1. Yared vs ILarde

ESTRELLA TIONGCO YARED (now deceased) substituted by one of her heirs, CARMEN MATILDE M. TIONGCO petitioner, vs. HON. RICARDO M. ILARDE, Presiding Judge, Regional Trial Court of Iloilo, Br. 26, JOSE B. TIONGCO and ANTONIO G. DORONILA, JR., respondents.

D E C I S I O N

DE LEON, JR., J.:

Before us is a petition for certiorari under Rule 65 assailing the Order dated March 17, 1994[1] of the Regional Trial Court of Iloilo City, Branch 26, which reinstated an earlier order cancelling the notice of lis pendens ( a pending suit; jurisdiction in which courts acquire over property in suit pending action and until final judgdment) annotated on the back of Transfer Certificates of Title Nos. T-92383 and T-5050, of the Registry of Deeds of Iloilo City covering Lots 3244 and 3246, respectively, located in Iloilo City.

The relevant facts are summarized as follows:

On October 17, 1990, petitioner Estrella Tiongco Yared filed an amended complaint[2] before the Regional Trial Court, 6th Judicial Region, Branch XXVI, against private respondents Jose B. Tiongco and Antonio Doronila, Jr.  Docketed as Civil Case No. 19408, the action was one for "annulment of affidavit of adjudication, sales, transfer certificates of title, reconveyance and damages.”

In brief, the amended complaint alleged that respondent Tiongco, on the basis of an affidavit of adjudication dated April 17, 1974 alleging that he is the sole surviving heir of the previous owner, Maria Luis de Tiongco, succeeded in having the subject properties registered in his name, to the prejudice of the other surviving heir of the previous owner, petitioner among them.  Petitioner and respondent Tiongco's father were siblings, and both were among several heirs of Maria Luis de Tiongco.  The aforesaid affidavit of adjudication was registered with the Office of the Register of Deeds of Iloilo City on May 10, 1974.  Petitioner prayed that the properties be reconveyed to the original registered owners, subject to partition among the lawful heirs, and that respondent Tiongco be ordered to pay damages and costs.

To protect her interest in the properties during the pendency of the case, petitioner caused to be annotated on Transfer Certificate of Title Nos. T-52547, T-4666 and T-52546,[3] which covered Lot Nos. 3244, 3246 and 1404, respectively.  TCT Nos. T-92383 and T-5050 were derived or transferred from TCT Nos. T-52547 and T-4666 respectively and registered in the name of Tiongco.

After respondent Jose B. Tiongco filed his answer, trial ensued during which, on three separate occasions, he filed motions seeking the cancellation of the notices of lis pendens.[4] All these motions were denied.[5]

On December 14, 1993, the respondent judge issued a Decision[6] dismissing petitioner's complaint and private respondent's counterclaim.  The trial court found that petitioner's cause of action had already prescribed.

Petitioner filed a notice of appeal[7]on December 17, 1993.  As before, respondent Tiongco filed a motion for cancellation of the notices of lis pendens[8] dated December 21, 1993; this was denied in an Order dated January 10, 1994.[9] He filed a "Second Motion for Reconsideration"[10] which was also denied in an Order dated January 26, 1994.[11] Displaying remarkable tenacity, respondent Tiongco filed a "Third Motion for Reconsideration."[12] This time, however, his arguments proved persuasive. In an Order[13]dated February 14, 1994, the respondent judge ruled to wit:

In the light of the ruling laid down in Magdalena Homeowners Association Inc. vs. Court of Appeals, 184 SCRA 325; 330 (1990), cited in Vda. De Kilayko vs. Tengco, 207 SCRA 600; 614-615 (1992), that "the continuance or removal of a notice of lis pendens is not contingent on the existence of a final judgment in the action and ordinarily has no effect on the merits thereof” so that the notices of lis pendens in the case at bar may, on proper grounds, be cancelled notwithstanding the non-finality of the judgment of this Court brought about by plaintiff's appeal and considering the finding of this Court that plaintiff's action had already prescribed, which finding is based on the admitted fact that the questioned deed of adjudication was registered way back of May 10, 1974 so that the possibility of this finding being reversed is quite remote if not totally nil and, considering further, the circumstances obtaining in this case, among which are: (1) that the criminal complaint for perjury filed by plaintiff against defendant Jose B. Tiongco based on the same deed of adjudication had already been dismissed with finality also on the ground of prescription; (2) that the occupants of the property who were alleged as formerly paying rentals to herein plaintiff, Estrella Tiongco Yared, had already recognized defendant's ownership and had long stopped paying rentals to plaintiff without the latter intervening, much less, contesting the decision in Civil Case No. 15421 where defendant Jose B. Tiongco was declared with finality as the true and lawful owner of Lots Nos. 3244 and 3246; and (3) that, if at all, the present claim of plaintiff covers but a very small portion of subject lots consisting only a total of about 64 square meters hence, it would be unfair to the defendant who has torrens title covering the parcels of lands solely in his name to have the same subjected to the harsh effect of such a encumbrance; the Court, in view of all the foregoing considerations and upon further review of the records, hereby reconsiders its stand on the subject matter of lis pendens and so holds that the continued annotation of subject notices of lis pendens is intended to molest the defendant, Jose B. Tiongco, and is not necessary to protect the rights of plaintiff as such rights, if any, are now foreclosed by prescription.

This time, it was petitioner's turn to seek reconsideration. [14] On March 4, 1994, the public respondent issued an Order[15] reversing himself on the ground that (1) it had already lost jurisdiction over the case due to the expiration of the last day to appeal of both parties, (2) the notice of appeal has been approved, and (3) the records had been ordered elevated to the Court of Appeals.

Private respondent Tiongco filed another motion for reconsideration[16] against the Order dated March 4, 1994.  On March 17, 1994, the respondent judge issued the order, subject of this petition, which is quoted hereunder:

Considering that under Section 9, Rule 41 of the Rules of Court, although appeal had already been perfected, the Court, prior to the transmittal of the records to the appellate court, may issue orders for the protection and preservation of the rights of the parties which do not involve any

matter litigated by the appeal and considering that in the case at bar, lis pendens is not a matter litigated in the appeal and the records have not as yet been transmitted to the appellate court so that this Court still has jurisdiction to issue the Order of February 14, 1994 cancelling the notices of lis pendens annotated on TCT No. T-92383 covering Lot 3244 and on TCT No. T-5050 covering lot 3246 and considering further, that the said Order does not direct cancellation of lis pendens annotated on TCT No. T-89483 covering Lot no. 1404 which contains a total area of 1,587 square meters where the area of 64 square meters claimed by plaintiff can very well be taken; as prayed for by the defendant Jose B. Tiongco, the Order of March 4, 1994 is hereby reconsidered and set aside and the Order of February 14, 1994 is hereby reconsidered and set aside and the Order of February 14, 1994 cancelling the notices of lis pendens on TCT No. T-92383 covering lot 3244 and on TCT No. T-5050 covering lot 3246 is hereby reinstated.

On April 5, 1994, the Register of Deeds cancelled the annotation of notices of lis pendens.[17]

Feeling that a motion for reconsideration would be fruitless, petitioner filed the instant special civil action for certiorari, alleging that:

THE HONORABLE RESPONDENT JUDGE ACTED CAPRICIOUSLY, WHIMSICALLY AND WITH GRAVE ABUSE OF DISCRETION IN ORDERING THE CANCELLATION OF THE NOTICES OF LIS PENDENS ANNOTATED AT THE BACK OF THE CERTIFICATES OF TITLE THAT ARE THE SUBJECT OF THE CIVIL CASE NO. 19408, AS THESE ARE AMONG THE DOCUMENTS THAT ARE SOUGHT TO BE DECLARED NULL AND VOID BY THE HEREIN PETITIONER.

The doctrine of lis pendens is founded upon reasons of public policy and necessity, the purpose of which is to make known to the whole world that properties in litigation are still within the power of the court until the litigation is terminated and to prevent the defeat of the judgment or decree by subsequent alienation.[18] The notice of lis pendens is an announcement to the whole world that a particular real property is in litigation, and serves as a warning that one who acquires an interest over said property does so at his own risk, or that he gambles on the result of the litigation over said property.[19]

Rule 13, Section 14 of the 1997 Rules of Civil Procedure[20] and Section 76 of Presidential Decree No. 1529,[21] otherwise known as the Property Registration Decree provide the statutory bases for notice of lis pendens.  From these provisions, it is clear that such a notice is proper only in:

a)  An action to recover possession of real estate;

b)  An action to quiet title thereto;

c)  An action to remove clouds thereon;

d)  An action for partition; and

e)  Any other proceedings of any kind in Court directly affecting title to the land or the use or occupation thereof or the building thereon.[22]

Thus, all petitioner has to do is to assert a claim of possession or title over the subject property to put the property under the coverage of the rule.[23] It is not necessary for her to prove ownership or interest over the property sought to be affected by lis pendens.

