legal counseling and social responsibility (legal ethics)

7/26/2019 Legal Counseling and Social Responsibility (Legal Ethics)

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Legal Counseling and Social Responsibility Case Digestsby Monica S. Cajucom

1

AURORA CAMARA VDA. DE ZUBIRIv. WENCESLAO

ZUBIRI aliasBEN, ET AL.

December 17, 1966, G.R. No. L-16745, EN BANC (Regala,J.)

FACTS:

Aurora Camara Vda. de Zubiri filed with the CFI of Lanao del Norte

a complaint for the recovery of her alleged share in 2 commercial

lots in Iligan City against Wenceslao Ben Zubiri and the Standard

Vacuum Oil Co., the occupant of portions of the said properties. She

alleged that the said lots were conjugal because they have been

purchased by her and her late husband during their marriage.

Moreover, she claimed that Ben was in the possession of the said

properties and has no right, interest, nor participation therein

unless proven that he is a duly recognized natural child of her

husband.

Four pleadings were filed in this case, namely: 1) the herein

appellant's answer; 2) a Stipulation of Facts; 3) a motion to render

judgment on the pleadings; and 4) the defendant Standard Vacuum

Oil Company's answer to the above complaint.

The trial court rendered judgment in accordance with the

Stipulation of Facts. Since in both the answer and the stipulation of

facts Ben admitted practically all the allegations of the complaint,

thus in favor of Aurora.

Ben filed a petition to set aside judgment upon two grounds, to wit:

first, the three pleadings filed namely: appellant's answer, the

stipulation of facts and the motion to render judgment on the

pleadings were all prepared by the plaintiff's counsel and that he,

the appellant, was made to sign all of them when he was ill and,

therefore, incapable of realizing the full consequences of the act;

and, second, that the plaintiff's cause of action was barred by a

prior judgment because the properties claimed by the plaintiff had

already been determined and adjudicated to him in previous

decisions.

A week before the scheduled hearing for the petition, Bens counsel

filed a motion to postpone the hearing on the ground that he could

not release himself from his current employment as to be free to

attend the said hearing. However, the court denied the motion and

proceeded with the scheduled hearing despite the absence of the

defendant's counsel and, after hearing the plaintiff's argument,

likewise denied the petition to set aside judgment. The subsequent

motion for reconsideration thereof having been denied too, the

defendant-appellant interposed the present appeal.

ISSUE: Whether or not the denial of the motion to set aside

judgment was reasonable and proper.

HELD: No.

Appeal GRANTED. The decision denying the motion to set aside

judgment is likewise REVOKED.

In the first place, the motion for postponement under consideration

was the very first filed by the counsel for the appellant. It was filed

with the court a full week prior to the scheduled hearing, with due

and proper notice to the opposing party. Its ground was not

unreasonable and hardly flimsy since it is not denied that then, thecounsel for the appellant was under some contractual commitments

from which he needed time to be release. Under these

circumstances, it does seem that the denial of the motion prevented

rather than serve the ends of justice.

Secondly, the appellant's petition to set aside judgment, which was

verified and duly supported by two affidavits of merit, was

grounded on very serious allegations.


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In the defendants answer, an admission in paragraph 1 of the same

was so total and unqualified a repudiation of the defendant's own

interest that indeed, especially as it was avowed in the said pleading

that the defendant was unassisted by counsel, the trial court should

have insisted upon some assurance that the defendant was solely

and fully accountable therefor. After the defendant represented

under oath that the plaintiff's counsel was the principal author of

the same, and the one who talked him into participating in it, the

intervention of the lower court became an absolute necessity.

To be sure, the active participation of a lawyer in one party's affairs

relating to a pending case in which the said lawyer is the counsel

for the opposing party is brazenly unethical to say the least. The

Canons of Legal Ethics very explicitly declare that "it is

unprofessional to represent conflicting interests." The

simultaneous representation by a lawyer of both parties to a suit

constitutes malpractice which should be severely condemned and

the lawyer corrected by disciplinary action.

Moreover, the affidavits of merit appended to the petition to set

aside judgment recited that the defendant-appellant was seriously

sick at the time he was made to sign and swear to the above three

repudiated pleadings. Under the circumstances, therefore, the

mental capacity of the appellant to responsibly assent to

commitments set forth in the same three pleadings became

doubtful and the trial court should have exerted its earnest effortsto resolve the doubt considering that the subject matter of the suit

was not just an insubstantial sum.

