsibility

upon the respondent.

D E C I S I O N

CONCEPCION, JR.,J p:

Administrative action against the respondent attorney for gross negligence and misconduct, for failure to give his entire

devotion to the interest of his client, warm zeal in the maintenance and defense of his rights, and exertion of his utmost

learning and ability in the prosecution and defense of his client, and for not taking steps to protect the interests of his client in

the face of an adverse decision.

The record shows that sometime in 1958, Raymunda Cumpio and her husband, Rufo Cumpio, filed an action for forcible entry

against herein complainant Cesario Adarne, Aning Arante, and Miguel Inokando with the Justice of the Peace of Alangalang,

Leyte. The case was docketed in the said court as Civil Case No. 96. Atty. Isauro Marmita represented the defendants who

raised the issue of ownership of the land in question. After hearing the parties, the Justice of the Peace dismissed the complaint

for lack of jurisdiction. Consequently, the plaintiffs therein appealed to the Court of First Instance of Leyte and the case was

assigned to Branch VI of Carigara, where it was docketed as Civil Case No. 556. Resolving the issue interposed by the appellants,

the Judge of the Court of First Instance found that the Justice of the Peace Court has jurisdiction over the case and returned the

same to the lower court for trial on the merits. After trial on the merits, the Justice of the Peace again dismissed the case and

the plaintiffs again appealed to the Court of First Instance of Leyte where the case was docketed anew as Civil Case No. 632.

Attys. Arturo Mirales and Generoso Casimpan filed the answer for the defendants.1

At the hearing of the case on August 7, 1961, the herein complainant Cesario Adarne, one of the defendants in the

aforementioned Civil Case No. 632, noting that his attorneys had not yet arrived, prevailed upon the respondent Atty. Damian

Aldaba, who was then present in court to attend the trial of an electoral case, to appear as counsel for them and ask for the

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postponement of the trial. The respondent, who is a third degree cousin of the complainant, agreed, and entered a special

appearance. Upon noticing that the plaintiffs and their counsel were not also present in court, the respondent, instead of

asking for a postponement, moved for the dismissal of the case. His motion was granted and the case was again dismissed.

Thereafter, the plaintiffs filed a motion for the reconsideration of the order,2to which the respondent filed an opposition inbehalf of the defendants,3and the motion was denied.4Whereupon, the plaintiffs appealed to the Court of Appeals. Afterappropriate proceedings, the appellate court set aside the order of dismissal and remanded the case to the lower court for

further proceedings.

At the hearing of the case on October 23, 1964 before the Court of First Instance of Leyte, the respondent was again prevailed

upon by the complainant to appear in his behalf. The respondent entered a "special appearance" for the complainant and

thereafter argued that the interest of justice would best be served if the defendants were allowed to file an action for quieting

of title and the case heard jointly with the action for forcible entry. Finding merit in the argument, the court ordered the

defendant Cesario Adarne to file an action for quieting of title within one (1) week and the plaintiffs to answer the same within

the reglementary period, after which both cases would be tried jointly. The hearing was deferred until after the filing of the

action for quieting of title.5

On June 17, 1965, the court declared the defendants in default for their failure to appear at the hearing set for that day and

directed the plaintiffs to present evidence to support their claim.6On September 17, 1965, the court rendered a decision and awrit of execution was issued thereafter.7

Because of this, Cesario Adarne fi led the present complaint against the respondent Atty. Damian V. Aldaba on August 3, 1967,praying: LLjur

"Dahil dito, isinusumbong ko po ang aking Abogado ng 'Mal Practice' pabaya at pahamak sa kliente at

sinisingil ko po siya ng pinsala katumbas sa sinisingil sa kin ng akin kalaban. O kaya lakarin niya na mapigil

ang decision ng Hukom sa C.F.I. at ulitin ang hearing sa Forcible Entry. Kung hindi niya magagawa ito,

ipinauubaya kona po sa kataas taasan Hukoman ang paglapat ng parusa. Sapagkat kung hindi po susugpo-

in ang masamang gawa na ito ng mga ibang abogado na nabibili lala'la' ang sakit na ito sa profession ng

mga abogado, at lilikha ng maraming api at habang naghahari ang pang aapi, lalaganap ang kriminalidad

ng walang tigil at walang katahimikan ang ating Demukrasya, at kung magkakagayon ang mga

mamamayan at sapilitan sa kumunista sasamba."