Whether as a matter, of procedure[24] or substance,[25] the rule is that a notice of lis pendens may be cancelled only on two (2) grounds, namely (1) if the annotation was for the purpose of molesting the title of the adverse party, or (2) when the annotation is not necessary to protect the title of the party who caused it to be recorded.[26]

The petition should be dismissed, there being a clear violation of the doctrine of judicial hierarchy that we have taken pains to emphasize in past jurisprudence.

The Court feels the need to reaffirm that policy at this time, and to enjoin strict adherence thereto in the light of what it perceives to be a growing tendency on the part of litigants and lawyers to have their applications for the so-called extraordinary writs, and sometimes even their appeals, passed upon and adjudicated directly and, immediately by the highest tribunal of the land.  The proceeding at bar is a case in point.  The application for the writ of certiorari sought against a City Court was brought directly to this Court although there is no discernible special and important reason for not presenting it to the Regional Trial Court.

The Court therefore closes this decision with the declaration, for the information and guidance of all concerned, that it will not only continue to enforce the policy, but will require a more strict observance thereof.  (emphasis supplied)

Notwithstanding these pronouncements, parties persisted in disregarding the judicial hierarchy.  As we noted in Santiago v. Vasquez,[29]

One final observation.  We discern in the proceedings in this case a propensity on the part of petitioner, and, for that matter, the same may be said of a number of litigants who initiate recourses before us, to disregard the hierarchy of courts in our judicial system by seeking relief directly from this Court despite the fact that the same is available in the lower courts in the exercise of their original or concurrent jurisdiction, or is even mandated by law to be sought therein.  This practice must be stopped, not only because of the imposition upon the precious time of this Court but also because of the inevitable and resultant delay, intended or otherwise, in the adjudication of the case which often has to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues since this Court is not a trier of facts.  We, therefore, reiterate the judicial policy that this Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstance justify availment of a remedy within and calling for the exercise of our primary jurisdiction.

This policy found further application in People v. Court of Appeals,[30] Aleria v. Velez, [31] and Tano v. Socrates.[32] Only the presence of exceptional and compelling reasons justified a disregard of the rule.[33]

Petitioner has failed to advance a satisfactory explanation as to her failure to comply with or non-observance of the principle of judicial hierarchy.  There is no reason why the instant petition could not have been brought before the Court of Appeals, considering all the more that the

appeal of the main case was already before it.  In Magdalena, Homeowners Association, Inc. v. Court of Appeals[34] we ruled, to wit:

The notice of lis pendens-i.e., that real property is involved in an action-is ordinarily recorded without the intervention of the court where the action is pending.  The notice is but an incident in an action, an extrajudicial one, to be sure.  It does not affect the merits thereof.  It is intended merely to constructively advise, or warn, all people who deal with the property that they so deal with it at their own risk, and whatever rights they may acquire in the property in any voluntary transaction are subject to the results of the action, and may well be inferior and subordinate to those which may be finally determined and laid down therein.  The cancellation of such a precautionary notice is therefore also a mere incident in the action, and may be ordered by the Court having jurisdiction of it at any given time.  And its continuance or removal-like the continuance or removal or removal of a preliminary attachment of injunction-is not contingent on the existence of a final judgment in the action, and ordinarily has no effect on the merits thereof.

In the case at bar, the case had properly come within the appellate jurisdiction of the Court of Appeals in virtue of the perfection of the plaintiff's appeal.  It therefore had power to deal with and resolve any incident in connection with the action subject of the appeal, even before final judgment.  The rule that no questions may be raised for the first time on appeal have reference only to those affecting the merits of the action, and not to mere incidents thereof, e.g., cancellation of notices of lis pendens, or, to repeat, the grant or dissolution of provisional remedies.  [emphasis supplied]

Had petitioner brought the instant petition before the Court of Appeals, the same could, and would, have been consolidated with the appeal, thereby bringing under the competence of the said court all matters relative to the action, including the incidents thereof.

Rescinding from the foregoing discussion, the disposition of the instant case will be incomplete without a reference to the improper and unethical language employed by respondent Jose B. Tiongco, who is also counsel for private respondents, in his pleadings and motions filed both before us and the court a quo.  It is his belief that counsel for petitioner, Atty. Marciana Deguma, "a rambunctious wrestler-type female of 52 who does not wear a dress which is not red, and who stampedes into the courtroom like a mad fury and who speaks slang English to conceal her faulty grammar” is impelled by less than less than noble reasons in serving as counsel for petitioner.  Her ulterior motive? "[To please and tenderize and sweeten towards her own self the readily available Carmelo M. Tiongco," a retired police major described by respondent Tiongco as Atty. Deguma's "niño bonito,"[37] an unmarried mestizo with curly hair who lives with plaintiff for being houseless”[38] who rents a place on the subject property sought to be recovered by petitioner.  Atty. Deguma, apparently are unmarried maiden of a certain age, is variously described by respondent Tiongco as "a love-crazed female Apache [who] is now ready to skin defendant alive for not being a bastard," [39] and a "horned spinster and man-hungry virago and female bull of an Amazon who would stop at nothing to molest, harrass (sic) and injure defendant - if only to please and attract police-major Carmelo Tiongco Junior - the deeply desired object of her unreciprocated affections - who happens not to miss every chance to laugh at her behind her back."[40] He claims that Atty. Deguma, a lawyer with the Public Attorney's Office, is engaged in a game of one-upmanship with a fellow

employee, in that "she happens to be ambitious enough to secretly (that what she thought) plot to put one over her office-mate who simply netted a corporal (if not a private) by aiming at no lest than an IMDC major - hoping to catch him by sheer brass and audacity.”[41] In so doing, Atty. Deguma is using the PAO as a "marriage bureau for her own benefit. [42] Respondent Tiongco predicts that nothing good will come out of opposing counsel's scheme since, quoting Voltaire, "outside of virtue, ther's (sic) no happiness."[43]

Respondent Tiongco has achieved a remarkable feat of character assassination.  His verbal darts, albeit entertaining in a fleeting way, are cast with little regard for truth.   However, he does nothing more than to obscure the issues, and his reliance on the fool's gold of gossip betrays only a shocking absence of discernment.  To this end, it will be wise to give him an object lesson in the elementary rules of courtesy by which we expect members of the bar to comport themselves.  These provisions of the Code of Professional Responsibility are pertinent:

CANON 8-A LAWYER SHALL CONDUCT HIMSELF WITH COURTESY, FAIRNESS AND CANDOR TOWARD HIS PROFESSIONAL COLLEAGUES, AND SHALL AVOID HARASSING TACTICS AGAINST OPPOSING COUNSEL.

Rule 8.01-A lawyer shall not, in his professional dealings, use languages which is abusive, offensive or otherwise improper.

xxx  xxx                              xxx                              xxx

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

In Romero v. Valle,[44] we stated that a lawyer's actuations, "[a]lthough allowed some latitude of remarks or comment in the furtherance of the cause he upholds, his arguments, both written or oral, should be gracious to both court and opposing counsel and be of such words as may be properly addressed by one gentleman to another." Otherwise, his use of intemperate language invites the disciplinary authority of the court.[45] We are aghast at the facility with which respondent Atty. Jose B. Tiongco concocts accusations against the opposing party and her counsel, although it is of public record that in Tiongco v. Deguma, et a1.,[46] we dismissed as totally unfounded his charge of fraudulent conspiracy and public scandal against petitioner, Major Tiongco, Atty. Deguma and even the latter's superior at the Public Attorney's Office, Atty. Napoleon G. Pagtanac.  His lexicon of insults, though entertaining, do not find a ready audience in us, and he should be, as he is hereby, warned accordingly:  Homines qui gestant, quiqui auscultant crimina, si meo arbitratu liceat, omnis pendeat, gestores linguis, auditores auribus.[47]

WHEREFORE, the petition for certiorari is hereby DISMISSED, without pronouncement as to costs.

SO ORDERED.

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

2. BAUTISTA VS GONZALES

A.M. No. 1625 February 12, 1990

ANGEL L. BAUTISTA, complainant, vs.ATTY. RAMON A. GONZALES, respondent.

R E S O L U T I O N

PER CURIAM:

In a verified complaint filed by Angel L. Bautista on May 19, 1976, respondent Ramon A. Gonzales was charged with malpractice, deceit, gross misconduct and violation of lawyer's oath. Required by this Court to answer the charges against him, respondent filed on June 19, 1976 a motion for a bill of particulars asking this Court to order complainant to amend his complaint by making his charges more definite. In a resolution dated June 28, 1976, the Court granted respondent's motion and required complainant to file an amended complaint. On July 15, 1976, complainant submitted an amended complaint for disbarment, alleging that respondent committed the following acts

1. Accepting a case wherein he agreed with his clients, namely, Alfaro Fortunado, Nestor Fortunado and Editha Fortunado [hereinafter referred to as the Fortunados] to pay all expenses, including court fees, for a contingent fee of fifty percent (50%) of the value of the property in litigation.