Finally, one of the grounds invoked by the defendant-appellant in

his petition to set aside judgment was the alleged finality of a

judicial decision in special proceedings declaring Ben as the sole

heir of his deceased father. Aurora assails that the special

proceedings are void on the ground of fraud. The vice, if any, may

well be determined at a hearing.


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COSMOS FOUNDRY SHOP WORKERS UNION and FILEMON G.

ALVAREZv.

LO BU and COURT OF APPEALS

March 25, 1975, G.R. No. L-40136, SECOND DIVISION

(Fernando,J.)

FACTS:

Cosmos Foundry Shop Workers Union was able to obtain from the

Court of Industrial Relations the third alias writ of execution for the

satisfaction and enforcement of the judgment in its

favor.Thereafter, Deputy Sheriff Abiog of Manila, who was

especially deputized to serve the writ, levied on the personal

properties of the Cosmos Foundry Shop or the New Century

Foundry Shop to conduct the public auction sale. Respondent Lo Bu

filed an urgent motion to recall writ of execution, asserting lack of

jurisdiction, a point stressed in another motion on the furtherground that labor union petitioner failed to put up an indemnity

bond. These motions were denied. The subsequent motion for

reconsideration was likewise denied.

An appeal by certiorari was filed by the respondent with the

Supreme Court. It was denied. Also, a replevin suit was filed by the

Lo Bu with the CIR of Manila pertaining to the same properties. The

labor union petitioner filed a motion to dismiss the complaint for

replevin alleging that the property sold to Lo Bu was fictitious,

meaning he is not the true owner thereof. The complaint wasdismissed accordingly. The adverse decision was elevated to the

Court of Appeals by Lo Bu. A petition was filed by the labor union

petitioner contending that the appeal was a delaying tactic to

frustrate the awarding of judgment to the union.

Petitioner labor union has made out a case for certiorari and

prohibition.

ISSUE: Whether or not the appeal made by respondent Lo Bu is a

mere dilatory tactic.

HELD: Yes.

Petitions GRANTED.

From the evidence and the records, the Court finds that after the

Cosmos Foundry Shop was burned, Ong Ting established the New

Century Foundry Shop. He and his family resided in the premises of

the shop. Offers of compromise were made by the counsel of the

owner, even hinting that measures would be taken if these offers

were not accepted. These offers were rejected and thereafter a deed

of absolute sale was executed over the business and its properties

to Lo Bu. Despite the sale to Lo Bu, Ong Ting still filed a motion to

re-open the case and a motion for reconsideration. In the MR, it was

alleged that Ong Ting lost everything after the fire even if an

absolute sale had just transpired between him and Lo Bu. The

absence of good faith on the part of respondent Lo Bu as the

alleged vendee was made clear, i.e. that there was no actual

turnover of the business to Lo Bu. Because at the time Ong Ting

died, he and his family were still residing at the business premises

without payment of rental to Lo Bu. In fact, the members of Ong

family were the ones in charge of the shop. We arrive at a

conclusion that the sale was made in bad faith. It is merely fictitious

and in circumvention of the laws.

The sad plight of petitioner labor union had been previously noted.

It is about time that a halt be called to the schemes utilized by

respondent Lo Bu in his far-from-commendable efforts to defeat

labor's just claim. It would be repugnant to the principle of social

justice and the mandate of protection to labor if there be further

delay in the satisfaction of a judgment that ought to have been

enforced years ago.


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One last point. Such conduct on the part of counsel is far from

commendable. He could, of course, be casuistic and take refuge in

the fact that the paragraph of the petition, which he denied, was, in

addition to being rather poorly and awkwardly worded, also prolix,

with unnecessary matter being included therein without due regard

to logic or coherence or even rules of grammar. He could add that

his denial was to be correlated with his special defenses, where he

concentrated on points not previously admitted. That is the most

that can be said of his performance, and it is not enough. For even

if such be the case, Attorney Busmente had not exculpated himself.

He was of course expected to defend his client's cause with zeal,

but not at the disregard of the truth and in defiance of the clear

purpose of labor statutes. He ought to remember that his obligation

as an officer of the court, no less than the dignity of the profession,

requires that he should not act like an errand-boy at the beck and

call of his client, ready and eager to do his every bidding. If he failsto keep that admonition in mind, then he puts into serious question

his good standing in the bar.