The respondent denied that he ever had any agreement with the complainant with respect to the handling of the latter's case

in the Court of First Instance of Leyte, Carigara Branch, except for the "special appearance" that he entered for the complainanton August 7, 1961 and October 23, 1964, in view of the non-availability of the complainant's lawyers on said dates.

The case referred to the Solicitor General for investigation, report and recommendation,8after which a complaint for thedisbarment of the respondent attorney was filed.9

The judgment by default rendered against the complainant cannot be attributed to the respondent attorney. The blame lies

with the complainant for having engaged the services of several lawyers to handle his case without formally withdrawing the

authority he had given to them to appear in his behalf as to place the responsibility upon the respondent. To add to the

confusion, the complainant had also requested the clerk of court of the Court of First Instance of Leyte that he (complainant) be

furnished with summons and subpoena accorded to him.10He also filed a motion by himself,11thus implying that he washandling his case personally.

It appears that there have been three changes made of the attorneys for the complainant in the forcible entry case. The

complainant wad originally represented by Atty. Isauro Marmita who, upon his appointment to the Department of Labor,

engaged Atty. de Veyra to take his place.12Than came Atty. Arturo Mirales and later, Atty. Generoso Casimpan. However, noformalities whatever were observed in those changes such that the respondent entered a "special appearance" for the

complainant in order that he could ask for the dismissal of the case for the failure of the adverse party to prosecute. The rule

followed on matters of substitution of attorneys as laid down by this Court is that no substitution of attorneys will be allowed

unless there be filed: (1) a written application for such substitution; (2) the written consent of the client; (3) the written consent

of the attorney substituted; and (4) in case such written consent can not be secured, there must be filed with the application

proof of service of notice of such motion upon the attorney to be substituted, in the manner prescribed by the rules. Unless the

foregoing formalities are complied with, substitution will not be permitted, and the attorney who properly appeared last in the

cause, before such application for substitution, will be regarded as the attorney of record and will be held responsible for the

proper conduct of the cause.13

Besides, the respondent honestly believed that he had appeared for the complainant only for a special purpose and that the

complainant had agreed to contact his attorney of record to handle his case after the hearing of October 23, 1964, so that he

did nothing more about it.14It was neither gross negligence nor omission to have entertained such belief An attorney is notbound to exercise extraordinary diligence, but only a reasonable degree of care and skill having reference to the character of

the business he undertakes to do. Prone to err like any other human being, he is not answerable for every error or mistake, and

will be protected as long as he acts honestly and in good faith to the best of his skill and knowledge.

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It is well settled that in disbarment proceedings, the burden of proof rests upon the complainant and for the Court to exercise

its disciplinary powers, the case against the respondent attorney must be established by convincing proof. In the instant case,

there is no sufficient proof to warrant the disbarment of the respondent attorney. Neither is there culpable malpractice to

justify his suspension. LexLib

WHEREFORE, the present administrative complaint is hereby DISMISSED.

SO ORDERED.

Santos andGuerrero, JJ., concur.

Fernando (Chairman) andAquino, JJ., took no part.

Antonio, J., concurs in the result.

Separate Opinions

BARREDO,J.,concurring:

Concurs in the results since respondent made only a special appearance on Oct. 23, 1964, when he made a creditably showing

for complainant, the counsel of record of complainant should have been the one to take the corresponding subsequent steps.

THIRD DIVISION

[A.C. No. 5835. April 15, 2005.]

CARLOS B. REYES, complainant, vs. ATTY. JEREMIAS R. VITAN, respondent.

D E C I S I O N

SANDOVAL-GUTIERREZ, J p:

A lawyer shall serve his client with competence and diligence1and never neglect a legal matter entrusted to him and hisnegligence in connection therewith shall render him liable. Indeed, it is his sworn duty not to delay no man for money or

malice; and to conduct himself in a proper manner not only to his cl ient, but also to the court, the legal profession and society

at large.2

This is an administrative complaint for disbarment filed by Carlos Reyes against Atty. Jeremias Vitan for gross negligence.

The complaint alleges that sometime in June 2001, complainant Carlos Reyes hired the services of respondent Atty. Jeremias

Vitan for the purpose of filing the appropriate complaint or charge against his sister-in-law, Estelita Reyes, and the latter's

niece, Julieta P. Alegonza; that both women refused to abide with the Decision of Judge Juan C. Nabong, Jr., of the Regional

Trial Court, Branch 32, Manila, in Civil Case No. 99-92657 ordering the partition of the properties left by complainant's brother

Damaso B. Reyes; and that respondent, after receiving the amount of P17,000.00, did not take any action on complainant's

case.