2. Acting as counsel for the Fortunados in Civil Case No. Q-15143, wherein Eusebio Lopez, Jr. is one of the defendants and, without said case being terminated, acting as counsel for Eusebio Lopez, Jr. in Civil Case No. Q-15490;

3. Transferring to himself one-half of the properties of the Fortunados, which properties are the subject of the litigation in Civil Case No. Q-15143, while the case was still pending;

4. Inducing complainant, who was his former client, to enter into a contract with him on August 30, 1971 for the development into a residential subdivision of the land involved in Civil Case No. Q-15143, covered by TCT No. T-1929, claiming that he acquired fifty percent (50%) interest thereof as attorney's fees from the Fortunados, while knowing full well that the said property was already sold at a public auction on June 30, 1971, by the Provincial Sheriff of Lanao del Norte and registered with the Register of Deeds of Iligan City;

5. Submitting to the Court of First Instance of Quezon City falsified documents purporting to be true copies of "Addendum to the Land Development Agreement dated August 30, 1971" and submitting the same document to the Fiscal's Office of Quezon City, in connection with the complaint for estafa filed by respondent against complainant designated as I.S. No. 7512936;

6. Committing acts of treachery and disloyalty to complainant who was his client;

7. Harassing the complainant by filing several complaints without legal basis before the Court of First Instance and the Fiscal's Office of Quezon City;

8. Deliberately misleading the Court of First Instance and the Fiscal's Office by making false assertion of facts in his pleadings;

9. Filing petitions "cleverly prepared (so) that while he does not intentionally tell a he, he does not tell the truth either."

Respondent filed an answer on September 29, 1976 and an amended answer on November 18, 1976, denying the accusations against him. Complainant filed a reply to respondent's answer on December 29, 1976 and on March 24, 1977 respondent filed a rejoinder.

In a resolution dated March 16, 1983, the Court referred the case to the Office of the Solicitor General for investigation, report and recommendation. In the investigation conducted by the Solicitor General, complainant presented himself as a witness and submitted Exhibits "A" to "PP", while respondent appeared both as witness and counsel and submitted Exhibits "1" to "11". The parties were required to submit their respective memoranda.

On May 16, 1988 respondent filed a motion to dismiss the complaint against him, claiming that the long delay in the resolution of the complaint against him constitutes a violation of his constitutional right to due process and speedy disposition of cases. Upon order of the Court, the Solicitor General filed a comment to the motion to dismiss on August 8, 1988, explaining that the delay in the investigation of the case was due to the numerous requests for postponement of scheduled hearings filed by both parties and the motions for extension of time to file their respective memoranda." [Comment of the Solicitor General, p. 2; Record, p. 365]. Respondent filed a reply to the Solicitor General's comment on October 26, 1988. In a resolution dated January 16, 1989 the Court required the Solicitor General to submit his report and recommendation within thirty (30) days from notice.

On April 11, 1989, the Solicitor General submitted his report with the recommendation that Atty. Ramon A. Gonzales be suspended for six (6) months. The Solicitor General found that respondent committed the following acts of misconduct:

a. transferring to himself one-half of the properties of his clients during the pendency of the case where the properties were involved;

b. concealing from complainant the fact that the property subject of their land development agreement had already been sold at a public auction prior to the execution of said agreement; and

c. misleading the court by submitting alleged true copies of a document where two signatories who had not signed the original (or even the xerox copy) were made to appear as having fixed their signatures [Report and Recommendation of the Solicitor General, pp. 17-18; Rollo, pp. 403-404].

Respondent then filed on April 14, 1989 a motion to refer the case to the Integrated Bar of the Philippines (IBP) for investigation and disposition pursuant to Rule 139-B of the Revised Rules of Court. Respondent manifested that he intends to submit more evidence before the IBP. Finally, on November 27, 1989, respondent filed a supplemental motion to refer this case to the IBP, containing additional arguments to bolster his contentions in his previous pleadings.

I.

Preliminarily, the Court will dispose of the procedural issue raised by respondent. It is respondent's contention that the preliminary investigation conducted by the Solicitor General was limited to the determination of whether or not there is sufficient ground to proceed with the case and that under Rule 139 the Solicitor General still has to file an administrative complaint against him. Respondent claims that the case should be referred to the IBP since Section 20 of Rule 139-B provides that:

This Rule shall take effect on June 1, 1988 and shall supersede the present Rule 139 entitled DISBARMENT OR SUSPENSION OF ATTORNEYS. All cases pending investigation by the Office of the Solicitor General shall be transferred to the Integrated Bar of the Philippines Board of Governors for investigation and disposition as provided in this Rule except those cases where the investigation has been substantially completed.

The above contention of respondent is untenable. In the first place, contrary to respondent's claim, reference to the IBP of complaints against lawyers is not mandatory upon the Court [Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707; Zaldivar v. Gonzales, G.R. No. 80578, October 7, 1988]. Reference of complaints to the IBP is not an exclusive procedure under the terms of Rule 139-B of the Revised Rules of Court [Ibid]. Under Sections 13 and 14 of Rule 139-B, the Supreme Court may conduct disciplinary proceedings without the intervention of the IBP by referring cases for investigation to the Solicitor General or to any officer of the Supreme Court or judge of a lower court. In such a case, the report and recommendation

of the investigating official shall be reviewed directly by the Supreme Court. The Court shall base its final action on the case on the report and recommendation submitted by the investigating official and the evidence presented by the parties during the investigation.

Secondly, there is no need to refer the case to the IBP since at the time of the effectivity of Rule 139-B [June 1, 1988] the investigation conducted by the Office of the Solicitor General had been substantially completed. Section 20 of Rule 139-B provides that only pending cases, the investigation of which has not been substantially completed by the Office of the Solicitor General, shall be transferred to the IBP. In this case the investigation by the Solicitor General was terminated even before the effectivity of Rule 139-B. Respondent himself admitted in his motion to dismiss that the Solicitor General terminated the investigation on November 26, 1986, the date when respondent submitted his reply memorandum [Motion to Dismiss, p. 1; Record, p. 353].

Thirdly, there is no need for further investigation since the Office of the Solicitor General already made a thorough and comprehensive investigation of the case. To refer the case to the IBP, as prayed for by the respondent, will result not only in duplication of the proceedings conducted by the Solicitor General but also to further delay in the disposition of the present case which has lasted for more than thirteen (13) years.

Respondent's assertion that he still has some evidence to present does not warrant the referral of the case to the IBP. Considering that in the investigation conducted by the Solicitor General respondent was given ample opportunity to present evidence, his failure to adduce additional evidence is entirely his own fault. There was therefore no denial of procedural due process. The record shows that respondent appeared as witness for himself and presented no less than eleven (11) documents to support his contentions. He was also allowed to cross-examine the complainant who appeared as a witness against him.

II.

The Court will now address the substantive issue of whether or not respondent committed the acts of misconduct alleged by complainant Bautista.

After a careful review of the record of the case and the report and recommendation of the Solicitor General, the Court finds that respondent committed acts of misconduct which warrant the exercise by this Court of its disciplinary power.

The record shows that respondent prepared a document entitled "Transfer of Rights" which was signed by the Fortunados on August 31, 1971. The document assigned to respondent one-half (1/2) of the properties of the Fortunados covered by TCT No. T-1929, with an area of 239.650 sq. mm., and TCT No. T-3041, with an area of 72.907 sq. m., for and in consideration of his legal services to the latter. At the time the document was executed, respondent knew that the abovementioned properties were the subject of a civil case [Civil Case No. Q-15143] pending before the Court of First Instance of Quezon City since he was acting as counsel for the Fortunados in said case [See Annex "B" of Original Complaint, p. 12; Rollo, p. 16]. In executing the document transferring one-half (1/2) of the subject properties to himself,

respondent violated the law expressly prohibiting a lawyer from acquiring his client's property or interest involved in any litigation in which he may take part by virtue of his profession [Article 1491, New Civil Code]. This Court has held that the purchase by a lawyer of his client's property or interest in litigation is a breach of professional ethics and constitutes malpractice [Hernandez v. Villanueva, 40 Phil. 774 (1920); Go Beltran v. Fernandez, 70 Phil. 248 (1940)].