CONCURRING OPINION (Barredo,J.)

No doubt, as things stand now, the remedy pursued by petitioners

is not the appropriate one. The ground of dismissal upheld by the

trial court was in essence res judicata. Ordinarily, against such

dismissal, the remedy is appeal and, of course, such an appeal

cannot be stopped by prohibition. And if only because the Court ofAppeals has not been given any opportunity at all to pass on its

own alleged lack of jurisdiction, the present action would seem to

be premature.

From another point of view, however, it is quite obvious that to

allow the respondent Court of Appeals to entertain respondent's

appeal would be sanctioning, as the main opinion finds, the

apparently endless ingenious schemes, if judicial, of respondent to

further delay the execution of the subject judgment which became

final and executory almost two years ago after a protracted

litigation that started way back in 1961, since thirteen yesteryears

from now. Law and justice demand that petitioners should not be

further denied the fruit of their legal efforts, to secure redress,

particularly because in the order of the Industrial Court denying

respondent's motion to recall the writ of execution against Cosmos

Foundry Shop, the court found said Shop and respondent to have

indulged in a simulated transaction covering the properties in

question purposely to avoid satisfaction of the judgment in favor of

petitioners.


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TERESITA B. TABILIRANv. ATTY. JOSE C. TABILIRAN, JR.

July 30, 1982, A.M. No. 906, SECOND DIVISION (Abad Santos,J.)

FACTS:

Teresita Tabiliran alleged in her complaint that her husband, Atty.

Jose C. Tabiliran, "abandoned the family home and went with

another woman by whom he have been living and whom a child was

born." Required to answer, the respondent denied the allegations

and that it was complainant who abandoned the family home

without justifiable reasons.

The case was referred to the Solicitor General. It was set for hearing,

but on the set date there was no appearance by both parties

although the Solicitor General sent an Assistant Solicitor General. It

was then resolved to consider the case submitted for decision.

ISSUE: Whether or not respondent Atty. Tabiliran should be

disbarred.

HELD: No.

Complaint DISMISSED. However, Atty. Tabiliran is subject to

reprimand by the court.

According to the findings, the complainant failed to substantiate

her claim. In fact her evidence belies her charge because a specificparagraph admits that she has left the conjugal home against the

will and without the consent of her husband. The other evidence

(letter and affidavit by the alleged paramour and certificate of

baptism of the alleged illegitimate child) offered by Teresita were

also incompetent because said exhibits cannot validly constitute

competent evidence against respondent on the ground that they

were never properly identified as nobody ever testified thereon. The

said exhibits are considered hearsay and cannot be made

admissible in court. The rule is well settled that in disbarment

proceedings, the burden of proof rests upon the complainant, and

for the court to exercise its disciplinary power, the case against the

respondent must be established by convincing proof.

The Solicitor General recommends "the exoneration of respondent

from the charges of having abandoned his family home and lived

with another woman with whom he allegedly begot a child, as

reflected in his wife's letter-complaint (Exh. "A")." The

recommendation is well-taken; accordingly, the respondent is

hereby exonerated of the charges of abandonment of family and of

immorality.

However, in the course of the investigation conducted, it turned out

that the complainant and the respondent executed a "Deed of

Settlement of Spouses To Live Separately From Bed" which contains,

among others, the following stipulation:

A. To live separately from each other in home and in

bed allowing each of the other spouse to live with

another man or woman as the case may be without

the objection and intervention of the other.

It is obvious that except for the first part, the stipulation is contrary

to law, morals and public policy and the respondent who is a lawyer

should have perceived the contrariety.

In view of the foregoing, the Solicitor General recommends that the

respondent be reprimanded only which we hereby do.


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ENCARNACION BANOGON, ZOSIMA MUNOZ, and DAVIDINA

MUNOZv.

MELCHOR ZERNA, CONSEJO ZERNA DE CORNELIO, FRANCISCO

ZERNA, and the HON. CIPRIANO VAMENTA, JR., Judge of the

Court of First Instance of Negros Oriental (Branch III)

October 9, 1987, G.R. No. L-35469, FIRST DIVISION (Cruz,J.)

FACTS:

Important to consider are the stretched time lapses in the filing of

motions in this case:

- February 9, 1926 (61 years ago), the original decision was

rendered by the cadastral court.

