ethics whole case canon 14 onwards

8/12/2019 Ethics Whole Case Canon 14 Onwards

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Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

A.C. No. 6155 March 14, 2006

MA. GINA L. FRANCISCO, JOSEPHINE S. TAN and CARLOS M.JOAQUIN, Complainants,vs.ATTY. JAIME JUANITO P. PORTUGAL, Respondent.

D E C I S I O N

TINGA, J .:

Complainants filed before this Court an affidavit-complaint1on 15

August 2003 against Atty. Jaime Juanito P. Portugal (respondent) forviolation of the Lawyers Oath, gross misconduct, and grossnegligence. Complainants are related to petitioners in G.R. No.152621-23 entitled SPO1 Ernest C. Francisco, SPO1 Donato F. Tanand PO3 Rolando M. Joaquin v. People of the Philippines, in whosebehalf respondent filed the Petition for Review on Certiorari (AdCautelam) in the case.

The complaint against respondent originated from his allegedmishandling of the above-mentioned petition which eventually led toits denial with finality by this Court to the prejudice of petitioners

therein.

The facts are as follows:

On 21 March 1994, SPO1 Ernesto C. Francisco, SPO1 Donato F. Tanand PO3 Rolando M. Joaquin (eventually petitioners in G.R. No.152621-23, collectively referred to herein as the accused) wereinvolved in a shooting incident which resulted in the death of twoindividuals and the serious injury of another. As a result, Informationswere filed against them before the Sandiganbayan for murder andfrustrated murder. The accused pleaded not guilty and trial ensued.

After due trial, the Sandiganbayan2found the accused guilty of twocounts of homicide and one count of attempted homicide.

At that juncture, complainants engaged the services of hereinrespondent for the accused. Respondent then filed a Motion forReconsideration with the Sandiganbayan but it was denied in aResolution dated 21 August 2001. Unfazed by the denial, respondentfiled an Urgent Motion for Leave to File Second Motion forReconsideration, with the attached Second Motion forReconsideration.3Pending resolution by the Sandiganbayan,respondent also filed with this Court a Petition for Review on Certiorari(Ad Cautelam) on 3 May 2002.

Thereafter, complainants never heard from respondent again despitethe frequent telephone calls they made to his office. When respondentdid not return their phone inquiries, complainants went torespondents last known address only to find out that he had movedout without any forwarding address.

More than a year after the petition was filed, complainants wereconstrained to personally verify the status of thead cautelampetitionas they had neither news from respondent about the case norknowledge of his whereabouts. They were shocked to discover thatthe Court had already issued a Resolution4dated 3 July 2002,denying the petition for late f iling and non-payment of docket fees.

Complainants also learned that the said Resolution had attainedfinality and warrants of arrest5had already been issued against theaccused because respondent, whose whereabouts remained

unknown, did nothing to prevent the reglementary period for seekingreconsideration from lapsing.

In his Comment,6respondent states that it is of vital significance thatthe Court notes that he was not the original counsel of the accused.He only met the accused during the promulgation of theSandiganbayan decision convicting the accused of two counts ofhomicide and one count of attempted homicide. He was merelyrequested by the original counsel to be on hand, assist the accused,and be present at the promulgation of the Sandiganbayan decision.

Respondent claims that there was no formal engagement undertakenby the parties. But only because of his sincere effort and in true spirit
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of the Lawyers Oath did he file the Motion for Reconsideration.Though admitting its highly irregular character, respondent also madeinformal but urgent and personal representation with the members ofthe Division of the Sandiganbayan who promulgated the decision ofconviction. He asserts that because of all the efforts he put into thecase of the accused, his other professional obligations were neglectedand that all these were done without proper and adequateremuneration.

As to the ad cautelam petition, respondent maintains that it was filedon time. He stresses that the last day of filing of the petition was on 3

April 2002 and on that very day, he filed with this Court a Motion forExtension of Time to File Petition for Review,7seeking an additionalthirty (30) days to file the petition. Subsequently, on 3 May 2002, hefiled the petition by registered mail and paid the corresponding docketfees. Hence, so he concludes, it was filed within the reglementaryperiod.

Soon thereafter, respondent recounted all the "herculean" efforts hemade in assisting the accused for almost a year after thepromulgation of the Sandiganbayan decision. He considered the factthat it was a case he had just inherited from the original counsel; theeffect of his handling the case on his other equally importantprofessional obligations; the lack of adequate financial considerationfor handling the case; and his plans to travel to the United States toexplore further professional opportunities. He then decided to formallywithdraw as counsel for the accused. He wrote a letter to PO3Rolando Joaquin (PO3 Joaquin), who served as the contact personbetween respondent and complainants, explaining his decision to

withdraw as their counsel, and attaching the Notice to Withdraw whichrespondent instructed the accused to sign and file with the Court. Hesent the letter through registered mail but unfortunately, he could notlocate the registry receipt issued for the letter.

Respondent states that he has asked the accused that he bedischarged from the case and endorsed the Notice of Withdrawal toPO3 Joaquin for the latter to file with the Court. Unfortunately, PO3Joaquin did not do so, as he was keenly aware that it would bedifficult to find a new counsel who would be as equallyaccommodating as respondent. Respondent suggests this might have

been the reason for the several calls complainants made to his office.

On 9 February 2004, the Court resolved to refer the matter to theIntegrated Bar of the Philippines (IBP) for investigation, report andrecommendation.1awph!l.net

The case was assigned to Investigating Commissioner Leland R.Villadolid, Jr. (Commissioner Villadolid) who sent notices of hearing tothe parties but of the three complainants, only complainant CarlosJoaquin appeared. Thus, in the mandatory conference held, the othertwo complainants were declared as having waived their rights tofurther participate in the IBP proceedings.8

The parties were directed to file their respective position papers andon 27 May 2005, Commissioner Villadolid submitted his Report andRecommendation finding respondent guilty of violation of the Code ofProfessional Responsibility9and recommended the imposition ofpenalty ranging from reprimand to suspension of six (6)months.1awph!l.net10On 12 November 2005, the Board of Directorsof the IBP resolved to adopt and approve Commissioner Villadolids

recommendation to find respondent guilty and specifically torecommend his suspension for six (6) months as penalty.

The only issue to be resolved in the case at bar is, considering all thefacts presented, whether respondent committed gross negligence ormisconduct in handling G.R. No. 152621-23, which eventually led tothe ad cautelam petitions dismissal with finality.

After careful consideration of the records of the case, the Court findsthe suspension recommended by the IBP proper.

In a criminal case like that handled by respondent in behalf of theaccused, respondent has a higher duty to be circumspect in defendingthe accused for it is not only the property of the accused which standsto be lost but more importantly, their right to their life and liberty. Asheld in Regala v. Sandiganbayan:11

Thus, in the creation of lawyer-client relationship, there are rules,ethical conduct and duties that breathe life into it, among those, thefiduciary duty to his client which is of very delicate, exacting andconfidential character, requiring a very high degree of fidelity andgood faith, that is required by reason of necessity and public interest x

x x .
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It is also the strict sense of fidelity of a lawyer to his client thatdistinguishes him from any other profession in society. x x x12

At the onset, the Court takes notice that the ad cautelampetition wasactually filed out of time. Though respondent filed with theSandiganbayan an Urgent Motion for Leave to File Second Motion forReconsideration with the attached Second Motion forReconsideration, he should have known that a second motion forreconsideration is a prohibited pleading13and it rests on the sounddiscretion of the Sandiganbayan to admit it or not. Thus, in effect, themotion did not toll the reglementary period to appeal. Having failed todo so, the accused had already lost their right to appeal long beforerespondent filed his motion for extension. Therefore, respondentcannot now say he filed the ad cautelam petition on time. Alsoimportant to note is the allegation of complainants that theSandiganbayan denied the second motion for reconsideration in itsResolution dated 7 February 2002. This respondent does not dispute.