However, respondent notes that Canon 10 of the old Canons of Professional Ethics, which states that "[t]he lawyer should not purchase any interests in the subject matter of the litigation which he is conducting," does not appear anymore in the new Code of Professional Responsibility. He therefore concludes that while a purchase by a lawyer of property in litigation is void under Art. 1491 of the Civil Code, such purchase is no longer a ground for disciplinary action under the new Code of Professional Responsibility.

This contention is without merit. The very first Canon of the new Code states that "a lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and legal process" (Emphasis supplied), Moreover, Rule 138, Sec. 3 of the Revised Rules of Court requires every lawyer to take an oath to 44 obey the laws [of the Republic of the Philippines] as well as the legal orders of the duly constituted authorities therein." And for any violation of this oath, a lawyer may be suspended or disbarred by the Supreme Court [Rule 138, Sec. 27, Revised Rules of Court]. All of these underscore the role of the lawyer as the vanguard of our legal system. The transgression of any provision of law by a lawyer is a repulsive and reprehensible act which the Court will not countenance. In the instant case, respondent, having violated Art. 1491 of the Civil Code, must be held accountable both to his client and to society.

Parenthetically, it should be noted that the persons mentioned in Art. 1491 of the Civil Code are prohibited from purchasing the property mentioned therein because of their existing trust relationship with the latter. A lawyer is disqualified from acquiring by purchase the property and rights in litigation because of his fiduciary relationship with such property and rights, as well as with the client. And it cannot be claimed that the new Code of Professional Responsibility has failed to emphasize the nature and consequences of such relationship. Canon 17 states that "a lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him." On the other hand, Canon 16 provides that "a lawyer shall hold in trust all moneys and properties of his client that may come into his possession." Hence, notwithstanding the absence of a specific provision on the matter in the new Code, the Court, considering the above quoted provisions of the new Code in relation to Art. 1491 of the Civil Code, as well as the prevailing jurisprudence, holds that the purchase by a lawyer of his client's property in litigation constitutes a breach of professional ethics for which a disciplinary action may be brought against him.

Respondent's next contention that the transfer of the properties was not really implemented, because the land development agreement on which the transfer depended was later rescinded, is untenable. Nowhere is it provided in the Transfer of Rights that the assignment of the properties of the Fortunados to respondent was subject to the implementation of the land development agreement. The last paragraph of the Transfer of Rights provides that:

... for and in consideration of the legal services of ATTY. RAMON A. GONZALES, Filipino, married to Lilia Yusay, and a resident of 23 Sunrise Hill, New Manila, Quezon City, rendered to our entire satisfaction, we hereby, by these presents, do transfer and convey to the said ATTY. RAMON A. GONZALES, his heirs, successor, and assigns, one-half (1/2) of our rights and interests in the abovedescribed property, together with all the improvements found therein [Annex D of the Complaint, Record, p. 28; Emphasis supplied].

It is clear from the foregoing that the parties intended the transfer of the properties to respondent to be absolute and unconditional, and irrespective of whether or not the land development agreement was implemented.

Another misconduct committed by respondent was his failure to disclose to complainant, at the time the land development agreement was entered into, that the land covered by TCT No. T-1929 had already been sold at a public auction. The land development agreement was executed on August 31, 1977 while the public auction was held on June 30, 1971.

Respondent denies that complainant was his former client, claiming that his appearance for the complainant in an anti-graft case filed by the latter against a certain Gilbert Teodoro was upon the request of complainant and was understood to be only provisional. Respondent claims that since complainant was not his client, he had no duty to warn complainant of the fact that the land involved in their land development agreement had been sold at a public auction. Moreover, the sale was duly annotated at the back of TCT No. T-1929 and this, respondent argues, serves as constructive notice to complainant so that there was no concealment on his part.

The above contentions are unmeritorious. Even assuming that the certificate of sale was annotated at the back of TCT No. T-1929, the fact remains that respondent failed to inform the complainant of the sale of the land to Samauna during the negotiations for the land development agreement. In so doing, respondent failed to live up to the rigorous standards of ethics of the law profession which place a premium on honesty and condemn duplicitous conduct. The fact that complainant was not a former client of respondent does not exempt respondent from his duty to inform complainant of an important fact pertaining to the land which is subject of their negotiation. Since he was a party to the land development agreement, respondent should have warned the complainant of the sale of the land at a public auction so that the latter could make a proper assessment of the viability of the project they were jointly undertaking. This Court has held that a lawyer should observe honesty and fairness even in his private dealings and failure to do so is a ground for disciplinary action against him [Custodio v. Esto, Adm. Case No. 1113, February 22, 1978, 81 SCRA 517].

Complainant also charges respondent with submitting to the court falsified documents purporting to be true copies of an addendum to the land development agreement.

Based on evidence submitted by the parties, the Solicitor General found that in the document filed by respondent with the Court of First Instance of Quezon City, the signatories to the addendum to the land development agreement namely, Ramon A. Gonzales, Alfaro T. Fortunado, Editha T. Fortunado, Nestor T. Fortunado, and Angel L. Bautista—were made to

appear as having signed the original document on December 9, 1972, as indicated by the letters (SGD.) before each of their names. However, it was only respondent Alfaro Fortunado and complainant who signed the original and duplicate original (Exh. 2) and the two other parties, Edith Fortunado and Nestor Fortunado, never did. Even respondent himself admitted that Edith and Nestor Fortunado only signed the xerox copy (Exh. 2-A) after respondent wrote them on May 24, 1973, asking them to sign the said xerox copy attached to the letter and to send it back to him after signing [Rejoinder to Complainant's Reply, pp. 4-6; Rollo, pp. 327-329]. Moreover, respondent acknowledged that Edith and Nestor Fortunado had merely agreed by phone to sign, but had not actually signed, the alleged true copy of the addendum as of May 23, 1973 [Respondent's Supplemental Motion to Refer this Case to the Integrated Bar of the Philippines, p. 16]. Thus, when respondent submitted the alleged true copy of the addendum on May 23, 1973 as Annex "A" of his Manifestation filed with the Court of First Instance of Quezon City, he knowingly misled the Court into believing that the original addendum was signed by Edith Fortunado and Nestor Fortunado. Such conduct constitutes willful disregard of his solemn duty as a lawyer to act at all times in a manner consistent with the truth. A lawyer should never seek to mislead the court by an artifice or false statement of fact or law [Section 20 (d), Rule 138, Revised Rules of Court; Canon 22, Canons of Professional Ethics; Canon 10, Rule 10.01, Code of Professional Responsibility].

Anent the first charge of complainant, the Solicitor General found that no impropriety was committed by respondent in entering into a contingent fee contract with the Fortunados [Report and Recommendation, p. 8; Record, p. 394]. The Court, however, finds that the agreement between the respondent and the Fortunados, which provides in part that:

We the [Fortunados] agree on the 50% contingent fee, provided, you [respondent Ramon Gonzales] defray all expenses, for the suit, including court fees.

[Annex A to the Complaint, Record, p. 4].

is contrary to Canon 42 of the Canons of Professional Ethics which provides that a lawyer may not properly agree with a client to pay or bear the expenses of litigation. [See also Rule 16.04, Code of Professional Responsibility]. Although a lawyer may in good faith, advance the expenses of litigation, the same should be subject to reimbursement. The agreement between respondent and the Fortunados, however, does not provide for reimbursement to respondent of litigation expenses paid by him. An agreement whereby an attorney agrees to pay expenses of proceedings to enforce the client's rights is champertous [JBP Holding Corp. v. U.S. 166 F. Supp. 324 (1958)]. Such agreements are against public policy especially where, as in this case, the attorney has agreed to carry on the action at his own expense in consideration of some bargain to have part of the thing in dispute [See Sampliner v. Motion Pictures Patents Co., et al., 255 F. 242 (1918)]. The execution of these contracts violates the fiduciary relationship between the lawyer and his client, for which the former must incur administrative sanctions.

The Solicitor General next concludes that respondent cannot be held liable for acting as counsel for Eusebio Lopez, Jr. in Civil Case No. Q-15490 while acting as counsel for the Fortunados against the same Eusebio Lopez, Jr. in Civil Case No. Q-15143. The Court, after considering the record, agrees with the Solicitor General's findings on the matter. The evidence presented by

respondent shows that his acceptance of Civil Case No. Q-15490 was with the knowledge and consent of the Fortunados. The affidavit executed by the Fortunados on June 23, 1976 clearly states that they gave their consent when respondent accepted the case of Eusebio Lopez, Jr. [Affidavit of Fortunados, dated June 23, 1976; Rollo, p. 198]. One of the recognized exceptions to the rule against representation of conflicting interests is where the clients knowingly consent to the dual representation after full disclosure of the facts by counsel [Canon 6, Canons of Professional Ethics; Canon 15, Rule 15.03, Code of Professional Responsibility].