We referred the complaint to the Integrated Bar of the Philippines for investigation, report and recommendation. IBP

Commissioner Lydia A. Navarro issued several orders to respondent directing him to file his answer to the complaint, but he

failed to do so. He only sent his secretary to represent him during the proceedings. ACTIcS

On April 18, 2001,3IBP Commissioner Navarro submitted to the IBP Board of Governors her Report and Recommendationquoted as follows:

". . . . After going over the evidence on record, the undersigned noted that respondent ignored all the

Orders issued by this Commission and neither did he comply with any of those Orders. Respondent even

failed to submit the responsive pleadings he himself requested in his motion and only sent his assistant

secretary to represent him in the scheduled hearings of this case. Up to and until the present, no

pleadings was submitted despite respondent's allegations that he was collating evidence to prove his sideof the case.

It was complainant who submitted the supposed letters of the respondent Estelita Reyes and Juliet

Alegonza but there were no proofs when they sent and when the same were received by the addressee.

Likewise, the complaint submitted by the complainant was only a format in the sense that it was not

signed by the respondent; the RTC Branch No. was left blank; there was no Civil Case No. and there was

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no proof that said pleading was filed which amounts only to a mere scrap of paper and not a pleading or

authenticated document in the legal parlance.

As it is, nothing had been done by the respondent for the complainant as his client for the legal fees he

collected which was paid by the complainant as reflected in the receipts issued by the respondent in

handwritten forms and signed by him.

Respondent not only violated Rule 18.03 and 18.04 of Cannon 18 of the Code of Professional

Responsibility for having neglected a legal matter entrusted to him and did not inform complainant the

status of his case but also disregarded the orders of the Commission without reasons which amounted to

utter disrespect of authority and unethical conduct in the practice of his profession, thus, should be

sanctioned. EICScD

Wherefore, in view of the foregoing, the undersigned respectfully recommends that the respondent be

suspended from the practice of his profession for a period of two (2) years from receipt hereof; and

refund to the complainant the amount of P17,000.00 paid to him for not having extended his legal

services to the complainant on a lawyer-client relationship within six (6) months from receipt hereof."

On August 3, 2002, the IBP Board of Governors passed Resolution No. XV-2002-406 adopting and approving the above Report

and Recommendation of IBP Commissioner Navarro.

When respondent accepted the amount of P17,000.00 from complainant, it was understood that he agreed to take up the

latter's case and that an attorney-client relationship between them was established. From then on, it was expected of him to

serve his client, herein complainant, with competence and attend to his cause with fidelity, care and devotion.

The act of receiving money as acceptance fee for legal services in handling complainant's case and subsequently failing to

render such services is a clear violation of Canon 18 of the Code of Professional Responsibilitywhich provides that a lawyer shall

serve his client with competence and diligence. More specifically, Rule 18.03 states:

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

therewith shall render him liable."

A member of the legal profession owes his client entire devotion to his genuine interest, warm zeal in the maintenance and

defense of his rights.4An attorney is expected to exert his best efforts and ability to preserve his client's cause, for theunwavering loyalty displayed to his client likewise serves the ends of justice. Verily, the entrusted privilege to practice law

carries with it the corresponding duties, not only to the client, but also to the court, to the bar and to the public. EcaDCI

In Santos vs. Lazaro,5we held that Rule 18.03 of the Code of Professional Responsibility, above-quoted, is a basic postulate inlegal ethics. Indeed, when a lawyer takes a client's cause, he covenants that he will exercise due diligence in protecting his

rights. The failure to exercise that degree of vigilance and attention expected of a good father of a family makes such lawyer

unworthy of the trust reposed in him by his client and makes him answerable not just to his client but also to the legal

profession, the courts and society.6

Significantly, respondent also violated his oath as a lawyer, which declares in part, that he will not delay any man for money or

malice and will conduct himself as a lawyer according to the best of his knowledge and discretion, with all good fidelity as well

to the courts as to his client.

However, the recommended penalty by the IBP is too harsh. Jurisprudence shows that lighter sanctions have been imposed for

violations of this nature, taking into consideration the gravity of the offense and the necessity of preserving the integrity of the

legal profession.

The facts ofSencio vs. Calvadores7bear a striking similarity to the present case. Respondent lawyer in Sencio did not return themoney to complainant despite demand following his failure to file the case. During the proceedings before the IBP, respondent

did not file his answer to the complaint nor appeared during the hearing notwithstanding his receipt of notices. We found him

guilty of violation of the lawyer's oath, malpractice and gross misconduct and suspended him for six (6) months, and ordered to

return to his client the amount of P12,000.00 with interest at 12%per annum from the date of the promulgation of our

Resolution until the return of the amount.