As to respondents conduct in dealing with the accused andcomplainants, he definitely fell short of the high standard ofassiduousness that a counsel must perform to safeguard the rights ofhis clients. As aptly observed by Commissioner Villadolid, respondenthad not been quite candid in his dealings with the accused orcomplainants. The Court notes that though respondent represented tothe accused that he had changed his office address, still, from theexamination of the pleadings14he filed, it can be gleaned that all ofthe pleadings have the same mailing address as that known tocomplainants. Presumably, at some point, respondents office wouldhave received the Courts Resolution dismissing the petition. Of

course, the prudent step to take in that situation was to at least informthe client of the adverse resolution since they had constantly calledrespondents office to check the status of the case. Even when heknew that complainants had been calling his office, he opted not toreturn their calls.

Respondent professed an inkling that the several phone calls ofcomplainants may have been about the letter he sent PO3 Joaquinregarding his desire to be discharged as counsel of the case.However, though aware of such likelihood, respondent still did notreturn their calls. Had he done so, he and complainants could have

threshed out all unresolved matters between them.

Had respondent truly intended to withdraw his appearance for theaccused, he as a lawyer who is presumably steeped in courtprocedures and practices, should have filed the notice of withdrawalhimself instead of the accused. At the very least, he should haveinformed this Court through the appropriate manifestation that he hadalready given instructions to his clients on the proper way to go aboutthe filing of the Notice of Withdrawal, as suggested by CommissionerVilladolid. In not so doing, he was negligent in handling the case ofthe accused.

Certainly, respondent ought to know that he was the one who shouldhave filed the Notice to Withdraw and not the accused. His tale thathe sent a registered letter to the accused and gave them instructionson how to go about respondents withdrawal from the case defiescredulity. It should have been respondent who undertook theappropriate measures for the proper withdrawal of his representation.He should not have relied on his client to do it for him if such was trulythe case. Without the presentation of the alleged registry receipt (orthe return card, which confirms the receipt of the mail by the recipient)of the letter he allegedly sent to PO3 Joaquin, the Court cannot lendcredence to respondents naked claim, especially so thatcomplainants have been resolute in their stand that they did not hearfrom respondent after the latter had filed the ad cautelampetition. Hecould relieve himself of his responsibility as counsel only first bysecuring the written conformity of the accused and filing it with thecourt pursuant to Rule 138, Section 26 of the Rules of Court.15

The rule in this jurisdiction is that a client has the absolute right toterminate the attorney-client relation at anytime with or without cause.

The right of an attorney to withdraw or terminate the relation otherthan for sufficient cause is, however, considerably restricted. Amongthe fundamental rules of ethics is the principle that an attorney whoundertakes to conduct an action impliedly stipulates to carry it to itsconclusion. He is not at liberty to abandon it without reasonablecause. A lawyers right to withdraw from a case before its finaladjudication arises only from the clients written consent or from agood cause.16

We agree with Commissioner Villadolid that the dismissal of the adcautelam petition was primarily due to the gross negligence of

respondent. The Court has stressed in Aromin v. Boncavil

17

that:
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Once he agrees to take up the cause of the client, the lawyer owesfidelity to such cause and must always be mindful of the trust andconfidence reposed in him. He must serve the client with competenceand diligence, and champion the latters cause with wholeheartedfidelity, care, and devotion. Elsewise stated, he owes entire devotionto the interest of the client, warm zeal in the maintenance and defenseof his clients rights, and the exertion of the his utmost learning andability to the end that nothing be taken or withheld from his client,save by the rules of law, legally applied. This simply means that hisclient is entitled to the benefit of any and every remedy and defensethat is authorized by the law of the land and he may expect his lawyerto assert every such remedy or defense. If much is demanded from anattorney, it is because the entrusted privilege to practice law carrieswith it the correlative duties not only to the client but also to the court,to the bar, and to the public. A lawyer who performs his duty withdiligence and candor not only protects the interest of his client; healso serves the ends of justice, does honor to the bar, and helpsmaintain the respect of the community to the legal profession.18

Respondent has time and again stated that he did all the endeavorshe enumerated without adequate or proper remuneration. However,complainants have sufficiently disputed such claim when theyattached in their position paper filed before the IBP a machinevalidated deposit slip in the amount of P15,500.00 for the Metro Bank

savings account of one Jaime Portugal with account number7186509273.19Respondent has neither admitted nor denied havingclaimed the deposited amount.

The Court also rejects respondents claim that there was no formal

engagement between the parties and that he made all his efforts forthe case without adequate and proper consideration. In the words ofthen Justice Panganiban (presently Chief Justice) in Burbe v. Atty.Magulta:20

After agreeing to take up the cause of a client, a lawyer owes fidelityto both cause and client, even if the client never paid any fee for theattorney-client relationship. Lawyering is not a business; it is aprofession in which duty of public service, not money, is the primaryconsideration.21

Also to the point is another case where this Court ruled, thus:

A written contract is not an essential element in the employment of anattorney; the contract may be express or implied. To establish therelation, it is sufficient that the advice and assistance of an attorney issought and received in any matter pertinent to his profession. x x x22

Hence, even if respondent felt under-compensated in the case heundertook to defend, his obligation embodied in the Lawyers Oathand the Code of Professional Responsibility still remains unwavering.The zeal and the degree of fervor in handling the case should neitherdiminish nor cease just because of his perceived insufficiency ofremuneration.

Lastly, the Court does not appreciate the offensive appellationrespondent called the shooting incident that the accused wasengaged in. He described the incident, thus: "the accused policeofficers who had been convicted of [h]omicide for the salvage ofFroilan G. Cabiling and Jose M. Chua and [a]ttempted [h]omicide ofMario C. Macato."23Rule 14.0124of the Code of Professional

Responsibility clearly directs lawyers not to discriminate clients as totheir belief of the guilt of the latter. It is ironic that it is the defensecounsel that actually branded his own clients as being the culprits that"salvaged" the victims. Though he might think of his clients as that,still it is unprofessional to be labeling an event as such when even theSandiganbayan had not done so.

The IBP Board of Governors recommended the suspension ofrespondent for six (6) months, the most severe penalty recommendedby Commissioner Villadolid, but did not explain why such penalty was

justified. In a fairly recent case where the lawyer failed to file an

appeal brief which resulted to the dismissal of the appeal of his clientin the Court of Appeals, the Court imposed upon the erring lawyer thepenalty of three (3) months suspension.

25The Court finds it fit toimpose the same in the case at bar.

WHEREFORE, premises considered, respondent is herebySUSPENDED from the practice of law for three (3) months. Let a copyof the Resolution be furnished the Bar Confidant for appropriateannotation in the record of respondent.

SO ORDERED.

DANTE O. TINGA
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Manila

EN BANC

G.R. Nos. 154297-300 February 15, 2008

PUBLIC ATTORNEYS OFFICE, MAXIMO B. USITA, JR. andWILFREDO C. ANDRES,petitioners,vs.THE HON. SANDIGANBAYAN, SPECIAL DIVISION,respondent.

DECISION

AZCUNA, J.:

This is a petition for certiorari alleging that the Sandiganbayan,

Special Division, committed grave abuse of discretion amounting tolack or excess of jurisdiction in issuing the Resolutions dated May 28,2002 and June 11, 2002 retaining petitioners, Atty. Maximo B. Usita,Jr. and Atty. Wilfredo C. Andres of the PublicAttorneys Office (PAO),as counsels de oficioof then accused President Joseph Estrada andhis son, Jose "Jinggoy" Estrada.

The facts are as follows:

On March 15 and 18, 2002, Atty. Persida V. Rueda-Acosta, ChiefPublic Attorney of PAO personally appeared before respondent

Special Division of the Sandiganbayan1to request the relief of theappearance of PAO as de oficiocounsel for accused PresidentJoseph Estrada and Jose Estrada in their criminal cases before theSandigabayan. However, the request was denied.