Complainant also claims that respondent filed several complaints against him before the Court of First Instance and the Fiscal's Office of Quezon City for the sole purpose of harassing him.

The record shows that at the time of the Solicitor General's investigation of this case, Civil Case No. Q-18060 was still pending before the Court of First Instance of Quezon City, while the complaints for libel (I.S. No. 76-5912) and perjury (I.S. No. 5913) were already dismissed by the City Fiscal for insufficiency of evidence and lack of interest, respectively [Report and Recommendation, pp. 16-17; Rollo, pp. 402-403]. The Solicitor General found no basis for holding that the complaints for libel and perjury were used by respondent to harass complainant. As to Civil Case No. Q-18060, considering that it was still pending resolution, the Solicitor General made no finding on complainants claim that it was a mere ploy by respondent to harass him. The determination of the validity of the complaint in Civil Case No. Q-18060 was left to the Court of First Instance of Quezon City where the case was pending resolution.

The Court agrees with the above findings of the Solicitor General, and accordingly holds that there is no basis for holding that the respondent's sole purpose in filing the aforementioned cases was to harass complainant.

Grounds 6, 8 and 9 alleged in the complaint need not be discussed separately since the above discussion on the other grounds sufficiently cover these remaining grounds.

The Court finds clearly established in this case that on four counts the respondent violated the law and the rules governing the conduct of a member of the legal profession. Sworn to assist in the administration of justice and to uphold the rule of law, he has "miserably failed to live up to the standards expected of a member of the Bar." [Artiaga v. Villanueva, Adm. Matter No. 1892, July 29, 1988, 163 SCRA 638, 647]. The Court agrees with the Solicitor General that, considering the nature of the offenses committed by respondent and the facts and circumstances of the case, respondent lawyer should be suspended from the practice of law for a period of six (6) months.

WHEREFORE, finding that respondent Attorney Ramon A. Gonzales committed serious misconduct, the Court Resolved to SUSPEND respondent from the practice of law for SIX (6) months effective from the date of his receipt of this Resolution. Let copies of this Resolution be circulated to all courts of the country for their information and guidance, and spread in the personal record of Atty. Gonzales.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin and Cortes, JJ., concur.

Gutierrez, Jr., Sarmiento, Griño-Aquino, Medialdea, Regalado, JJ., took no part.

3.PEOPLE VS SANTOCILDES

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEONCIO SANTOCILDES, JR. y SIGA-AN, accused-appellant.

D E C I S I O N

QUISUMBING, J.:

Where an accused was not duly represented by a member of the Philippine Bar during trial, the judgment should be set aside and the case remanded to the trial court for a new trial.  A person who misrepresents himself as a lawyer shall be held liable for indirect contempt of court.

Subject of the present appeal is the decision dated October 29, 1992, of the Regional Trial Court of Iloilo City, Branch 33, convicting accused-appellant of the crime of rape, sentencing him to suffer the penalty of reclusion perpetua, and ordering him to pay the offended party the amount of P50,000.00 and to pay the costs.

The antecedent facts of the case are as follows:

On February 17, 1992, appellant was charged with the crime of rape[1] of a girl less than nine (9) years old, committed on December 28, 1991, in the town of Barangay San Luis, San Joaquin, Iloilo.

Upon arraignment, appellant entered a plea of not guilty.  Trial ensued and the prosecution presented as its witnesses the victim, her mother, her six (6) year-old playmate, and the medico-legal officer who examined the victim.

For the defense, appellant presented one German Toriales and himself.  Appellant denied committing the rape and claimed that he merely tried to stop the two girls, the victim and her playmate, from quarreling.

On October 29, 1992, the trial court rendered a decision[2] finding appellant guilty as charged.  The dispositive portion of the decision states:

“WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the crime of rape and sentences him to suffer the penalty of reclusion perpetua together its accessory penalty.  The accused is ordered to pay the amount of P50,000.00 to the complainant and another amount for costs, without subsidiary penalty in case of failure to pay the civil liability and the cost.

If qualified under Art. 29 of the Revised Penal Code, as amended by R.A. 6127, as amended, and he has agreed in writing to abide by the same rules imposed upon convicted prisoners, he shall be credited with the full duration of his preventive imprisonment; otherwise, he shall only be credited with 4/5 of the same.

SO ORDERED.”

Hence, appellant duly filed a Notice of Appeal.[3] In his brief,[4] appellant made the following assignment of errors:

I.  THE HONORABLE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING THAT THE ACCUSED IS GUILTY OF RAPE INSPITE OF CONFLICTING TESTIMONIES OF THE PRIVATE COMPLAINANT AND HER WITNESSES ON MATERIAL POINTS.

II.  THAT THE ACCUSED-APPELLANT WAS DEPRIVED THOUGH NO FAULT OF HIS OWN TO BE DEFENDED BY A PERSON AUTHORIZED TO PRACTICE LAW AMOUNTING TO DENIAL OF DUE PROCESS.”

Considering the importance of the constitutional right to counsel, we shall now first resolve the issue of proper representation by a member of the bar raised by appellant.

Appellant contends that he was represented during trial by a person named Gualberto C. Ompong, who for all intents and purposes acted as his counsel and even conducted the direct examination and cross-examinations of the witnesses.  On appeal, however, appellant secured the services of a new lawyer, Atty. Igmedio S. Prado, Jr., who discovered that Gualberto C. Ompong is actually   not   a member of the bar.    Further verification with the Office of the Bar Confidant confirmed this fact.[5] Appellant   therefore argues that his deprivation of the right to counsel should necessarily result in his acquittal of the crime charged.( acquittal jd?? over)

The Office of the Solicitor General, on the other hand, maintains that notwithstanding the fact that appellant’s counsel during trial was not a member of the bar, appellant was afforded due process since he has been given an opportunity to be heard and the records reveal that said person “presented the evidence for the defense with the ability of a seasoned lawyer and in general handled the case of appellant in a professional and skillful manner.” However, the right of the accused to be heard by himself and his counsel, in our view, goes much deeper than the question of ability or skill.     It lies at the heart of our adversarial system of justice.  Where the interplay of basic rights of the individual may collide with the awesome forces of the state, we need a professional learned in the law as well as ethically committed to defend the accused by all means fair and reasonable.

Indeed, the right to counsel is of such primordial importance that even if an accused was represented by three successive counsels from the Public Attorney’s Office, the Court has ordered the remand of a rape case when it found that accused was given mere perfunctory representation by aforesaid counsels such that appellant was not properly and effectively accorded the right to counsel

The presence and participation of counsel in criminal proceedings should never be taken lightly.[8] Even the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. [9] The right of an accused to counsel is guaranteed to minimize the imbalance in the adversarial system where the accused is pitted against the awesome prosecutory machinery of the State. [10] Such a right proceeds from the fundamental principle of due process which basically means that a person must be heard before being condemned.  The due process requirement is a part of a person’s basic rights; it is not a mere formality that may be dispensed with or performed perfunctorily.[11]

The right to counsel of an accused is enshrined in no less than Article III, Sections 12 and 14 (2) of the 1987 Constitution.  This constitutional mandate is reflected in Section 1 of Rule 115 of the 1985 Rules of Criminal Procedure which declares the right of the accused at the trial to be present in person and by counsel at every stage of the proceedings from the arraignment to the promulgation of judgment.  In turn, Section 5 of Article VIII of the 1987 Constitution vests the power to promulgate rules concerning the admission to the practice of law to the Supreme Court.  Section 1 of Rule 138 of the Rules of Court explicitly states who are entitled to practice law in the Philippines, and Section 2 thereof clearly provides for the requirements for all applicants for admission to the bar.  Jurisprudence has also held that “the right to practice law is not a natural or constitutional right but is in the nature of a privilege or franchise.     It is limited to persons of good moral character with special qualifications duly ascertained and certified.  The right does not only presuppose in its possessor integrity, legal standing and attainment, but also the exercise of a special privilege, highly personal and partaking of the nature of a public trust.”[12] Indeed, so strict is the regulation of the practice of law that in Beltran, Jr. v. Abad,[13] a Bar candidate who has already successfully hurdled the Bar examinations but has not yet taken his oath and signed the roll of attorneys, and who was caught in the unauthorized practice of law was held in contempt of court.  Under Section 3 (e) of Rule 71 of the Rules of Court, a person who undertakes the unauthorized practice of law is liable for indirect contempt of court for assuming to be an attorney and acting as such without authority.

WHEREFORE , the assailed judgment is SET ASIDE, and the case is hereby REMANDED to the trial court for new trial.

With respect to the unauthorized practice of law by the person named Gualberto C. Ompong in connection with this case, the local Chapter of the Integrated Bar of the Philippines of Iloilo City is DIRECTED to conduct a prompt and thorough investigation regarding this matter and to report its recommendations to the Court within ninety (90) days from notice of this order.   Let all concerned parties, including the Office of the Bar Confidant, be each furnished a copy of this Decision for their appropriate action.