- March 6, 1957 (31 years later), a motion to amend the same

was filed.

- March 18, 1957, a petition for review was filed.

-

March 26, 1957, an opposition thereto was filed.- October 11, 1971 (14 years later), a motion to dismiss the

petition was filed.

- December 8, 1971, the motion to dismiss was granted.

- February 14, 1972, the motion for reconsideration was

denied.

Hence, this petition for certiorari to question the abovementioned

orders.

The petitioners contend that the said judgment had not yet becomefinal and executory because the land in dispute had not yet been

registered in favor of the private respondents. The said judgment

would become so only after one year from the issuance of the

decree of registration. If any one was guilty of laches, it was the

private respondents who had failed to enforce the judgment by

having the land registered pursuant thereto.

For their part, the private respondents argue that the decision of

February 9, 1926, became final and executory after 30 days, same

not having been appealed by the petitioners during that period.

They slept on their rights for 31 yearsbefore it occurred to them to

question the judgment of the cadastral court. In fact, their alleged

predecessor-in-interest, Filomeno Banogon, lived for 19 more

years after the 1926 decision and did not see fit to challenge it until

his death in 1945. The herein petitioners themselves waited

anothertwelve years, or until 1957, to file their petition for review.

ISSUE: Whether or not the judgment became final and executory.

HELD: Yes.

Petition DENIED. Decision IMMEDIATELY EXECUTORY.

The respondent court dismissed the petition for review of the

decision rendered in 1926 on the ground that it had been filed out

of time, indeed thirty one years too late. Laches, it was held, had

operated against the petitioners.

While arguing that they were not guilty of lachesbecause the 1926

decision had not yet become final and executory because the land

subject thereof had not yet been registered, the petitioners

rationalize: "If an aggrieved party is allowed the remedy of re-

opening the case within one year after the issuance of the decree,why should the same party be denied this remedy before the decree

is issued?

Why not indeed? Why then did they not file their petition earlier?

Why do they now pretend that they have all the time in the world

because the land has not yet been registered and the one-year

reglementary period has not yet expired?


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A reading thereof will show that it is against their contentions and

that under this doctrine they should not have delayed in asserting

their claim of fraud. Their position is clearly contrary to law and

logic and to even ordinary common sense.

This Court has repeatedly reminded litigants and lawyers alike:

"Litigation must end and terminate sometime and

somewhere, and it is assent essential to an effective

and efficient administration of justice that, once a

judgment has become final, the winning party be not,

through a mere subterfuge, deprived of the fruits of

the verdict. Courts must therefore guard against any

scheme calculated to bring about that result.

Constituted as they are to put an end to

controversies, courts should frown upon any attempt

to prolong them."

Regarding the argument that the private respondents took fourteen

years to move for the dismissal of the petition for review, it suffices

to point out that an opposition thereto had been made as early as

March 26, 1957, or nine days after the filing of the petition.

Moreover, it was for the petitioners to move for the hearing of the

petition instead of waiting for the private respondents to ask for its

dismissal. After all, they were the parties asking for relief, and it

was the private respondents who were in possession of the land indispute.

As officers of the court, lawyers have a responsibility to assist in

the proper administration of justice. They do not discharge this

duty by filing pointless petitions that only add to the workload of

the judiciary, especially this Court, which is burdened enough as it

is. A judicious study of the facts and the law should advise them

when a case, such as this, should not be permitted to be filed to

merely clutter the already congested judicial dockets. They do not

advance the cause of law or their clients by commencing litigations

that for sheer lack of merit do not deserve the attention of the

courts.


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CORAZON PERIQUETv.

NLRC and THE PHIL. NATIONAL CONSTRUCTION CORPORATION

(Formerly Construction Development Corp. of the Phils.)

June 22, 1990, G.R. No. 91298, FIRST DIVISION (Cruz,J.)

FACTS:

Corazon Periquet was a toll collector dismissed from work by the

Construction Development Corporation of the Philippines for willful

breach of trust and unauthorized possession of accountable toll

tickets allegedly found in her purse during an unannounced

inspection. She files a complaint for illegal dismissal claiming a

frame-up. The labor arbiter ruled in her favor. An order for

reinstatement was issued. The order was affirmed in totoduring an

appeal by the NLRC.