On May 8, 2002, the Chief Public Attorney filed an Urgent and Ex-ParteMotion to be Relieved as Court-Appointed Counsel with theSpecial Division of the Sandiganbayan, praying that she be relieved ofher duties and responsibilities as counsel de oficiofor the saidaccused on the ground that she had a swelling workload consisting ofadministrative matters and that the accused are not indigent persons;

hence, they are not qualified to avail themselves of the services ofPAO.

On May 9, 2002, respondent Court found the reasons of the ChiefPublic Attorney to be plausible and relieved the Chief Public Attorneyas counsel de oficioof former President Joseph Estrada and MayorJose Estrada.

On May 14, 2002, the remaining eight PAO lawyers filed an Ex-ParteMotion To Be Relieved As Court-Appointed Counsels withrespondent Court on the ground that the accused, former PresidentJoseph Estrada and Jose Estrada, are not indigents; therefore, theyare not qualified to avail themselves of the services of PAO.

On May 28, 2002, respondent Court issued a Resolution denying themotion, but retaining two of the eight PAO lawyers, namely, thepetitioners Atty. Usita, Jr. and Atty. Andres. The pertinent portion ofthe Resolution reads:

. . . There being no compelling and sufficient reasons toabandon the Courts previous rulings, the instant motion ishereby DENIED. While it is true that a similar motion filed bythe PAO Chief Public Attorney Persida Rueda-Acosta wasgranted per Courts Resolution of May 9, 2002, therationalization advanced by Atty. Rueda was found meritoriousby the Court in that there was unexpected upsurge in heradministrative workload as head of the office including theadministration and supervision of more or less 1,000 PAOlawyers and 700 staff nationwide and many other functions

which require her immediate attention and undivided time.

Nonetheless, considering that there are eight (8) deoficiocounsels from the Public Attorneys Office (PAO), theCourt, in the exercise of its sound discretion, deems it properto reduce their number and retain only two (2) of them,namely: Atty. Wilfredo C. Andres and Atty. Maximo B. Usita tocontinue their duties and responsibilities as counsels deoficiofor accused Joseph and Jose "Jinggoy" Estrada.2

The retained lawyers of PAO joined the four Court-appointed counsels

from the private sector, namely, Prospero Crescini, Justice ManuelPamaran, Irene Jurado and Noel Malaya.
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On June 4, 2002, petitioners filed a motion for reconsideration of theResolution dated May 28, 2002.

In a Resolution dated June 10, 2002, respondent denied the motionfor reconsideration, thus:

xxx xxx xxx

It appearing that the ground raised by the movants PAOlawyers are mere rehashes/reiterations of their previousarguments which the Court finds to be not valid justification forthem to be relieved, either temporarily or permanently of theirduties and responsibilities as counsels de oficioin thesecases, the instant motion in hereby DENIED.3

Hence, this petition for certiorarialleging grave abuse of discretion byrespondent in rendering the Resolutions dated May 28, 2002 andJune 10, 2002.

On September 21, 2004, PAO filed a Manifestation and Compliancewhich informed the Court that petitioners Atty. Usita and Atty. Andreswere appointed as Assistant City Prosecutors of the Quezon CityProsecutors Office sometime in August 2002, and that PAO is left asthe lone petitioner in this case.

The issue is whether or not respondent committed grave abuse ofdiscretion amounting to lack or excess of jurisdiction in issuing thesubject Resolutions retaining two PAO lawyers to act as counsels deoficiofor the accused who are not indigent persons.

PAO contends that it is undeniable that in retaining its two PAOlawyers as counsels de oficioof former President Estrada and JoseEstrada, respondent Court relied upon the provisions of Sec. 7, Rule116 of the Revised Rules of Criminal Procedure, thus:

Sec. 7.Appointment of counsel de oficio.The Court,considering the gravity of the offense and the difficulty of thequestions that may arise, shall appoint as counsel deoficiosuch members of the bar in good standing, who, byreason of their experience and ability, can competently defend

the accused.

PAO, however, submits that the power of respondent to appoint andretain PAO lawyers as counsels de oficiois limited by Sec. 20 ofLetter of Implementation (LOI) No. 20 dated December 31, 1972 andPresidential Decree (PD) No. 1725 dated September 26, 1980, thus:

LOI No. 20

Sec. 20. The Citizens Legal Assistance Office shall represent,free of charge, indigent persons mentioned in Republic Act No.6035, or the immediate members of their family, in all civil,administrative, and criminal cases where after dueinvestigation the interest of justice will be served thereby,except agrarian reform cases as defined by Republic Act3844, as amended, which shall be handled by the Bureau of

Agrarian Legal Assistance of the Department of AgrarianReform, and such cases as are now handled by theDepartment of Labor.

PD No. 1725

WHEREAS, the Citizens Legal Assistance Office as the lawoffice of the Government of the Republic of the Philippines forindigent and low-income persons, performs a vital role in theimplementation of the legal aid program of the State, inupholding the rule of law, in the protection and safeguarding ofthe institutional and statutory rights of the citizenry, and in theefficient and speedy administration of justice.

The Revised Administrative Code of 1987 renamed the Citizens

Legal Assistance Office as the Public Attorneys Office and retainedits powers and functions. Section 14, Chapter 5, Title III, Book V of thesaid Code provides:

Sec. 14. Public Attorneys Office (PAO).The Citizens LegalAssistance Office (CLAO) is renamed Public Attorneys Office(PAO). It shall exercise the powers and functions as are nowprovided by law for the Citizens Legal Assistance Office ormay hereafter be provided by law.

In the implementation of the foregoing provisions of law, PAO issued

Memorandum Circular No. 5, Series of 1997, as amended by
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Memorandum Circular No. 12, Series of 2001, and subsequently byMemorandum Circular No. 18, Series of 2002, defining who areindigent persons qualified to avail themselves of the services of PAO,thus:

Section 3. Indigency Test.Taking into consideration recentsurveys on the amount needed by an average Filipino to 1)buy its food consumption basket and b) pay for its householdand personal expenses, the following shall be consideredindigent persons:

1. Those residing in Metro Manila whose family incomedoes not exceed P14,000.00 a month;

2. Those residing in other cities whose family incomedoes not exceed P13,000.00 a month;

3. Those residing in all other places whose family

income does not exceed P12,000.00 a month.

The term "family income" as herein employed shall beunderstood to refer to the gross income of the litigant and thatof his or her spouse, but shall not include the income of theother members of the family.

PAO states that the Statement of Assets and Liabilities attached tothe records of the cases of the accused show that they were notqualified to avail themselves of the services of PAO, since they couldafford the services of private counsels of their own choice. It noted

that the wife of former President Estrada had an incomeexceedingP14,000.

PAO argues that the only exception when it can appear on behalf of anon-indigent client is when there is no available lawyer to assist suchclient in a particular stage of the case, that is, during arraignment orduring the taking of the direct testimony of any prosecution witnesssubject to cross-examination by the private counsel on record. Theappearance of PAO is only provisional in those instances.

PAO asserts that the sole reliance of respondent on Sec. 7, Rule 116

of the Revised Rules of Criminal Procedure is improper. Respondent

should have not only considered the character of PAO lawyers asmembers of the Bar, but especially their mandate to serve onlyindigent persons. In so doing, the contradiction in the exercise ofPAOs duties and responsibilities could have been avoided.

PAO asserts that while its lawyers are also aware of their duties underRule 14.02 of the Code of Professional Responsibility,4PAO lawyersare limited by their mandate as government lawyers.

Hence, PAO submits that the subject Resolutions of respondent arenot in accordance with the mandate of PAO and affect the rendition ofeffective legal service to a large number of its deserving clients.