No pronouncement as to costs.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

4. JUNIO VS GRUPO

ROSARIO JUNIO, complainant, vs. ATTY. SALVADOR M. GRUPO, respondent.

D E C I S I O N

MENDOZA, J.:

This is a complaint for disbarment filed against Atty. Salvador M. Grupo for malpractice and gross misconduct.

Complainant Rosario N. Junio alleged that  

1.  Sometime in 1995, [she] engaged the services of [respondent], then a private practitioner, for the redemption of a parcel of land covered by Transfer Certificate of Title No. 20394 registered in the name of her parents, spouses Rogelio and Rufina Nietes, and located at Concepcion, Loay, Bohol.

2.  On 21 August 1995, [complainant] entrusted to [respondent] the amount of P25,000.00 in cash to be used in the redemption of the aforesaid property. Respondent received the said amount as evidenced by an acknowledgment receipt, a copy of which is being hereto attached as Annex “A”.

3.  Notwithstanding the foregoing and for no valid reason, respondent did not redeem the property; as a result of which the right of redemption was lost and the property was eventually forfeited.

4.  Because of respondent’s failure to redeem the property, complainant had demanded [the] return of the money which she entrusted to the former for the above-stated purpose.

5.  Despite repeated demands made by the complainant and without justifiable cause, respondent has continuously refused to refund the money entrusted to him.[1]

In his Answer, petitioner admitted receiving the amount in question for the purpose for which it was given.  However, he alleged that

6.  The subject land for which the money of complainant was initially intended to be applied could really not be redeemed anymore . . ;

7.  Complainant knew the mortgage agreement between her parents and the mortgage-owner had already expired, and what respondent was trying to do was a sort of [a] desperate, last-ditch attempt to persuade the said mortgagee to relent and give back the land to the mortgagors with the tender of redemption; but at this point, the mortgagee simply would not budge anymore.   For one reason or another, he would no longer accept the sum offered;

8.  By the time that complainant was to return to Manila, it was already a foregone matter that respondent’s efforts did not succeed.  And so, when transaction failed, respondent requested the complainant that he be allowed, in the meantime, to avail of the money because he had an urgent need for some money himself to help defray his children’s educational expenses.  It was really a personal request, a private matter between respondent and complainant, thus, respondent executed a promissory note for the amount, a copy of which is probably still in the possession of the complainant.

9. . . . [T]he family of the complainant and that of the respondent were very close and intimate with each other.  Complainant, as well as two of her sisters, had served respondent’s family as household helpers for many years when they were still in Manila, and during all those times they were treated with respect, affection, and equality.  They were considered practically part of respondent’s own family.

That is why, when complainant requested . . . assistance regarding the problem of the mortgaged property which complainant wanted to redeem, respondent had no second-thoughts in extending a lending hand . . . .

Respondent did not ask for any fee.  His services were purely gratuitous; his acts [were] on his own and by his own.  It was more than pro bono; it was not even for charity; it was simply an act of a friend for a friend.  It was just lamentably unfortunate that his efforts failed.

. . . .

Of course, respondent accepts his fault, because, indeed, there were occasions when complainant’s sisters came to respondent to ask for the payment in behalf of complainant, and he could not produce the money because the circumstances somehow, did not allow it.  [I]t does not mean that respondent will not pay, or that he is that morally depraved as to wilfully and deliberately refuse his obligation towards the complainant.[2]

Complainant filed a reply denying that respondent informed her of his failure to redeem the property and that respondent requested her to instead lend the money to him.[3]

The case was thereafter referred to the Integrated Bar of the Philippines (IBP) for investigation, report, and recommendation.  However, while two hearings were set for this purpose, both were postponed at the instance of respondent.  For this reason, on August 28, 2000, complainant asked the Investigating Commissioner[4] to consider the case submitted for decision on the basis of the pleadings theretofore filed.  Respondent was required to comment on complainant’s motion, but he failed to do so.  Consequently, the case was considered submitted for resolution.

In his report, dated January 5, 2001, the Investigating Commissioner found respondent liable for violation of Rule 16.04 of the Code of Professional Responsibility which forbids lawyers from borrowing money from their clients unless the latter’s interests are “protected by the nature of the case or by independent advice.” The Investigating Commissioner found that respondent failed to pay his client’s money.  However, in view of  respondent’s admission of liability and “plea for magnanimity,” the Investigating Commissioner recommended that

respondent be simply reprimanded and ordered to pay the amount of P25,000.00 loan plus interest at the legal rate.

In its Resolution No. XIV-2001-183, dated April 29, 2001, the IBP Board of Governors adopted and approved the Investigating Commissioner’s findings.  However, it ordered 

[R]espondent .  .  . suspended indefinitely from the practice of law for the commission of an act which falls short of the standard of the norm of conduct required of every attorney and .   .  . ordered [him] to return to the complainant the amount of P25,000.00 plus interest at the legal rate from the time the said amount was misappropriated, until full payment; provided that the total suspension shall be at least one (1) year from the date of said full payment.

On July 4, 2001, respondent filed a motion for reconsideration alleging that 

(a) there was no actual hearing of the case wherein respondent could have fully ventilated and defended his position;

(b) the subject Resolution gravely modified the Report and Recommendation of the Trial Commissioner, Hon. Pedro Magpayo, Jr., . . . such that the resultant sanctions that are ordered imposed are too leonine, unjust and cruel;

(c) that the factual circumstances attending the matter which gave rise to the complaint were not rightly or fairly appreciated.[5]

He argues that the Court should adopt the report and recommendation of  the IBP Investigating Commissioner.

In its resolution of August 15, 2001, the Court resolved to treat respondent’s motion for reconsideration as a petition for review of IBP Resolution No. XIV 2001-183 and required complainant to comment on the petition.

In her comment, complainant states that her primary interest is to recover the amount of P25,000.00 with interest and that she is leaving it to the Court to decide whether respondent deserves the penalty recommended by the IBP.[6]

The Court resolves to partially grant the petition.  In his report and recommendation, Investigating Commissioner Magpayo, Jr. made the following findings:

In his Answer, the respondent ADMITS all the allegations in paragraph 4 of the complaint which avers:

4. On 21 August 1995, complainant entrusted to respondent the amount of P25,000.00 in cash to be used in the redemption of the aforesaid property (parcel of land covered by TCT No. 20394 registered in the name of complainant’s parents located at Concepcion, Loay, Bohol).  Respondent received the said amount as evidenced by an acknowledgment receipt (Annex A).

By way of confession and avoidance, the respondent, . . . however, contended that when the mortgagee refused to accept the sum tendered as the period of redemption had already expired, he requested the complainant to allow him in the meantime to use the money for his children’s

educational expenses[,] to which request the complainant allegedly acceded and respondent even executed a promissory note (please see 4th par. of Annex “B” of complaint).

Respondent takes further refuge in the intimate and close relationship existing between himself and the complainant’s family on the basis of which his legal services were purely gratuitous or “simply an act of a friend for a friend” with “no consideration involved.” Unfortunately, his efforts to redeem the foreclosed property, as already stated, did not produce the desired result because the mortgagee “would not budge anymore” and “would not accept the sum offered.”

Thus, the respondent concluded that there was, strictly speaking, no attorney-client [relationship] existing between them.  Rather, right from the start everything was sort of personal, he added.

Granting to the respondent the benefit of the doubt, we shall assume that there was in reality a loan in the amount of P25,000.00.  This is likewise confirmed by the execution of a promissory note on 12 December 1996 by the respondent who “undertook to pay Mrs. Junio on or before January 1997” (Annex B of complaint).  Moreover, the demand letter of 12 March 1998 (Annex B) mentions of “reimbursement of the sum received” and interest of “24% per annum until fully paid” giving the impression that the funds previously intended to be used for the repurchase of a certain property (Annex A of complaint) was converted into a loan with the consent of the complainant who gave way to the request of the respondent “to help defray his children’s educational expenses” (par. 8 of Answer).

Be that as it may, the duty and obligation to repay the loan remains unshaken.  Having utilized the sum to fulfill his “urgent need for some money,” it is but just and proper that he return the amount borrowed together with interest.

Five (5) years had already passed since respondent retained the cash for his own personal use.  But notwithstanding the same and his firm promise “to pay Mrs. Junio on or before January 1997” he has not demonstrated any volition to settle his obligation to his creditor[,] although admittedly “there w[ere] occasions when complainant’s sister came to respondent to ask for the payment in behalf of complainant,” worse, “the passage of time made respondent somehow forgot about the obligation.”