The original decision called for her reinstatement, but there is noevidence that she demanded her reinstatement or that she

complained when her demand was rejected. What appears is that

she entered into a compromise agreement with CDCP where she

waived her right to reinstatement and received from the CDCP

money representing her back wages.

Dismissing the compromise agreement, the petitioner now claims

she was actually reinstated only on a later date, and so should be

granted back pay. After accepting backwages from the private

respondent and waiving her right to reinstatement, the petitionersecured employment as kitchen dispatcher at the Tito Rey

Restaurant. According to the certification issued by that

business, she received a monthly compensation higher than her

salary in the CDCP.

For reasons not disclosed by the record, she applied for re-

employment with the CDCP and was given the position of xerox

machine operator with a basic salary lower than her previous job as

a kitchen dispatcher at Tito Rey Restaurant.

Later on, she wrote the new management of the CDCP and asked

that the rights granted her by the decision be recognized because

the waiver she had signed was invalid. The Corporate Legal Counsel

of the private respondent recommended instead a money

settlement to the petitioner. This was accepted by Corazon and she

signed another quitclaim and release.

The petitioner was apparently satisfied with the settlement because

she sent a memorandum expressing gratitude and appreciation

towards the private respondent. The private respondent also

responded favorably to her inquiry about longevity pay, thus

adjusting her monthly salary to a higher rate.

It is perplexing that she subsequently filed a motion for execution

after some time. The same was granted. However, on a later date,

the order was reversed by the NRLC as well as the writ of execution.

It held that the motion for execution was filed beyond the

prescriptive period of 5 years. It also held as valid the 2 quitclaims

signed by Corazon waiving her right to reinstatement and

acknowledging settlement of her backwages and other benefits.

Corazon contends that said decision was tainted with grave abuse

of discretion.

Hence, this petition.

ISSUE: Whether or not the motion for execution should be

granted.

HELD: No.

Petition DENIED.


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Periquet insists it was the private respondent that delayed and

prevented the execution of the judgment in her favor, but that is

not the way we see it. The record shows it was she who dilly-dallied.

It is difficult to understand the attitude of the petitioner, who has

blown hot and cold, as if she does not know her own mind. First she

signed a waiver and then she rejected it; then she signed another

waiver which she also rejected, again on the ground that she had

been deceived. In her first waiver, she acknowledged full settlement

of the judgment in her favor, and then in the second waiver, after

accepting additional payment, she again acknowledged full

settlement of the same judgment. But now she is singing a different

tune.

In her petition she is now disowning both acknowledgments and

claiming that the earlier payments both of which she had acceptedas sufficient, are insufficient. They were valid before but they are

not valid now. She also claimed she was harassed and cheated by

the past management of the CDCP and sought the help of the new

management of the PNCC under its "dynamic leadership." But now

she is denouncing the new management-for also tricking her into

signing the second quitclaim.

Not all waivers and quitclaims are invalid as against public policy. If

the agreement was voluntarily entered into and represents a

reasonable settlement, it is binding on the parties and may not laterbe disowned simply because of a change of mind. It is only where

there is clear proof that the waiver was wangled from an

unsuspecting or gullible person, or the terms of settlement are

unconscionable on its face, that the law will step in to annul the

questionable transaction. But where it is shown that the person

making the waiver did so voluntarily, with full understanding of

what he was doing, and the consideration for the quitclaim is

credible and reasonable, the transaction must be recognized as a

valid and binding undertaking. As in this case.

As officers of the court, counsel are under obligation to advise their

clients against making untenable and inconsistent claims like the

ones raised in this petition that have only needlessly taken up the

valuable time of this Court, the Solicitor General, the Government

Corporate Counsel, and the respondents. Lawyers are not merely

hired employees who must unquestioningly do the bidding of the

client, however unreasonable this may be when tested by their own

expert appreciation of the pertinent facts and the applicable law

and jurisprudence. Counsel must counsel.


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VICTORIA LEGARDA v.

THE HONORABLE COURT OF APPEALS, NEW CATHAY HOUSE,

INC., THE HONORABLE REGIONAL TRIAL COURT OF QUEZON

CITY, BRANCH 94

FACTS:

Petitioner Victoria Legarda owned a parcel of land and its

improvements located at West Avenue, Quezon City. Respondent

New Cathay House, Inc. filed a complaint against the Legarda for

specific performance with preliminary injunction and damages in

the RTC of Quezon City. The complaint alleged that Legarda entered

into a lease agreement with the New Cathay over the said property

for a period of 5 years. It also alleged that New Cathay made a

downpayment of rentals but Legarda refused to execute and sign

the written contract prepared by the respondent despite demands.