In defense, respondent Special Division of the Sandiganbayan,represented by the Office of the Special Prosecutor, stated that it didnot commit grave abuse of discretion since it did not act in anarbitrary, capricious and whimsical manner in issuing the subjectResolutions.

It explained that it was facing a crisis when respondent issued thesubject Resolutions. At that time, the accused, former PresidentJoseph Estrada, relieved the services of his counsels on nationwidetelevision. Subsequently, the counsels of record of co-accused JoseEstrada withdrew, and both accused were adamant against hiring theservices of new counsels because they allegedly did not believe inand trust the Sandiganbayan. The Sandiganbayan had the duty todecide the cases, but could not proceed with the trial since theaccused were not assisted by counsel.

Respondent stated that, bound by its duty to protect the constitutionalright of the accused to be heard by himself and counsel, it exercisedits prerogative under Sec. 7, Rule 116 of the Revised Rules ofCriminal Procedure,5and appointed Chief Public Attorney Persida V.Rueda-Acosta of the PAO and eight other PAO lawyers, includingpetitioners, to act as counsels de oficiofor the said accused. As notedearlier, the Chief Public Attorney and six PAO lawyers were laterrelieved from such duty, but respondent retained two PAO lawyers ascounsels de oficiofor the accused.

Considering the attendant situation at the time of the issuance of the

subject Resolutions, respondent asserts that it did not act in anarbitrary, despotic, capricious or whimsical manner in issuing the
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subject Resolutions. In appointing the PAO lawyers to act as counselsfor the said accused, respondent merely acted within the prerogativegranted to it by the Rules of Court in order to protect the constitutionalright of the accused to be heard by himself and counsel. Respondentalso merely required petitioners to perform their duty as members ofthe Bar and officers of the court to assist the court in the efficientadministration of justice.

Grave abuse of discretion implies such capricious and whimsicalexercise of judgment as is equivalent to lack of jurisdiction or, in otherwords, the exercise of the power in an arbitrary manner by reason ofpassion, prejudice, or personal hostility, and it must be so patent orgross as to amount to an evasion of a positive duty or to a virtualrefusal to perform the duty enjoined or to act at all in contemplation oflaw.6

The Court holds that respondent did not gravely abuse its discretion inissuing the subject Resolutions as the issuance is not characterizedby caprice or arbitrariness. At the time of PAOs appointment, theaccused did not want to avail themselves of any counsel; hence,respondent exercised a judgment call to protect the constitutional rightof the accused to be heard by themselves and counsel during the trialof the cases.

Subsequently, respondent reduced the number of PAO lawyersdirected to represent the accused, in view of the engagement of newcounsels de parte, but retained two of the eight PAO lawyersobviously to meet such possible exigency as the accused againrelieving some or all of their private counsels.

In any event, since these cases of the accused in the Sandiganbayanhave been finally resolved, this petition seeking that PAO, the onlyremaining petitioner, be relieved as counsel de oficiotherein hasbecome moot.

WHEREFORE, the petition is DISMISSEDfor being moot.

No costs.

SO ORDERED.


Manila

EN BANC

A.C. No. 4724 April 30, 2003

GORETTI ONG,complainant,vs.ATTY. JOEL M. GRIJALDO,respondent.

PER CURIAM:

The fiduciary duty of a lawyer and advocate is what places the lawprofession in a unique position of trust and confidence, anddistinguishes it from any other calling. Once this trust and confidenceis betrayed, the faith of the people not only in the individual lawyer but

also in the legal profession as a whole is eroded. To this end, allmembers of the bar are strictly required to at all times maintain thehighest degree of public confidence in the fidelity, honesty, andintegrity of their profession.1In this administrative case for disbarment,respondent Atty. Joel M. Grijaldo failed to perform his sworn duty topreserve the dignity of the legal profession.

Complainant Goretti Ong is a widow residing in Talayan Village,Quezon City. Sometime in the early part of 1996, she engaged theservices of respondent, a practicing lawyer in Bacolod City, as privateprosecutor in Criminal Case No. 52843 before the Metropolitan Trial

Court in Cities of Bacolod City, Branch 5, against Lemuel Sembranoand Arlene Villamil for violation of Batas Pambansa Bilang 22.2Duringone of the hearings of the case, the accused offered to amicably settletheir civil obligation to complainant by paying the amount ofP180,000.00. Complainant accepted the offer on the condition thatpayment shall be made in cash.

At the hearing held on July 17, 1996, respondent advised complainantto wait outside the courtroom. When he came out, he handed tocomplainant cash in the amount of P100,000.00 and MetrobankCheck No. 0701263862 for P80,000.00, postdated August 16, 1996,

drawn by Atty. Roger Reyes, counsel for the accused. Complainant
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objected to the check payment and refused to settle the case, but heassured her that the check was drawn by a reputable lawyer.Complainant was prevailed upon by respondent into signing anaffidavit of desistance, but she instructed him not to file it in court untilthe check is cleared.

Upon presentment on its maturity date, the check was dishonored dueto a stop-payment order from the drawer. Complainant immediatelyinformed respondent of the dishonor, and the latter told her that he willtalk to Atty. Reyes about it. Later, when complainant met withrespondent in Manila, he relayed to her Atty. Reyes' offer to replacethe check with cash. Several weeks passed without any payment ofthe proceeds of the check, despite complainant's repeated telephonecalls to respondent. Sometime in December 1996, she suggested thatrespondent move for a hearing of the case, but he told her that courtsare not inclined to set hearings near the Christmas season.

On December 17, 1996, complainant personally went to Bacolod Cityto inquire about her case. She was surprised to learn that the samewas dismissed as early as September 26, 1996.3Apparently,respondent submitted her Affidavit of Desistance4and, on the basisthereof, the public prosecutor moved for the dismissal of the casewhich was granted by the court. When complainant confrontedrespondent, he admitted to her that he had already received theamount of P80,000.00 from Atty. Reyes but he used the same to payfor his financial obligations.

Thus, on April 2, 1997, complainant filed an Administrative Complaintagainst respondent for disbarment.5

Complainant further alleged in her complaint that respondentrepresented her in another case, entitled "People of the Philippinesversus Norma Mondia," also for violation of B.P. 22, where she wasthe offended party. Respondent approached the accused, NormaMondia, and offered to delay the hearing of the case in considerationof the amount of P10,000.00. However, Mondia did not have thatamount of money. Attached to the complaint is the affidavit of NormaMondia attesting to this fact.6

Furthermore, Henry Tiu, a former client of respondent, executed an

affidavit, which is attached to the complaint, alleging that he gaverespondent the amount of P3,000.00 for the purpose of posting his

bail bond, but respondent did not post his bail which resulted in Tiu'sarrest.7

Likewise, a certain Luz Dimailig, whose affidavit is also attached tothe complaint, averred that respondent represented her as counsel forplaintiff in a civil case before the Regional Trial Court of Bacolod City,Branch 52; that the case was dismissed by the trial court; that theappeal filed by respondent to the Court of Appeals was dismissed dueto his failure to file the appellant's brief; and that the petition for reviewbefore the Supreme Court was denied for lack of proof of service onthe Court of Appeals, late f iling and late payment of docket fees.Moreover, Dimailig alleged that she gave respondent the amount ofP10,000.00 for settling the said civil case, but she later learned thathe did not remit the money to the defendants or their counsel.8

On June 25, 1997, respondent was required to file his comment withinten days from notice.9Respondent filed a Motion for Extension ofTime, alleging that he has not received a copy of the complaint.10OnFebruary 5, 1998,11complainant furnished respondent a copy of thecomplaint. However, despite receipt of a copy of the complaint,respondent still failed to file his comment.