A lawyer shall not borrow money from his client unless the client’s interests are fully protected by the nature of the case or by independent advice (Rule 16.04, Code of Professional Responsibility).  This rule is intended to prevent the lawyer from taking advantage of his influence over the client.

This rule is especially significant in the instant case where the respondent enjoys an immense ascendancy over the complainant who, “as well as two of his sisters, had served respondent’s family as household helpers for many years.”

Having gained dominance over the complainant by virtue of such long relation of master and servant, the respondent took advantage of his influence by not returning the money entrusted to

him.  Instead, he imposed his will on the complainant and borrowed her funds without giving adequate security therefor and mindless of the interest of the complainant.

In the light of the foregoing, . . . respondent has committed an act which falls short of the standard of the norm of conduct required of every attorney.     If an ordinary borrower of money is required by the law to repay the loan failing which he may be subjected to court action, it is more so in the case of a lawyer whose conduct serves as an example . [7]

It would indeed appear from the records of the case that respondent was allowed to borrow the money previously entrusted to him by complainant for the purpose of securing the redemption of the property belonging to complainant’s parents.  Respondent, however, did not give adequate security for the loan and subsequently failed to settle his obligation.  Although complainant denied having loaned the money to respondent, the fact is that complainant accepted the promissory note given her by respondent on December 12, 1996.  In  effect, complainant consented to and ratified respondent’s use of the money.  It is noteworthy that complainant did not attach this promissory note to her complaint nor explain the circumstances surrounding its execution.  She only mentioned it in her demand letter of March 12, 1998 (Annex B), in which she referred to respondent’s undertaking to pay her the P25,000.00 on or before January 1997.  Under the circumstances and in view of complainant’s failure to deny the promissory note, the Court is constrained to give credence to respondent’s claims that the money previously entrusted to him by complainant was later converted into a loan.

Respondent’s liability is thus not for misappropriation or embezzlement but for violation of Rule 16.04 of the Code of Professional Responsibility which forbids lawyers from borrowing money from their clients unless the latter’s interests are protected by the nature of the case or by independent advice.  In this case, respondent’s liability is compounded by the fact that not only did he not give any security for the payment of the amount     loaned to him but that he has also refused to pay the said amount.   His claim that he could not pay the loan “because circumstances . . . did not allow it” and that, because of the passage of time, “he somehow forgot about his obligation” only underscores his blatant disregard of his obligation which reflects on his honesty and candor.  A lawyer is bound to observe candor, fairness, and loyalty in all his dealings and transactions with his client.[8]

Respondent claims that complainant is a close personal friend and that in helping redeem the property of complainant’s parents, he did not act as a lawyer but as a friend, hence there is no client-attorney relationship between them.  This contention has no merit.   As explained in Hilado v. David,[9]

To constitute professional employment it is not essential that the client should have employed the attorney professionally on any previous occasion . . . It is not necessary that any retainer should have been paid, promised, or charged for; neither is it material that the attorney consulted did not afterward undertake the case about which the consultation was had.  If a person, in respect to his business affairs or troubles of any kind, consults with his attorney in his professional capacity with the view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces in such consultation, then the professional employment must be regarded as established . . . .

Considering the foregoing, the Investigating Commissioner’s recommendation to impose on respondent the penalty of reprimand and restitution of the amount loaned by him is clearly inadequate.    On the other hand, the penalty of indefinite suspension with restitution imposed by the IBP Board of Governors is too harsh in view of respondent’s apparent lack of intent to defraud complainant and of the fact that this appears to be his first administrative transgression. It is the penalty imposed in Igual v. Javier[10] which applies to this case.  In that case, this Court ordered the respondent suspended for one month from the practice of law and directed him to pay the amount given him by his clients within 30 days from notice for his failure to return the money in question notwithstanding his admission that he did not use the money for the filing of the appellee’s brief, as agreed by them, because of an alleged quarrel with his clients.

Anent petitioner’s allegation regarding the lack of hearing during the IBP investigation, suffice it to say that he waived such right when he failed to comment on petitioner’s motion to submit the case for resolution on the basis of the pleadings theretofore filed despite due notice to him, not to mention the fact that it was he who had requested the postponement of the two hearings scheduled by the Investigating Commissioner.

WHEREFORE, the Court finds petitioner guilty of violation of Rule 16.04 of the Code of Professional Responsibility and orders him suspended from with interest at the legal rate, computed from December 12, 1996.the practice of law for a period of one (1) month and to pay to respondent, within 30 days from notice, the amount of P25,000.00

SO ORDERED.

Bellosillo, (Chairman), Quisumbing, and De Leon, Jr., JJ., concur.Buena, J., abroad on official business.

6.PEOPLE VS. SEVILLENO 305 SCRA 519Monday, February 23, 2009 Posted by Coffeeholic Writes Labels: Case Digests, Legal Ethics

FACTS: The accused was charged with the crime of rape with homicide committed against a

9 year old minor. He entered the plea of guilty for the crime charged. When the prosecution

rested its case, Atty. Saldavia of the PAO appointed as counsel de oficio for the accused

manifested that since his client had already pleaded guilty he would no longer present any

evidence. He only invoked the mitigating circumstances of plea of guilty.

ISSUE: Whether or not the counsel de officio of the accused acted properly as defense counsel.

HELD:  No. Canon 18 of the Code of Professional Responsibility requires every lawyer to

serve his client with utmost dedication, competence and diligence. He must not neglect a legal

matters entrusted to him, and his negligence in this regard renders him administratively liable. In

the instant case, the defense lawyer did not protect, much less uphold the fundamental rights of

the accused. Instead, they haphazardly performed their function as counsel de officio to the

detriment and prejudice of the accused.

7. Carino vs de los Reyes

SECOND DIVISION

[A.C. No. 4982.  August 9, 2001]

KATRINA JOAQUIN CARINO, petitioner, vs. ATTY. ARTURO DE LOS REYES, respondent.

D E C I S I O N

MENDOZA, J.:

This is a petition for review of the Integrated Bar of the Philippines' (IBP) Resolution No. XIV-2000-460, dated July 29, 2000, dismissing the complaint for inexcusable negligence filed by Katrina Cariño against respondent Atty. Arturo de los Reyes.

Complainant alleged that on March 3, 1998, she contracted the services of respondent, a former Quezon City prosecutor, to file complaints for slander by deed, threats, and physical injuries against her relatives Faye Lorenz, Godofreditas Lorenz, and Rosario Joaquin, who themselves subsequently filed charges against complainant and her father for maltreatment, physical injuries, and threats with the Quezon City Prosecutor's Office.  As agreed, complainant paid respondent the amount of P10,000.00 as acceptance fee. However, despite demands by complainant, respondent never filed the complaint-affidavits with the prosecutor's office for preliminary investigation.    On the other hand, with respect to the complaints filed by the Lorenzes and Joaquin, Quezon City Assistant Prosecutor Francisco Soller recommended the filing of informations for maltreatment, threats, and slight physical injuries against complainant and her father.  The cases were subsequently filed before the Metropolitan Trial Court, Branch 41, Quezon City.  Complainant alleged that respondent failed to protect their interest, for which reason they were forced to hire the services of another counsel, Atty. Ricardo J .M. Rivera, who promptly filed a motion for reinvestigation, which, however, was denied by the prosecutor's office.[1]

Respondent denied that he had agreed to represent petitioner in filing criminal complaints against petitioner's aforementioned relatives.  He stated that his services were

hired in connection with the filing of a case for partition of the lot occupied by petitioner and her father, on one hand, and their relatives in question, on the other hand. It was alleged that petitioner promised to furnish him the certification of the Lupon ng Tagapamayapa for the filing of the case in court as well as the Transfer Certificate of Title of the lot to be partitioned but, as petitioner failed to do so, respondent withdrew from the case and returned the acceptance fee of P10,000.00 paid by petitioner. Respondent added that he is a member of the Commission on Bar Discipline of the IBP investigating complaints against member of the bar, and he is mindful of the duties of members of the bar toward their clients.[2]

Petitioner admits the return of the P10,000.00 acceptance fee, but says that the money was paid only after repeated demands made by her to respondent and after she had threatened to charge respondent with estafa.[3]

On June 14, 1999, the Court referred the case to the IBP for investigation, report, and recommendation.     In its resolution, dated July 29, 2000, the IBP dismissed the complaint for insufficiency of evidence.     Hence this petition under Rule 139-B, §12(c).

We find the petition meritorious.

In dismissing petitioner's complaint, the IBP Investigating Commissioner[4] stated:

Complainant’s and respondent's version of the incident which gave rise to the present complaint are poles apart. Consequently, the Commission had to weigh very well the evidence adduced by both parties.  When juxtaposed against each other, the Commission finds complainant's evidence inadequate to justify the imposition of disciplinary action against the respondent. Certainly, if the intention of the respondent was to wreck havoc on the complainant, he would not even have bothered to return the P10,000.00 acceptance fee, a fact which is not being disputed.