In Garcia vs. Manuel,8we suspended respondent lawyer from the practice of law for six (6) months and ordered him to render

an accounting of all monies he received from the complainant. We found him guilty of gross misconduct.

WHEREFORE, respondent Atty. Jeremias R. Vitan is hereby declared guilty of violation of Canon 18 of the Code of Professional

Responsibilityand is SUSPENDED from the practice of law for a period of six (6) months effective upon notice of this Decision.

He is ordered to return to complainant within five (5) days from notice the sum of P17,000.00 with interest of 12%per

annumfrom the date of the promulgation of this Decision until the full amount shall have been returned. cDCEIA

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Let a copy of this Decision be furnished the Court Administrator for distribution to all courts of the land, the IBP, the Office of

the Bar Confidant, and entered into respondent's personal records as an attorney and as a member of the Philippine Bar.

SO ORDERED.

Panganiban, Corona, Carpio Morales and Garcia, JJ., concur.

SECOND DIVISION

[A.C. No. 4380. October 13, 1995.]

NICANOR GONZALES and SALUD B. PANTANOSAS, complainants,vs. ATTY. MIGUELSABACAJAN, respondent.

SYLLABUS

LEGAL ETHICS; LAWYERS; CODE OF PROFESSIONAL RESPONSIBILITY; VIOLATED FOR FAILURE TO EXERCISE GOOD FAITH AND

DILIGENCE REQUIRED IN HANDLING THE LEGAL AFFAIRS OF THEIR CLIENTS. As a lawyer, respondent should know that there

are lawful remedies provided by law to protect the interests of his client. The Court finds that respondent has not exercised the

good faith and diligence required of lawyers in handling the legal affairs of their clients. If complainants did have the allegedmonetary obligations to his client, that does not warrant his summarily confiscating their certificates of title since there is no

showing in the records that the same were given as collaterals to secure the payment of a debt. Neither is there any intimation

that there is a court order authorizing him to take and retain custody of said certificates of title. Apparently, respondent has

disregarded Canon 15, Rule 15.07 of the Code of Professional Responsibility which provides that a lawyer shall impress upon his

client the need for compliance with the laws and principles of fairness. Rule 19.01 ordains that a lawyer shall employ only fair

and honest means to attain the lawful objectives of his client and shall not present, participate in presenting, or threaten to

present unfounded charges to obtain an improper advantage in any case or proceeding. Respondent has closely skirted this

proscription, if he has not in fact transgressed the same.

D E C I S I O N

REGALADO,J p:

This resolves the administrative case filed by Nicanor Gonzales and Salud B. Pantanosas against Atty. Miguel

Sabacajan on February 14, 1995, 1 the verified complaint wherefore alleges: cdasia

xxx xxx xxx

4.That sometime in October, 1994, complainants were informed by the Register of Deeds of Cagayan de

Oro City that the complainants' owner's duplicate of title covering their lands, Transfer Certificate of Title

Nos. T-91736 and T-91735 were entrusted to the office secretary of the respondent who in turn

entrusted the same to respondent;

5.That respondent admitted and confirmed to the complainants that their titles are in his custody and has

even shown the same (to) the complainant Salud B. Pantanosas but when demanded (sic) to deliver the

said titles to the complainant in a formal demand letter, marked as ANNEX "A", respondent refused andcontinues to refuse without any justification to give their titles (and) when confronted, respondent

challenged the complainants to file any case in any court even in the Honorable Supreme Court;

6.That respondent's dare or challeng(e), is a manifestation of his arrogance taking undue advantage of his

legal profession over the simplicity, innocence and ignorance of the complainants, one of whom is his

blood relative, his aunt, for which complainants shudder with mental anguish; cdtai

7.That due to his challeng(e), the complainants sent a letter to the Honorable Supreme Court for

enlightenment, copy of which is attached as ANNEX "B", for which the Honorable Supreme Court

required 19 legible copies of a verified complaint;

8.That in spite of repeated demands, request(s) and pleas towards (sic) respondent, respondent still

fail(ed) and stubbornly refused without justification to surrender the said titles to the rightful owners, thecomplainants here(in), which act is tantamount to wilful and malicious defiance of legal and moral

obligations emanating from his professional capacity as a lawyer who had sworn to uphold law and

justice, to the prejudice and damage of the complainants;2

xxx xxx xxx

On March 22, 1995, the Court required respondent to comment on the foregoing complaint. In his unverified "Answer" thereto,

respondent admitted having met Salud Pantanosas but claims that, to his recollection, "Nicanor Gonzales/Serdan" has never