On October 19, 1998, respondent was required to show cause why heshould not be disciplinarily dealt with or held in contempt for failing tofile his comment.12Respondent filed a Compliance, stating that thecopy of the complaint he received from complainant was not legible.Complainant again furnished respondent with a clearer and morelegible copy of the complaint including its annexes; but respondentstill did not file his comment. Consequently, on June 14, 2000,

another show cause order was issued againstrespondent.13Respondent replied by stating that the quality of thecopy furnished him by complainant was worse than the first one hereceived.

Dissatisfied with respondent's explanation, respondent was ordered topay a fine of P1,000.00, which he complied with on November 27,2000.14However, he again failed to file his comment and, instead,moved for additional time to file said comment.

On August 13, 2001, this case was referred to the Integrated Bar of

the Philippines (IBP) for investigation, report andrecommendation.15The records of the IBP show that respondent has


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not filed his comment to the complaint. On January 18, 2002, theInvestigating Commissioner, Manuel A. Tiuseco, submitted his reportrecommending the disbarment of respondent.16However, in itsResolution No. XV-2002-553 dated October 19, 2002, the IBP Boardof Governors modified the penalty of disbarment and recommendedinstead respondent's indefinite suspension from the practice of law forgrossly immoral conduct and deceit.17

After a careful review of the records of this case, we find therecommendation of Commissioner Manuel A. Tiuseco well-taken.

It is clear that respondent gravely abused the trust and confidencereposed in him by his client, the complainant. Were it not forcomplainant's vigilance in inquiring into the status of her case, shewould not have known that the same had already been dismissed onSeptember 26, 1996. Respondent deliberately withheld this fact fromher, notwithstanding that she talked to him sometime in December1996.

Canon 18 of the Code of Professional Responsibility provides that alawyer shall serve his client with competence and diligence. Morespecifically, Rule 18.03 and Rule 18.04 state:

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

Rule 18.04.A lawyer shall keep the client informed of thestatus of his case and shall respond within a reasonable time

to the client's request for information.

Respondent breached his duty to his client when he failed to informcomplainant of the status of the criminal case. His negligence shows aglaring lack of the competence and diligence required of everylawyer.18His infraction is rendered all the more deplorable by the factthat complainant is a resident of Quezon City and the case was filedin Bacolod City. It was precisely for this reason that complainantengaged the services of respondent, a Bacolod-based lawyer, so thather interests in the case may be amply protected in her absence.Respondent's failure to look after his client's welfare in the case was a

gross betrayal of his fiduciary duty and a breach of the trust andconfident which was reposed in him. In a similar case, we held:

It is settled that a lawyer is not obliged to act as counsel forevery person who may wish to become his client. He has theright to decline employment subject however, to the provisionof Canon 14 of the Code of Professional Responsibility. Oncehe agrees to take up the cause of a client, he owes fidelity tosuch cause and must always be mindful of the trust andconfidence reposed to him. Respondent Meneses, as counsel,had the obligation to inform his client of the status of the case

and to respond within a reasonable time to his client's requestfor information. Respondent's failure to communicate with hisclient by deliberately disregarding its request for an audienceor conference is an unjustifiable denial of its right to be fullyinformed of the developments in and the status of its case.19

Worse, when respondent used the money which he received fromAtty. Reyes to pay for his own obligations, he violated Canon 16 of theCode of Professional Responsibility, which states that "[a] lawyer shallhold in trust all moneys and properties of his client that may come intohis possession." Furthermore:

Rule 16.01.A lawyer shall account for all money or propertycollected or received for or from the client.

Rule 16.02.A lawyer shall keep the funds of each clientseparate and apart from his own and those of others kept byhim.

Rule 16.03.A lawyer shall deliver the funds and property ofhis client when due or upon demand. However, he shall have

a lien over the funds and may apply so much thereof as maybe necessary to satisfy his lawful fees and disbursements,giving notice promptly thereafter to his client. He shall alsohave a lien to the same extent on all judgments andexecutions he has secured for his client as provided for in theRules of Court.

Respondent's misappropriation of the money entrusted to him and hisrefusal to account for it to his client despite repeated demands werecompetent proof of his unfitness for the confidence and trust reposedon him. His acts showed a lack of personal honesty and good moral

character as to render him unworthy of public confidence. He held themoney in trust for his client as settlement of the case he was handling.


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Upon receipt thereof, he was under obligation to immediately turn itover, in the absence of a showing that he had a lien over it. As alawyer, he should have been scrupulously careful in handling moneyentrusted to him in his professional capacity, because a high degreeof fidelity and good faith on his part is exacted.20

A lawyer, under his oath, pledges himself not to delay any man formoney or malice and is bound to conduct himself with all good fidelityto his clients. He is obligated to report promptly the money of his clientthat has come into his possession. He should not commingle it withhis private property or use it for his personal purposes without hisclient's consent. Respondent, by converting the money of his client tohis own personal use without her consent, was guilty of deceit,malpractice and gross misconduct. Not only did he degrade himselfbut as an unfaithful lawyer he besmirched the fair name of anhonorable profession.21

Aside from violating the Code of Professional Responsibility,respondent's failure to promptly turn over the money to his client andhis conversion of the same for his personal use rendered him liablefor contempt under Rule 138, Section 25 of the Rules of Court, to wit:

Unlawful retention of client's funds; contempt. When anattorney unjustly retains in his hands money of his client after ithas been demanded he may be punished for contempt as anofficer of the court who has misbehaved in his officialtransactions; but proceedings under this section shall not be abar to a criminal prosecution.

Furthermore, respondent violated his oath of office and duties ascounsel when he approached his client's opponent and offered todelay the case in exchange for money. His offer to delay the casewould have frustrated the interests of his client which he had sworn toprotect. As a lawyer, respondent should avoid any unethical orimproper practices that impede, obstruct or prevent the speedy,efficient and impartial adjudication of cases.22

Once he agrees to take up the cause of a client, the lawyerowes fidelity to such cause and must always be mindful of thetrust and confidence reposed in him. He must serve the client

with competence and diligence, and champion the latter'scause with wholehearted fidelity, care, and devotion. Elsewise

stated, he owes entire devotion to the interest of the client,warm zeal in the maintenance and defense of his client'srights, and the exertion of his utmost learning and ability to theend that nothing be taken or withheld from his client, save bythe rules of law, legally applied. This simply means that hisclient is entitled to the benefit of any and every remedy anddefense that is authorized by the law of the land and he mayexpect his lawyer to assert every such remedy or defense. If

much is demanded from an attorney, it is because theentrusted privilege to practice law carries with it the correlativeduties not only to the client but also to the court, to the bar,and to the public. A lawyer who performs his duty withdiligence and candor not only protects the interest of his client;he also serves the ends of justice, does honor to the bar, andhelps maintain the respect of the community to the legalprofession.23

Respondent's act of propositioning his client's opponent and offeringto delay the case against her was intended to benefit the latter.Hence, such act amounted to double-dealing and conflict of interest,and was unethical practice of law. Attorneys, like Caesar's wife, mustnot only keep inviolate their client's confidence, but must also avoidthe appearance of treachery and double-dealing, for only then canlitigants be encouraged to entrust their secrets to their attorneys whichis of paramount importance in the administration of justice.24

Finally, respondent's cavalier attitude in repeatedly ignoring thedirectives of this Court to file his comment constitutes utter disrespectto the judicial institution. His conduct indicates a high degree ofirresponsibility. A resolution of this Court is not to be construed as amere request, nor should it be complied with partially, inadequately orselectively.25Respondent's obstinate refusal to comply therewith notonly betrays a recalcitrant flaw in his character; it also underscores hisdisrespect of our lawful orders which is only too deserving of reproof.