All persons are presumed innocent of the charge/s against [them] by reason of constitutional and statutory dicta. To overcome this presumption, strong and convincing evidence must be adduced.

In the case at bar, this Commission finds complainant's evidence inadequate or insufficient to overcome said presumption.  Accordingly, there is no other option but to deny due course to complainant's complaint.[5]

The Court cannot subscribe to this finding.

In her complaint, petitioner narrated in detail the circumstances of her employment of respondent's legal services.  She alleged:

[I]n the morning of February 25, 1998, at around 9:00 o'clock, my father, Virgilio S. Joaquin, and I were the unfortunate victims of physical assault, slander by deed and threats committed by our relatives, Rosario M. Joaquin, Faye Maybelle J. Lorenz and Godofreditas Lorenz.  Resultantly, we filed with the Barangay a complaint for said crimes against the offenders, who, in turn, filed countercharges against us for maltreatment, physical injuries and threats.  On March 3, 1998, while conciliation hearings on the charges and countercharges were being undertaken by the Barangay, I and my father hired the legal services of Atty. Arturo de los Reyes, a former Quezon City Prosecutor, who was referred to us by a family friend and neighbor, Lily Jodloman.  After briefing him of our legal problem, Atty. Reyes agreed to be our

lawyer in the cases for a fee of P10,000.00 plus P1,000.00 per court appearance.  For the purpose of preparing our affidavit-complaint, I furnished Atty. Reyes a xerox copy each of the medical certificate of my father; our joint-statement concerning the incident, and a police blotter.   Atty. Reyes assured us that our affidavit-complaint would be prepared by him at the soonest possible time.

On March 17, 1998, at 12:00 noon, I paid Atty. Reyes [the] acceptance fee of P10,000.00.

[I]n the evening of April 6, 1998, I handed to Atty. Reyes the Certification to File Action issued by the Barangay concerning our criminal complaint for slight physical injuries, slander by deed and threat against our aforementioned tormentors. I informed Atty. De los Reyes that a Certificate to File Action on the countercharges [filed by] our tormentors ha[d] likewise been issued by the Barangay.  And [i]n the morning of April 10, 1998, Atty. Reyes informed me that he had already gone over the Certification to File Action.  He forewarned and assured me: "Pagnauna silang magfile, kayo ng father mo ang maihahabla.  Kayo ang makukulong.  Pero huwag kang mag-alala itataya ko ang profesyon ko para sayo."

[I]n the morning of April 13, 1998, I telephoned Atty. Reyes and asked him if I and my father could already sign the affidavit-complaint against our tormentors so that it could be filed with the Quezon City Prosecutor's Office, but he told me that he has not yet prepared it.   He assured me that he would work on it in the evening of said date.  The following day at around 9:00 a.m. I followed up the matter thru his beeper, Atty. Reyes did not respond.  At 8:30 p.m. of that date, I received a telephone call from Atty. Reyes.  He told me that he had misplaced the Certification to File Action.  Forthwith my father rushed to Atty. Reyes' residence and gave him a copy thereof.

From April 15 to 19, 1998, I repeatedly followed up the preparation of our affidavit complaint thru beeper messages to Atty. Reyes, but he had inexplicably failed to respond.  Finally, [i]n the morning on April 20, 1998, Atty. Reyes called up and informed me that he has not yet finished the affidavit-complaint, because his secretary did not report for work.  Extremely disappoint[ed] by the delay in the preparation of our affidavit-complaint and the filing thereof with the Prosecutor's Office of Quezon City, I offered to do the typing for him, but Atty. Reyes said: "Huwag na, nakakahiya naman sa iyo.  Pag report ng secretary ko, ipapatype ko at tatawagan ko kayo ng father mo.  Pasensiya ka na ha!"

On April 21, 1998, at 5:00 p.m., Atty. Reyes met me at the house of my friend, Lily Jodloman, whose house is only across the street from ours. My friend Lily expressed grave concern about the unreasonable delay in the filing of our criminal complaint, and this time, Atty. Reyes gave another reason. He claimed that he was tasked by the IBP to monitor the coming national and local elections. He promised to finish our affidavit-complaint in the evening of that date and to personally file it with the Office of the Prosecutor of Quezon City.

The following, (April 22, 1998), at 8:00 o'clock, I called up Atty. Reyes, but I was told by his wife that he had already left.  I requested for a return call, which request I repeated several times thru his beeper, but to no avail.  Finally at 11:00 p.m., Atty. Reyes called up and said, "Masama ang nangyari." And I retorted, "Ano bang masama ang nangyari? Nagawa na ho ba ninyo ang

afftdavit namin?" He sounded evasive in his reply and merely said, "0 sige, Kit ha, magtawagan na lang tayo bukas kasi kadarating ko lang galing sa election meeting.  O bukas tatawagan kita ha." But he did not call me the whole day of April 23, 1998.  Neither did he call on April 24, 25, 26 and 27, 1998, despite repeated calls from me by telephone and by beeper messages.

On April 28, 1998, at 10:30 p.m., Atty. Reyes at last called up. He said that his secretary did not report for work the previous days and he could not give me a feedback. He further said: "Naku Kit, sigurado na bukas, sasamahan mo ako bukas sa pagfile ha. Maghintay ka ng call ko sa hapon natin ipa-file." Because of this assurance by Atty. Reyes, I cancelled all my appointments on April 29, 1998 and waited the whole day for his call, but he never did. In response to my beeper message, he called up in the evening and explained that there was an emergency meeting called by LAKAS - NUCD that kept him busy the whole day.     He again promised to finish our affidavit-complaint and file it in few days.

On May 4, 1998, at around 9:30 a.m., I got the surprise of my life when I received a resolution from the Office of the City Prosecutor of Quezon City, finding probable cause concerning the supposed countercharges against us that were filed in the Barangay after we had filed ours, by our tormentors, Faye Maybelle J. Lorenz and Rosario M. Joaquin, for maltreatment, physical injuries and threats.  I then realized that the countercharges of our tormentors against us were filed with the Quezon City Prosecutor's Office ahead of our complaint, which has yet to be filed with said office by our lawyer[6]....

Respondent was unable to controvert the foregoing account.     Instead, he claimed that he was hired by petitioner to file a case for partition, but, because the latter failed to give him the documents to be used in filing of the case, he decided to withdraw his representation.

The Court finds respondent's explanation flimsy. His services were hired by petitioner six days after the occurrence of the incident giving rise to the filing of the charges and counter-charges for physical injuries, threats, and slander by deed filed by the parties before the Lupong Tagapamayapa of their barangay. It is improbable, therefore, that petitioner at that time would hire the services of respondent for a purpose other than in connection with petitioner's pressing legal concern, i.e., the filing of the criminal complaints with the prosecutor's office.  Moreover, the Court cannot believe that petitioner merely made up a case of evasion of clear duty by respondent to hold the latter liable for professional misconduct.  On the other hand, respondent could have easily submitted the affidavits of his wife and/or that of Lily Jodloman to controvert petitioner's claims had he had not taken his professional engagement seriously.

Rule 18.03 of the Code of Professional Responsibility provides -

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

Respondent's conduct in this case, exacerbated by his attempt to evade responsibility, falls short of what the law requires.     The fact that, as claimed by him, he is a member of the IBP commission investigating complaints against members of the bar all the more should have impressed on him his duty of fidelity to his client's cause.     That he returned the money paid to him does not diminish his responsibility but only mitigates the penalty.

On the other hand, there is no merit in petitioner's claim that, as a result of respondent's failure to file the complaint for threats, prescription set in. Pursuant to Art. 90, in relation to Art. 283 of the Revised Penal Code, the prescriptive period for filing a complaint for threats is five years.  In any event, the interests of petitioner and that of her father are not altogether without legal protection as they can controvert the charges against them in the proceedings before the trial court.

WHEREFORE, the Integrated Bar of the Philippines' Resolution No. XIV-2000-460, dated July 29, 2000, is SET ASIDE and respondent Atty. Arturo de los Reyes is REPRIMANDED with warning to be henceforth more careful in the performance of his duty to his clients.

SO ORDERED.

Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

17L E G A L E T H I C SR E V I E W E RATENEO CENTRAL BAR OPERATIONS 2001G.N.C.•General Rule: An attorney cannot represent adverse interest.•Exception: Where the parties consent to the representation after fulldisclosure of facts.•The TEST in determining Conflicting Interest: The test is whether or not the acceptance of a new relation will prevent an attorney from the full discharge of his duty of individual fidelity and loyalty to his client or invite suspicion of unfaithfulness in double-dealing in the performance thereof. (Tiana vs. Ocampo)