Respondent suffered damages due to the delay in the renovationand opening of its restaurant business. A writ of preliminary

injunction was prayed for to prevent Legarda and her agents from

stopping the renovation and other activities of New Cathay on the

said property.

Petitionerscounsel filed his appearance with an urgent motion for

extension of time to file the answer. However, an answer was not

filed within the extended period. Respondents counsel filed a

motion to declare petitioner in default that was granted by the trial

court.

The subject property was sold at a public auction to Roberto

Cabrera, Jr., representative of respondent. The same was not

redeemed within the 1-year redemption period, hence ownership

was consolidated in the name of Cabrera, Jr. The final deed of sale

was also registered with the Register of Deeds.

Petitioners counsel filed a petition for annulment of judgment in

the Court of Appeals. They contended that they have entered into a

compromise agreement with respondent, stipulating that there was

no need to file an answer anymore. Because of this, they allege that

misrepresentation and fraud were employed by the respondent and

its counsel which deprived petitioner to prepare for her defense.

This petition was subsequently amended raising a new issue that

the assailed decision finds no support from the allegations in the

pleadings or evidence on record. The Court of Appeals denied the

petition. No motion for reconsideration or appeal was filed making

the decision final.

When petitioner belatedly learned about the adverse decision, she

hired a new lawyer to file this present petition for certioraripraying

that the previous court decisions and the sale at the public auction

be annulled for the reason that the fault is due to the petitionersformer counsel. Such being the case, the petitioner should not be

bound by her former counsels hapless mistakes brought about by

gross negligence and inefficiency; otherwise, she will be denied due

process.

ISSUE: Whether or not Victoria Legarda should be bound by her

former counsels gross negligence and inefficiency.

HELD: No.

Petition GRANTED.

Nothing is more settled than the rule that the mistake of a counsel

binds the client. It is only in case of gross or palpable negligence of

counsel when the courts must step in and accord relief to a client

who suffered thereby.


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Petitioner's counsel is a well-known practicing lawyer and dean of a

law school. It is to be expected that he would extend the highest

quality of service as a lawyer to the petitioner. Unfortunately,

counsel appears to have abandoned the cause of petitioner. After

agreeing to defend the petitioner in the civil case filed against her

by private respondent, said counsel did nothing more than enter his

appearance and seek for an extension of time to file the answer.

Nevertheless, he failed to file the answer. Hence, petitioner was

declared in default on motion of private respondent's counsel. After

the evidence of private respondent was received ex-parte, a

judgment was rendered by the trial court.

Said counsel for petitioner received a copy of the judgment but took

no steps to have the same set aside or to appeal therefrom. Thus,

the judgment became final and executory. During all the time, the

petitioner was abroad. When, upon her return, she learned, to hergreat shock, what happened to her case and property, she

nevertheless did not lose faith in her counsel. She still asked Atty.

Coronel to take such appropriate action possible under the

circumstances.

As above related, said counsel filed a petition for annulment of

judgment and its amendment in the Court of Appeals. But that was

all he did. After an adverse judgment was rendered against

petitioner, of which counsel was duly notified, said counsel did not

inform the petitioner about it. He did not even ask for areconsideration thereof, or file a petition for review before this

Court. Thus, the judgment became final. It was only upon repeated

telephone inquiries of petitioner that she learned from the secretary

of her counsel of the judgment that had unfortunately become final.

A lawyer owes entire devotion to the interest of his client, warmth

and zeal in the maintenance and defense of his rights and the

exertion of his utmost learning and ability, to the end that nothing

can be taken or withheld from his client except in accordance with

the law. He should present every remedy or defense authorized by

the law in support of his client's cause, regardless of his own

personal views. In the full discharge of his duties to his client, the

lawyer should not be afraid of the possibility that he may displease

the judge or the general public.

While this Court is cognizant of the rule that, generally, a client will

suffer the consequences of the negligence, mistake or lack of

competence of his counsel, in the interest of justice and equity,

exceptions may be made to such rule, in accordance with the facts

and circumstances of each case. Adherence to the general rule

would, in the instant case, result in the outright deprivation of their

property through a technicality.