Any departure from the path which a lawyer must follow as demandedby the virtues of his profession shall not be tolerated by this Court asthe disciplining authority. This is especially so, as in the instant case,where respondent even deliberately defied the lawful orders of theCourt for him to file his comment on the complaint, thereby

transgressing Canon 11 of the Code of Professional Responsibility


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which requires a lawyer to observe and maintain the respect due thecourts.26

All told, respondent's transgressions manifested dishonesty andamounted to grave misconduct and grossly unethical behavior whichcaused dishonor, not only to complainant, but to the noble professionto which he belongs, for it cannot be denied that the respect oflitigants for the profession is inexorably diminished whenever amember of the Bar betrays their trust and confidence.27He hasproved himself unworthy of membership in the legal profession andmust, therefore, be disbarred.

WHEREFORE, for dishonesty, grave misconduct, and grosslyunethical behavior, respondent ATTY. JOEL GRIJALDO isDISBARRED from the practice of law. His name is orderedSTRICKEN from the Roll of Attorneys. He is further directed to PAYcomplainant Goretti Ong the amount of P80,000.00 within ten (10)days from notice of this Decision.

This Decision shall take effect immediately. Copies thereof shall befurnished the Office of the Bar Confidant, to be appended torespondent's personal record; the Integrated Bar of the Philippines;the Office of the President; the Department of Justice; the Court of

Appeals; the Sandiganbayan; the Philippines Judges Association; andall courts of the land for their information and guidance.

SO ORDERED.

Davide, Jr., C .J ., Bellosillo, Puno, Vitug, Panganiban, Ynares-

Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,Carpio-Morales, Callejo, Sr. and Azcuna, JJ .,concur.Quisumbing, J .,is on leave.


Manila

EN BANC

A.C. No. 5948 January 22, 2003

(Formerly A.M. No. CBD-354)

GAMALIEL ABAQUETA,complainant,vs.ATTY. BERNARDITO A. FLORIDO,respondent.

R E S O L U T I O N

YNARES-SANTIAGO, J.:

This is an administrative complaint 1 against Atty. Bernardito A.Florido filed with the Integrated Bar of the Philippines (IBP)Commission on Bar Discipline, praying that appropriate sanctions beimposed on respondent for representing conflicting interests.

Complainant is a Filipino by birth who had acquired Americancitizenship. He resides at 15856 N. 15th Way, Phoenix, Arizona85022, U.S.A. Respondent is a practicing lawyer based in Cebu City.

On November 28, 1983, complainant engaged the professional

services of respondent trough his attorney-in-fact, Mrs. Charito Y.Baclig, to represent him in Special Proceedings No. 3971-R, entitled,"In the Matter of the Intestate Estate of Deceased BonifaciaAbaqueta,2Susana Uy Trazo, petitioner" before the Regional Trialcourt of Cebu.3

Accordingly, respondent entered his appearance in SpecialProceedings No. 3971-R as counsel for hereincomplainant.4Subsequently, he filed complainant's "Objections andComments to Inventory and Accounting," registering complainant'sobjection

. . . to the inclusion of the properties under Items 1 to 5contained in the inventory of the administratrix datedNovember 9, 1983. These properties are the sole andexclusive properties of the oppositorper the latest taxdeclarations already marked as Exhibits "2", "3", "4", "5" and"6" in the Formal Offer of Exhibits by oppositor in writing dated

August 17, 1983 x x x .5

Several years later, Milagros Yap Abaqueta filed an action for sum ofmoney against complainant, docketed as Civil Case No. CEB-11453

and entitled, "Milagros Yap Abaqueta vs. Gamaliel Abaqueta and


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Casiano Gerona."6Respondent signed the Complaint as counsel forplaintiff Milagros Yap Abaqueta, averring, inter alia, that:

Plaintiff and defendant Gamaliel Abaqueta are the conjugalownersof those certain parcels of land, more particularly asfollows . . .

The "parcels of land" referred to as conjugal property of complainantand Milagros Yap-Abaqueta are the very same parcels of land inSpecial Proceedings No. 3971-R which respondent, as lawyer ofcomplainant, alleged as the "sole and exclusive properties" ofcomplainant. In short, respondent lawyer made allegations in CivilCase No. CEB-11453 which were contrary to and in direct conflict withhis averments as counsel for complainant in Special Proceedings No.3971-R.

Complainant further averred that respondent admitted he was neverauthorized by the former to appear as counsel for complainant's ex-

wife in Civil Case No. CEB-11453; that respondent failed to indicate inthe Complaint the true and correct address of herein complainant,which respondent knew as far back as August 2, 1990, when he wrotea letter to the complainant at the said address.7Consequently,complainant failed to receive summons and was declared in default inCivil Case No. CEB-11453. While the order of default was eventuallyset aside, complainant incurred expenses to travel to the Philippines,which were conservatively estimated at $10,000.00. He argues thatrespondent's conduct constitute professional misconduct andmalpractice as well as trifling with court processes.

In his defense, respondent claims in his Answer

8

that he always actedin good faith in his professional relationship with complainant in spiteof the fact that they have not personally met. He based the matters hewrote in the Complaint on information and documents supplied byMrs. Charito Y. Baclig, complainant's sister-in-law and attorney-in-fact, indicating that he was sole and exclusive owner of the properties.This was sometime in November 1983. No affidavit of adjudicationwas ever furnished respondent by complainant and this wasapparently suppressed because it would show that the propertiesformed part of the estate.

Eight years later, in November 1991, long after Special ProceedingsNo. 3971-R was settled and the attorney-client relationship between

complainant and respondent was terminated, Mrs. Milagros Abaquetathrough Mrs. Baclig, engaged his services to file Civil Case No. CEB-11453. Mrs. Baclig presented to him a deed of absolute sale datedJuly 7, 1975,9showing that the properties subject hereof were notcomplainant's exclusive property but his conjugal property with hiswife, the same having been acquired during the subsistence of theirmarriage. Thus, in all good faith, respondent alleged in the complaintthat said properties were conjugal assets of the spouses.

Respondent further pointed out that his law firm handles on theaverage eighty new court cases annually and personally interviewsfour or five clients, prospective clients and/or witnesses daily exceptSaturdays and Sundays. It regularly closes to the public at 7:00 p.m.,but work continues sometimes until 8:30 p.m. This has been going onfor the last twenty-five years out of respondent's thirty-three years ofprivate practice. The absence of personal contact with complainantand the lapse of eight years resulted in the oversight of therespondent's memory that complainant was a former client.Furthermore, the caption of the Special Proceeding was not in thename of complainant but was entitled, "In the Matter of the IntestateEstate of Bonifacia Payahay Abaqueta."

Respondent expressed regret over the oversight and averred thatimmediately after discovering that the formerly representedcomplainant in Special Proceeding No. 3971-R, he filed a motion towithdraw as counsel for plaintiff, which was granted by the trialcourt.10He denied any malice in his acts and alleged that it is not inhis character to do malice or falsehood particularly in the exercise ofhis profession.

In his Comments/Observations on Respondent'sAnswer,11complainant averred that respondent's conduct was gearedtowards insuring a court victory for Milagros Yap in Civil Case No.CEB-11453, wherein he deliberately stated that complainant'saddress was 9203 Riverside Lodge Drive, Houston, Texas 77083,U.S.A., when he knew fully well that complainant's true and correctaddress was c/o V.A. Hospital, 7th Street & Italian School Road,Phoenix, Arizona, 85013, U.S.A. By falsely stating and concealing histrue and correct address, respondent eventually succeeded inobtaining a default judgment in favor of his client.


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During the pendency of these proceedings before the IBP, it appearedthat respondent's son got married to the daughter of IBP NationalPresident Arthur D. Lim. Thus, Atty. Lim inhibited himself fromparticipating in the resolution of the case.12Subsequently, aResolution was issued requiring the IBP to elevate the entire recordsof the case within thirty (30) days from notice.13

The main issue to be resolved in the case at bar is whether or notrespondent violated Rule 15.03 of the Code of ProfessionalResponsibility. The investigating Commissioner found that respondentclearly violated the prohibition against representing conflictinginterests and recommended that he be suspended from the practiceof law for a period of three (3) months.