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been to his office. Respondent likewise denied that he challenged anyone to file a case in any court, much less the Supreme

Court. He also claims that he referred complainant Pantanosas to his client, Mr. Samto M. Uy of Iponan, Cagayan de Oro City,

for whom he worked out the segregation of the titles, two of which are the subject of the instant case. 3

Respondent likewise denies complainants' allegation that he is arrogant, in contrast to the innocence, simplicity and ignorance

of said complainants. He contends that the truth of the matter is that complainants have been charged with a number of

criminal and civil complaints before different courts. He also asserts that he was holding the certificates of title in behalf of his

client, Samto M. Uy. 4

Atty. Sabacajan stresses, by way of defense, that "the instant action was chosen precisely to browbeat him into

delivering the Certificates of Title to them without said certificates passing the hands of Mr. Samto Uy with whom the

complainants have some monetary obligations."5

In its resolution dated June 26, 1995,6for internal administrative purposes the Court referred this case to theOffice of the Bar Confidant for the corresponding evaluation, report and recommendation. aisadc

From the foregoing proceedings taken on this matter, the Court finds that respondent admitted having taken

possession of the certificates of title of complainants but refused to surrender the same despite demands made by the

latter. It follows, therefore, that it was incumbent upon him to show that he was legally justified in doing so. Instead, all he

did was to inform this Court that "his obligation to deliver the certificates to Mr. Samto Uy excludes the delivery of said

certificates to anyone else." 7

Respondent attached some certifications to his "Answer" to support his contention that complainants are

notorious characters. However, the certifications indicate that most of the cases stated therein, especially those involving

fraud, have been dismissed. With respect to those still pending, there is no indication as to the identity of the party who

instituted the same, aside from the consideration that the remedy thereon is judicial in nature. At any rate, these

aspersions on the character of complainants have no bearing on the misconduct of respondent charged in the present

case.

Respondent likewise submitted xerox copies of certain certificates of title in an effort to explain why he kept the

certificates of title of complainants, that is, supposedly for the purpose of subdividing the property. However, an

examination of the same does not show any connection thereof to respondent's claim. In fact, the two sets of certificates

of title appear to be entirely different from each other. cdta

As a lawyer, respondent should know that there are lawful remedies provided by law to protect the interests of

his client. The records do not show that he or his client have availed of said remedies, instead of merely resorting to

unexplained, if not curt, refusals to accommodate the requests of complainants. Also, he cannot be unaware of the

imposable sanctions on a counsel who resorts to unlawful means that would cause injustice to the adversaries of his client.

The Court accordingly finds that respondent has not exercised the good faith and diligence required of lawyers in

handling the legal affairs of their clients. If complainants did have the alleged monetary obligations to his client, that does

not warrant his summarily confiscating their certificates of title since there is no showing in the records that the same

were given as collaterals to secure the payment of a debt. Neither is there any intimation that there is a court order

authorizing him to take and retain custody of said certificates of title.

Apparently, respondent has disregarded Canon 15, Rule 15.07 of the Code of Professional Responsibility which

provides that a lawyer shall impress upon his client the need for compliance with the laws and principles of fairness.Instead, he unjustly refused to give to complainants their certificates of titles supposedly to enforce payment of their

alleged financial obligations to his client and presumably to impress the latter of his power to do so. cdasia

Canon 19, Rule 19.01 ordains that a lawyer shall employ only fair and honest means to attain the lawful

objectives of his client and shall not present, participate in presenting, or threaten to present unfounded charges to obtain

an improper advantage in any case or proceeding. Respondent has closely skirted this proscription, if he has not in fact

transgressed the same.

On the foregoing considerations, the Court desires and directs that respondent should forthwith return the

certificates of title of complainants. To ensure the same, he should be placed under suspension until he presents to the

Court proof of receipt by complainants of their respective copies of Certificates of Title Nos. T-91735 and T-91736 or a

judicial order or document authorizing or justifying the retention of possession thereof by respondent or his aforenamed

client.

WHEREFORE, Atty. Miguel Sabacajan is hereby SUSPENDED from the practice of law until he can duly show to

this Court that the disputed certificates of title have been returned to and the receipt thereof duly acknowledged by

complainants, or can present a judicial order or appropriate legal authority justifying the possession by him or his client of

said certificates. He is further WARNED that a repetition of the same or similar or any other administrative misconduct will

be punished more severely. cdtai

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Let a copy of this resolution be spread on the personal records of respondent and have copies thereof furnished

to the Integrated Bar of the Philippines and duly circularized to all courts in the country.