As member of the Philippine Bar he owes complete fidelity to thecause of his client. He should give adequate attention, care and time

to his cases. This is the reason why a practicing lawyer should

accept only so many cases he can afford to handle. And once he

agrees to handle a case, he should undertake the task with

dedication and care. If he should do any less, then he is not true to

his oath as a lawyer.


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ISMAELA DIMAGIBAv.

ATTY. JOSE MONTALVO, JR.

October 15, 1991, Adm. Case No. 1424, EN BANC (Per Curiam*)

*Unanimous decision or almost a majority

FACTS:

A case for Probate of Will of the deceased Benedicta de los Reyes

was instituted before the CFI of Bulacan by Ismaela Dimagiba,

regarding a property also subject of the annulment of sale.

Fortunately, the latter case was terminated which allowed the

probate of the will. The oppositors (Dionisio Fernandez, Eusebio

Reyes, Luisa Reyes, Mariano Reyes, Cesar Reyes, and Leonor Reyes)

represented by Atty. Jose Montalvo, Jr. appealed to the Higher

Court of the Philippines. It was decided by the Hon. Supreme Court

of the Philippines affirming the decision of the trial court.

The same oppositors filed another complaint for the annulment of

the will through their counsel Atty. Centeno. The complaint was

dismissed. Still aggrieved, they again filed a complaint for the

annulment of the will that was dismissed again by the court.

Another case was again filed by the same oppositors, this time a

partition of the subject property mentioned in the probate

proceedings. This was also dismissed by the court.

Another case for specific performance by the same oppositors

through Atty. Montalvo, Jr. that was dismissed by the court. This

case was remanded to the Court of Appeals by the CFI of Bulacan.

Again, another case was filed by them through Atty. Montalvo, Jr.

which is pending before the CFI of Bulacan.

In view of these numerous cases, Dimagiba decided to report the

said actions of Atty. Montalvo, Jr. which caused harassment on her

part to the Supreme Court.

The High Court required Atty. Montalvo, Jr. to file an answer within

10 days from notice. In his answer, he claimed that the complaints

were proper and that Dimagiba only wanted to intimidate him

because she refused to be bound by the courts decision. Dimagiba,

in her rejoinder, reiterated the reasons (res judicata and similarity

of causes of action and parties, etc.) why the numerous complaints

and petitions filed by the oppositors represented by Atty. Montalvo,

Jr. were dismissed.

The case was referred to the Solicitor General following the

procedure involving disciplinary cases against lawyers.

ISSUE: Whether or not Atty. Montalvo, Jr. should be disbarred.

HELD: Yes.

Respondent Atty. Montalvo, Jr. is hereby declared DISBARRED.

Clearly, the respondent Montalvo, Jr. repetitively filed several

complaints in various forms involving the same parties and the

same subject matter, persistently raising issues long laid to rest by

final judgment.

This misbehavior in facie curia (in the presence of the

court)consisting of a stubborn refusal to accept this Court's

pronouncements is in fact even summarily punishable under Rule

71, Section 1 of the Rules of Court.

Any lawyer who assumes the responsibility for a client' cause has

the duty to know the entire history of a case, specially if any


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litigation has commenced. In the case at bar, even Atty. Montalvo

does not deny the fact that the probate of the will of the late

Benedicta de los Reyes has been an over-extended an contentious

litigation between the heirs.

A lawyer should never take advantage of the seemingly endless

channels left dangling by our legal system in order wangle the

attention of the court. Atty. Montalvo may have thought that lie

could get away with his indiscriminate filing o suits that were

clearly intended to harass Ismaela Dimagiba. When court dockets

get clogged and the administration of justice is delayed, our judicial

system may not be entirely blameless, yet the greater fault lies in

the lawyers who had take their privilege so lightly, and in such

mindless fashion.

The Code of Professional Responsibility states that:

Rule 1.01 A lawyer shall not engage in unlawful,

dishonest immoral or deceitful conduct.

Rule 1.03 A lawyer shall not for any corrupt

motive or interest encourage any suit or proceeding

or delay any man's cause.