We find the recommendation well-taken.

Rule 15.03 of the Code of Professional Responsibility explicitlyprovides that

RULE 15.03. A lawyer shall not represent conflictinginterests except by written consent of all concerned given aftera full disclosure of the facts.

There is a conflict of interest if there is an inconsistency in theinterests of two or more opposing parties. The test is whether or not inbehalf of one client, it is the lawyer's duty to fight for an issue or claimbut it is his duty to oppose it for the other client.14In short, if he arguesfor one client, this argument will be opposed by him when he arguesfor the other client.15

There is a representation of conflicting interests if the acceptance ofthe new retainer will require the attorney to do anything which willinjuriously affect his first client in any matter in which he representshim and also whether he will be called upon in his new relation, to useagainst his first client any knowledge acquired through theirconnection.16

As pointed out by the investigating commissioner, respondent doesnot deny that he represented complainant in Special Proceedings No.3971-R. He also does not deny that he is the lawyer of Milagros Yap

Abaqueta in Civil Case No. CEB-11453, filed against complainant and

involving the same properties which were litigated in SpecialProceedings No. 3971-R. Respondent also admitted that he did notsecure the consent of complainant before he agreed to act asMilagros Yap Abaqueta's lawyer in Civil Case No. CEB-11453.

The reasons proffered by respondent are hardly persuasive to excusehis clear representation of conflicting interests in this case. First, theinvestigating commissioner observed that the name "Gamaliel

Abaqueta" is not a common name. Once heard, it will surely ring abell in one's mind if he came across the name again.

In this case, respondent actively prosecuted the cause of complainantin Special Proceedings No. 3971-R, such that it would be impossiblefor respondent not to have recalled his name.

Second, assuming arguendothat respondent's memory was indeedfaulty, still it is incredible that he could not recall that complainant washis client, considering that Mrs. Charito Baclig, who was complainant's

attorney-in-fact and the go-between of complainant and respondent inSpecial Proceedings No. 3971-R, was the same person who broughtMilagros Yap Abaqueta to him. Even a person of average intelligencewould have made the connection between Mrs. Baclig andcomplainant under such circumstances.

Lastly, the fact that the subject matter of Civil Case No. CEB-11453and Special Proceedings No. 3971-R are thesame propertiescouldnot have escaped the attention of respondent. With such anabundance of circumstances to aid respondent's memory, it simplystrains credulity for him to have conveniently forgotten his past

engagement as complainant's lawyer. What rather appears, given theprevailing facts of this case, is that he chose to ignore them on theassumption that the long period of time spanning his past and presentengagement would effectively blur the memories of the parties to sucha discrepancy.

It is axiomatic that no lawyer is obliged to act either as adviser oradvocate for every person who may wish to become his client. He hasthe right to decline such employment,17subject, however, to Canon 14of the Code of Professional Responsibility.18Once he agrees to takeup the cause of the client, the lawyer owes fidelity to such cause and

must always be mindful of the trust and confidence reposed inhim.19He must serve the client with competence and diligence20and


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champion the latter's cause with wholehearted fidelity, care anddevotion.21

A lawyer May not, without being guilty of professional misconduct, actas counsel for a person whose interest conflicts with that of his formerclient22The reason for the prohibition is found in the relation ofattorney and client which is one of trust and confidence of the highestdegree.23Indeed, as we stated in Sibulo v. Cabrera,24"The relation of

attorney and client is based on trust, so that double dealing, whichcould sometimes lead to treachery, should be avoided."25

Credence cannot, however, be given to the charge that respondentfraudulently and maliciously falsified the true and correct address ofthe complainant notwithstanding respondent's knowledge thereof.Lawyers normally do not have knowledge of the personalcircumstances of a party in a case and usually rely on the informationsupplied by their clients. The fact that respondent sent a letter tocomplainant at the latter's correct address26sixteen months before thefiling of Civil Case No. CEB-11453 does not by itself prove malice onthe part of respondent. A new address was furnished by Milagros Yap

Abaqueta days before the complaint was filed. Respondent had noreason to doubt the correctness of the address of the complainantgiven to him by Milagros Yap Abaqueta considering that she wascomplainant's wife.

WHEREFORE, Atty. Bernardito A. Florido is SUSPENDEDfrom thepractice of law for Three (3) months. He is further ADMONISHEDtoexercise greater care and diligence in the performance of his dutiestowards his clients and the court. He is warned that a repetition of the

same or similar offense will be dealt with more severely.

SO ORDERED.


Baguio City

FIRST DIVISION

A.C. No. 4354 April 22, 2002

LOLITA ARTEZUELA, complainant,vs.ATTY. RICARTE B. MADERAZO, respondent.

PUNO, J.:

For his failure to meet the exacting standards of professional ethics,the Board of Governors of the Integrated Bar of the Philippines (IBP)in its Resolution of May 2, 2000 recommended the suspension fromthe practice of law of respondent Atty. Ricarte B. Maderazo for theperiod of six (6) months, with a stern warning that repetition of thesame act will be dealt with more severely. Respondent allegedlyrepresented conflicting interests in violation of Canon 6 of the Code ofProfessional Ethics, and Canon 15 and Rule 15.03 of the Code ofProfessional Responsibility.1

By way of a Motion for Reconsideration,2respondent now comesbefore this Court to challenge the basis of the IBP's resolution, andprays for its reversal.

The factual antecedents of the case are as follows: On or about 3:00in the early morning of December 24, 1992, Allan Echavia had avehicular accident at Caduman St., corner H. Abellana St., MandaueCity. At the time of the accident, Echavia was driving a Ford Telstarcar owned by a Japanese national named Hirometsi Kiyami, but wasregistered in the name of his brother-in-law, Jun Anthony Villapez.The car rammed into a small carinderiaowned by complainant Lolita

Artezuela.3

The destruction of the complainant's carinderiacaused the cessationof the operation of her small business, resulting to her financialdislocation. She incurred debts from her relatives and due to financialconstraints, stopped sending her two children to college.4

Complainant engaged the services of the respondent in filing adamage suit against Echavia, Villapez and one BernardoSia.5Docketed as Civil Case No. 13666, the case was assigned toBranch 14 of the Regional Trial Court of Cebu. An AmendedComplaint was thereafter filed, impleading Echavia, Kiyami andVillapez, and dropping Sia as a party-defendant.6For his services,

complainant paid the respondent the amount of Ten Thousand Pesos(P10,000.00) as attorney's fees and Two Thousand Pesos
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(P2,000.00) as filing fee.7However, the case was dismissed on March22, 1994, allegedly upon the instance of the complainant and herhusband.8

Because of the dismissal of Civil Case No. 13666, complainant filed acivil case for damages against the respondent. It was docketed asCEB-18552 and assigned to Branch 57, Regional Trial Court of CebuCity. The case was dismissed on June 12, 2001.9

On November 24, 1994, Artezuela filed before this Court a verifiedcomplaint for disbarment against the respondent. She alleged thatrespondent grossly neglected his duties as a lawyer and failed torepresent her interests with zeal and enthusiasm. According to her,when Civil Case No. 13666 was scheduled for pre-trial conference on

August 20, 1993, respondent asked for its postponement although allthe parties were present. Notwithstanding complainant's persistentand repeated follow-up, respondent did not do anything to keep thecase moving. He withdrew as counsel without obtaining complainant'sconsent.10

Complainant also claimed that respondent engaged in activitiesinimical to her interests. While acting as her counsel, respondentprepared Echavia's Answer to the Amended Complaint. The saiddocument was even printed in respondent's office. Complainantfurther averred that it was respondent who sought the dismissal of thecase, misleading the trial court into thinking that the dismissal waswith her consent.11

Respondent denied the complainant's allegations and averred that he

conscientiously did his part as the complainant's lawyer in Civil CaseNo. 13666. He withdrew as counsel because the complainant wasuncooperative and refused to confer with him. He also gave severalnotices to the complainant and made known his intention before hefiled his Manifestation to withdraw as counsel. Because of the severedrelationship, the lower court, after holding a conference, decided togrant respondent's manifestation and advised the complainant tosecure the services of a new lawyer. Complainant, however, refusedand instead, sought the dismissal of the case.12

Respondent alleged that he sought the postponement of the Pre-Trial

Conference scheduled on August 20, 1993 so that he could file theAmended Complaint. He admitted that Echavia's Answer to the

Amended Complaint was printed in his office but denied havingprepared the document and having acted as counsel of Echavia. Heclaimed that complainant requested him to prepare Echavia's Answerbut he declined. Echavia, however, went back to his office and askedrespondent's secretary to print the document. Respondent intimatedthat the complainant and Echavia have fabricated the accusationsagainst him to compel him to pay the amount of P500,000.00.13

This Court referred the complaint to the Integrated Bar of thePhilippines (IBP). The IBP-Visayas Regional Committee on BarDiscipline formed an Investigating Committee to hear the disbarmentcomplaint.