SO ORDERED.

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

FIRST DIVISION

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

BENEDICTO LEVISTE, petitioner,vs. THE COURT OF APPEALS, HON. JUDGE LUIS B. REYES, COURT OFFIRST INSTANCE OF MANILA, ROSA DEL ROSARIO, RITA BANU, CARMEN DE GUZMAN-MARQUEZ, JESUSR. DE GUZMAN, RAMON R. DE GUZMAN, JACINTO R. DE GUZMAN, & ANTONIO R. DEGUZMAN, respondents.

Benedicto Leviste for and in his own behalf.

Gatchalian, Ignacio & Associates for respondents de Guzman.

SYLLABUS

1.CIVIL LAW; SUCCESSION; REPUDIATION; ARTICLE 1052 OF THE CIVIL CODE DOES NOT APPLY TO COUNSEL OF A PROSPECTIVE

HEIR. Article 1052 of the Civil Code protects the creditor of a repudiating heir. Petitioner is not a creditor of Rosa del Rosario.

The payment of his fees is contingent and dependent upon the successful probate of the holographic will. Since the petition for

probate was dismissed by the lower court, the contingency did not occur.

2.ID.; ID.; ID.; ID.; AMOUNT OF SHARE, MERELY A BASIS FOR COMPUTATION OF CONTINGENT ATTORNEY'S FEES. Article 1052

presupposes that the obligor is an heir. Rosa del Rosario is not a legal heir of the late Maxima C. Reselva. Upon the dismissal of

her petition for probate of the decedent's will, she lost her right to inherit any part of the latter's estate. There is nothing for

the petitioner to accept in her name. This Court had ruled in the case of Recto vs. Harden, 100 Phil. 1427, that "the contract (for

contingent attorney's fees) neither gives, nor purports to give, to the appellee (lawyer) any right whatsoever, personal or real,

in and to her (Mrs. Harden's) aforesaid share in the conjugal partnership. The amount thereof is simply a basis forthe computation of said fees."

3.ID.; ID.; NOT EVERY WILL SHOULD BE FOLLOWED. The Court of Appeals did not err in dismissing the petition for

mandamus, for while it is true that, as contended by the petitioner, public policy favors the probate of a will, it does not

necessarily follow that every will that is presented for probate, should be allowed. The law lays down procedures which should

be observed and requisites that should be satisfied before a will may be probated. Those procedures and requirements were

not followed in this case resulting in the disallowance of the will. There being no valid will, the motion to withdraw the probate

petition was inconsequential.

4.REMEDIAL LAW; SPECIAL PROCEEDINGS; PROBATE; PERSONS INDIRECTLY EXCLUDED THEREIN. In Paras vs. Narciso, 35 Phil.

244, We had occasion to rule that one who is only indirectly interested in a will may not interfere in its probate. Thus: ". . . the

reason for the rule excluding strangers from contesting the will, is not that thereby the court maybe prevented from learning

facts which would justify or necessitate a denial of probate, but rather that the courts and the litigants should not be molestedby the intervention in the proceedings of persons with no interest in the estate which would entitle them to be heard with

relation thereto." (Paras vs. Narciso, 35 Phil. 244, 246.)

D E C I S I O N

GRIO-AQUINO,Jp:

The issue in this case is whether or not an attorney who was engaged on a contingent fee basis may, in order to collect his fees,

prosecute an appeal despite his client's refusal to appeal the decision of the trial court.

On September 7, 1963, the petitioner, a practicing attorney, entered into a written agreement with the private respondent

Rosa del Rosario to appear as her counsel in a petition for probate of the holographic will of the late Maxima C. Reselva. Under

the will, a piece of real property at Sales Street, Quiapo, Manila, was bequeathed to Del Rosario. It was agreed that petitioner'scontingent fee would be thirty-five per cent (35%) of the property that Rosa may receive upon the probate of the will (Annex

"A", p. 59, Rollo).

In accordance with their agreement, Leviste performed the following services as Del Rosario's counsel:

(1)Thoroughly researched and studied the law on probate and succession;

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(2)Looked for and interviewed witnesses, and took their affidavits;

(3)Filed the petition for probate is Special Proceeding No. 58325;

(4)Made the proper publications;

(5)Presented at the trial the following witnesses:

a)Eleuterio de Jesus

b)Lucita de Jesus

c)Purita L. Llanes

d)Rita Banu

e)Jesus Lulod.

On August 20, 1965, Leviste received a letter from Ms. Del Rosario, informing him that she was terminating his services as her

counsel due to "conflicting interest." This consisted, according to the letter, in petitioner's moral obligation to protect the

interest of his brother-in-law, Gaudencio M. Llanes, whom Del Rosario and the other parties in the probate proceeding

intended to eject as lessee of the property which was bequeathed to Del Rosario under the will (Annex "B", p. 60, Rollo). cdrep

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

In an order dated November 12, 1965 the trial court denied his motion on the ground that he had "not filed a claim for

attorney's fees nor recorded his attorney's lien." (p. 3, Rollo.)

On November 23, 1965, petitioner filed a "Formal Statement of Claim or Attorney's Fees and Recording of Attorney's Lien,"

which was noted in the court's order of December 20, 1965 (Annexes "D" and "E", pp. 63 & 64, Rollo).

Although the order denying his motion to intervene had become final, petitioner continued to receive copies of the court's

orders, as well as the pleadings of the other parties in the case. He also continued to file pleadings. The case was submitted for

decision without the respondents' evidence.

On November 23, 1966, Del Rosario and Rita Banu, the special administratrix-legatee, filed a "Motion To Withdraw Petition forProbate" alleging that Del Rosario waived her rights to the devise in her favor and agreed that the De Guzman brothers and

sisters who opposed her petition for probate, shall inherit all the properties left by the decedent. (Annex "F", p. 65, Rollo.)

In an order of April 13, 1967 the trial court denied the motion to withdraw the petition for being contrary to public policy

(Annex "G", pp. 66-67, Rollo).

Nonetheless, on August 28, 1967, the court disallowed the will, holding that the legal requirements for its validity were not

satisfied as only two witnesses testified that the will and the testatrix's signature were in the handwriting of Maxima Reselva.

The petitioner filed an appeal bond, notice of appeal, and record on appeal. The private respondents filed a motion to dismiss

the appeal on the ground that petitioner was not a party in interest.

The petitioner opposed the motion to dismiss his appeal, claiming that he has a direct and material interest in the decisionsought to be reviewed. He also asked that he be substituted as party-petitioner, in lieu of his former client, Ms. Del Rosario.

On March 28, 1968, the trial judge dismissed the appeal and denied petitioner's motion for substitution:

The petitioner filed in the Court of Appeals a petition for mandamus (CA-G.R. No. 41248) praying that the trial court be ordered

to give due course to his appeal and to grant his motion for substitution. llcd

On May 22, 1968, the Court of Appeals dismissed the petition for being insufficient in form and substance as the petitioner did

not appear to be the proper party to appeal the decision in Special Proceeding No. 58325 (Annex I, p. 77, Rollo).

Upon the denial of his motion for reconsideration, petitioner appealed by certiorari to this Court, assigning the following errors

against the Court of Appeals' resolution:

1.The Court of Appeals erred in finding that the petitioner appears not to be the proper party to appeal

the decision in Sp. Proc. No. 58325 of the Court of First Instance of Manila.

2.Assuming the petitioner's right of appeal is doubtful, the Court of Appeals erred in dismissing his

petition for mandamus; and

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3.The Court of Appeals erred in not reversing the decision in Sp. Proc. No. 58325 denying the probate of

the holographic will of the late Maxima C. Reselva, said decision being patently erroneous.

Under his first assignment of error, petitioner argues that by virtue of his contract of services with Del Rosario, he is a creditor

of the latter, and that under Article 1052 of the Civil Code which provides:

"ART. 1052.If the heir repudiates the inheritance to the prejudice of his own creditors, the latter maypetition the court to authorize them to accept it in the name of the heir.

"The acceptance shall benefit the creditors only to an extent sufficient to cover the amount of their

credits. The excess, should there be any, shall in no case pertain to the renouncer, but shall be

adjudicated to the persons to whom, in accordance with the rules established in this Code, it may

belong."

he has a right to accept for his client Del Rosario to the extent of 35% thereof the devise in her favor (which she in effect

repudiated) to protect his contingent attorney's fees.

The argument is devoid of merit. Article 1052 of the Civil Code does not apply to this case. That legal provision protects the

creditor of a repudiating heir. Petitioner is not a creditor of Rosa del Rosario. The payment of his fees is contingent and

dependent upon the successful probate of the holographic will. Since the petition for probate was dismissed by the lower court,the contingency did not occur. Attorney Leviste is not entitled to his fee.