On October 6, 1999, Commissioner Gabriel T. Ingles issued a Reportfinding the respondent guilty of representing conflicting interests, inviolation of Canon 15 and Rule 15.03 of the Code of ProfessionalResponsibility, as well as, of Canon 6 of the Code of ProfessionalEthics. He recommended that the respondent be suspended from thepractice of law for a period of one (1) year.14Commissioner Ingles didnot rule on the other issues.

As aforesaid, the Board of Governors of the Integrated Bar of thePhilippines upheld the findings of the Committee with modificationonly as to the penalty.

Seeking reconsideration of the IBP's resolution, respondent contendsthat the Investigating Committee did not conduct trial; hence, he wasnot able to confront and examine the witnesses against him. Heargues that the Investigating Committee's finding that he represented

Echavia is contrary to court records and the complainant's owntestimony in CEB-18552. He also casts doubt on the credibility of theInvestigating Committee to render just and fair recommendationsconsidering that the Investigating Commissioner and the respondentare counsel-adversaries in another case, Civil Case No. R-33277.Finally, he questions the imposition of a six-month suspension, whichhe claims to be harsh considering that his private practice is his onlysource of income.15

After carefully examining the records, as well as the applicable lawsand jurisprudence on the matter, this Court is inclined to uphold the

IBP's resolution.1wphi1.nt
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In administrative cases, the requirement of notice and hearing doesnot connote full adversarial proceedings, as "actual adversarialproceedings become necessary only for clarification or when there isa need to propound searching questions to witnesses who give vaguetestimonies."16Due process is fulfilled when the parties were givenreasonable opportunity to be heard and to submit evidence in supportof their arguments.17

In the case at bar, records show that respondent repeatedly soughtthe postponement of the hearings, prompting the InvestigatingCommissioner to receive complainant's evidence ex parte and to setthe case for resolution after the parties have submitted theirrespective memorandum. Hence:

"The records show that this is already the third postponementfiled by respondent namely December 12, 1996 (sic), January3, 1996 and April 1, 1996.

The Commission for the last time, will cancel today's hearingand can no longer tolerate any further postponement. Notifyrespondent by telegram for the hearing for (sic) April 22, 1996at 2:00 P.M. Said hearing is intransferable in character.

In the meantime, complainant affirmed her complaint andlikewise her witness, Allan Echavia, also affirmed the contentsof his affidavit and further stated that he had executed thesame and understood the contents thereof."18

It is by his own negligence that the respondent was deemed to have

waived his right to cross-examine the complainant and her witness.He cannot belatedly ask this Court to grant new trial after he hassquandered his opportunity to exercise his right.

Respondent's contention that the finding of the InvestigatingCommittee was contrary to the records and the complainant's ownadmission in CEB-18552 is without merit. It is true that Atty. Aviolawas Echavia's counsel-of-record in Civil Case No. 13666 asevidenced by the certification from the clerk of court,19and asadmitted by the complainant in CEB-18552, viz:

"ATTY. MADERAZO: (To witness- ON CROSS)

Q: Madam witness, you mentioned that the defendant inthis case was the counsel of Allan Echavia as early as August20, 1993, wherein you learned for the first time of this factwhen you say he is counsel of Allan Echavia. (sic)You meanhe is the counsel of record of Allan Echavia in the Civil Casebefore Judge Dacudao? Is that what you mean?

A: What I learned was that Atty. Alviola was the counsel of

Allan Echavia in the case before Judge Dacudao but I heardAtty. Maderazo telling Allan Echavia not to admit that Atty.Maderazo is appearing for me because he will be the one tocoordinate with Allan's case.

Q: So it is clear that the defendant in this case is not thecounsel of record of Allan Echavia. It was Atty. Alviola statedby you now?

A: Atty. Maderazo was not Allan Echavia's counsel but itwas Atty. Alviola who was the counsel of record of AllanEchavia."20

Nevertheless, the issue in this case is not whether the respondentalso acted as the counsel-of-record of Echavia. Rather, it is whetheror not he had a direct hand in the preparation of Echavia's Answer tothe Amended Complaint.

To be guilty of representing conflicting interests, a counsel-of-recordof one party need not also be counsel-of-record of the adverse party.He does not have to publicly hold himself as the counsel of the

adverse party, nor make his efforts to advance the adverse party'sconflicting interests of record--- although these circumstances are themost obvious and satisfactory proof of the charge. It is enough thatthe counsel of one party had a hand in the preparation of the pleadingof the other party, claiming adverse and conflicting interests with thatof his original client. To require that he also be counsel-of-record ofthe adverse party would punish only the most obvious form of deceitand reward, with impunity, the highest form of disloyalty.

Canon 6 of the Code of Professional Ethics states:
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"It is the duty of a lawyer at the time of the retainer to discloseto the client the circumstances of his relations to the partiesand any interest in or in connection with the controversy, whichmight influence the client in the selection of the counsel.

"It is unprofessional to represent conflicting interests, exceptby express consent of all concerned given after a fulldisclosure of the facts. Within the meaning of this Canon, a

lawyer represents conflicting interests when in behalf ofone of the clients, it is his duty to contend for that whichduty to another client requires him to oppose." (emphasissupplied)

An attorney owes his client undivided allegiance. Because of thehighly fiduciary nature of the attorney-client relationship, sound publicpolicy dictates that a lawyer be prohibited from representingconflicting interests or discharging inconsistent duties. He may not,without being guilty of professional misconduct, act as counsel for aperson whose interest conflicts with that of his present or formerclient. Indeed, good faith and honest intention on the part of the erringlawyer does not make this rule inoperative.21The lawyer is an officerof the court and his actions are governed by the uncompromisingrules of professional ethics. Thus:

"The relations of attorney and client is founded on principles ofpublic policy, on good taste. The question is not necessarilyone of the rights of the parties, but as to whether the attorneyhas adhered to proper professional standard. With thesethoughts in mind, it behooves attorneys, like Ceasar's wife, notonly to keep inviolate the client's confidence, but also to avoidthe appearance of treachery and double-dealing. Only thuscan litigants be encouraged to entrust their secrets to theirattorneys which is of paramount importance in theadministration of justice."22

The professional obligation of the lawyer to give his undividedattention and zeal for his client's cause is likewise demanded in theCode of Professional Responsibility. Inherently disadvantageous tohis client's cause, representation by the lawyer of conflicting interestsrequires disclosure of all facts and consent of all the parties involved.

Thus:

"CANON 15- All lawyers shall observe candor, fairness andloyalty in all his dealings and transactions with his clients.

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Rule 15.03- A lawyer shall not represent conflicting interestsexcept by written consent of all concerned given after a fulldisclosure of the facts."

While the Resolution of the IBP is p

ethics whole case canon 14 onwards

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