Furthermore, Article 1052 presupposes that the obligor is an heir. Rosa del Rosario is not a legal heir of the late Maxima C.

Reselva. Upon the dismissal of her petition for probate of the decedent's will, she lost her right to inherit any part of the latter's

estate. There is nothing for the petitioner to accept in her name.

This Court had ruled in the case of Recto vs. Harden, 100 Phil. 1427, that "the contract (for contingent attorney's fees) neither

gives, nor purports to give, to the appellee (lawyer) any right whatsoever, personal or real, in and to her (Mrs. Harden's)

aforesaid share in the conjugal partnership. The amount thereof is simply a basis for the computation of said fees."

The Court of Appeals did not err in dismissing the petition for mandamus, for while it is true that, as contended by thepetitioner, public policy favors the probate of a will, it does not necessarily follow that every will that is presented for probate,

should be allowed. The law lays down procedures which should be observed and requisites that should be satisfied before a will

may be probated. Those procedures and requirements were not followed in this case resulting in the disallowance of the will.

There being no valid will, the motion to withdraw the probate petition was inconsequential.prLL

Petitioner was not a party to the probate proceeding in the lower court. He had no direct interest in the probate of the will . His

only interest in the estate is an indirect interest as former counsel for a prospective heir. In Paras vs. Narciso, 35 Phil. 244, We

had occasion to rule that one who is only indirectly interested in a will may not interfere in its probate. Thus:

". . . the reason for the rule excluding strangers from contesting the will, is not that thereby the court

maybe prevented from learning facts which would justify or necessitate a denial of probate, but rather

that the courts and the litigants should not be molested by the intervention in the proceedings of persons

with no interest in the estate which would entitle them to be heard with relation thereto." (Paras vs.

Narciso, 35 Phil. 244, 246.)

Similary, in Morente vs. Firmalino, 40 O.G. 21st Supp. 1, We held:

"We are of the opinion that the lower court did not err in holding that notice of an attorney's lien did not

entitle the attorney-appellant to subrogate himself in lieu of his client. It only gives him the right to

collect a certain amount for his services in case his client is awarded a certain sum by the court."

WHEREFORE, the petition for certiorari is denied for lack of merit. Costs against the petitioner.

SO ORDERED.

Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.

THIRD DIVISION

[G.R. No. 91958. January 24, 1991.]

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

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Arnold V. Guerrero & Associates for petitioners.

Teodoro O. Domalanta for and on his behalf as private respondent.

D E C I S I O N

GUTIERREZ, JR.,J p:

The practice of law is a profession rather than trade. Courts must guard against the charging of unconscionable and excessive

fees by lawyers for their services when engaged as counsel. Whether or not the award of attorney's fees in this case is

reasonable, being in the nature of contingent fees, is the principal issue.

This petition for review on certiorari assails:

1)The Decision of the public respondent dated September 12, 1989 which dismissed the petitioners' appeal thereby upholding

the reasonableness of the respondent lawyer's lien as attorney's fees over the properties of his clients; and

2)The Resolution of the public respondent dated January 30, 1990 which denied the petitioners' motion for reconsideration.

The grounds relied upon by the petitioners are as follows:

"The respondent Court, in upholding the entitlement of private respondent-attorney on the attorney's

fees he claimed, decided the question in a manner not in accord with law or with the applicable decisions

of this Honorable Tribunal.

"The respondent Court, in refusing to review and determine the propriety, reasonableness and validity of

the attorney's fees claimed by the private respondent-attorney, departed from the usual course of

judicial proceedings. LibLex

"The respondent Court, in failing to declare the attorneys fees claimed by the private respondent-

attorney as unconscionable, excessive, unreasonable, immoral and unethical, decided the question in a

way not in accord with law and with applicable decisions of this Honorable Tribunal." (Petition, pp. 12-13;

Rollo, pp. 16-17)

The following are the antecedent facts pertinent to the case at bar:

The respondent lawyer was retained as counsel by his brother-in-law and sister, the now deceased petitioners' parents,

spouses Aurelio and Felicidad Licudan. His services as counsel pertained to two related civi l cases docketed as Civil Case No. Q-

12254 for partition and Civil Case No. Q-28655 for a sum of money in connection with the redemption of the property subject

matter of the two cases covered by Transfer Certificate of Title No. 818 of the Register of Deeds of Quezon City. In both cases,

the respondent lawyer obtained a judgment in favor of his clients.

On August 13, 1979, the respondent lawyer filed a Petition for Attorney's Lien with Notification to his Clients which

substantially alleged that his clients executed two written contracts for professional