On the basis of the foregoing, we find him guilty of malpractice as

charged. He has violated his oath not to delay any matter for moneyor malice, besmirched the name of an honorable profession, and

has proven himself unworthy of the trust repose in him by law as

an officer of the Court. We have not countenanced other less

significant infractions among the ranks of our lawyers. He deserves

the severest punishment of DISBARMENT.

MYRNA D. ROQUE and ROBERTO P. CRUZADOv.

ATTY. FELICIANO B. CLEMENCIO

August 14, 1992, A.M. No. 3187, FIRST DIVISION (Bellosillo,J.)

FACTS:

Myrna Roque and Roberto Cruzado filed a complaint against Atty.

Feliciano Clemencio charging him with gross misconduct and

oppression. It was referred to the Integrated Bar of the Philippines

for investigation, report and recommendation.

Atty. Clemencio was a legal officer of the Commission on Audit. He

was appointed to investigate to investigate charges filed by herein

petitioner Roque against Panelo, a COA official. It was alleged in the

complaint that Atty. Clemencio exhibited bias and partiality

amounting to abuse of discretion when he was seen hanging out

with the counsel of Panelo at a restaurant/beerhouse; that the casealmost lasted a year in his office; that he conspired with Atty.

Tablang to whom the case was re-assigned when he was relieved of

the same; and that he drafted the decision against Panelo even after

his relief being the investigator of the case.

He was also charged of threatening a subordinate Roberto Cruzado,

the other complainant, after summoning him.

In his answer, Atty. Clemencio denied the allegations.

The IBP dismissed the complaint for lack of merit.

Hence, this petition.

ISSUE: Whether or not Atty. Clemencio should be disbarred.

HELD: No.


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Atty. Clemencio is hereby CENSURED for his conduct and is

WARNED that repetition of the same or similar act shall be dealt

with more severely.

We differ from the findings and recommendation of the IBP.

Although there may not be sufficient evidence to prove that

respondent Atty. Feliciano B. Clemencio acted with abuse of

discretion resulting in gross misconduct, We believe nevertheless

that he displayed ethical infractions.

Undisputedly, as specified in COA Office Order No. 86-

9877, respondent was tasked to conduct the formal investigation in

Adm. Case No. 86-884 filed by complainant Roque against Panelo,

and thereafter to submit his findings and recommendation. What

facts to include or exclude in his report, his findings and how to

support them as well as his recommendation all these necessarilyentail the exercise of sound discretion and impartial judgment.

Admittedly, it was respondent himself who drafted the decision in

the case, which draft became the basis for the final adjudication

adopted by the COA. Indeed, the manner of presenting the facts and

the consequent recommendation can influence the reviewing

authority. In fact, a perusal of both the draft decision submitted by

respondent and the decision finally adopted by the COA would

reveal that, except for the difference in the penalties imposed, the

final decision had all the earmarks of the preliminary draft. Thus,respondent should have refrained from drinking and dining with

Panelo's counsel. It is a rule of general application that an attorney

(much more an investigator, as in the case of respondent) should

avoid, if not altogether eliminate, even the slightest appearances of

impropriety.

Moreover, we find it difficult to believe that the reason why

complainant Cruzado was "invited" to report to the Security Affairs

Service Unit was precisely to protect his rights, as claimed by

respondent. When a lowly employee is summoned to appear before

the Chief Security Officer and there questioned by a lawyer who is

his superior, and who happens in this case to be respondent

himself, and warned of dismissal from employment, a possible

litigation and its dire consequences, that employee is, in effect,

under threat or intimidation.

Here, We take into serious account the fact that respondent is a

lawyer, a superior who threatened a subordinate complainant with

dismissal and a court suit. A man of the law should never use his

legal expertise and influence in order to frighten or coerce anyone,

specially the ordinary man who looks up to him for justice.

Thus, We remind respondent Atty. Feliciano B. Clemencio of his

duties and responsibilities as a lawyer. Rule 1.01, Canon 1 of theCode of Professional Responsibility provides that a lawyer shall not

engage in unlawful, immoral or deceitful conduct. A member of the

Bar must act with integrity, honesty and professional decorum. He

must comport himself in a manner which will secure and preserve

the respect and confidence of the public. Both his professional and

personal conduct must he kept beyond reproach and above

suspicion. He is required not only in fact to be of good moral

character, but must also be seen to be leading a life in accordance

with the highest moral standards of the community. His

deportment should be characterized by candor, competence andfairness. One of his duties is to maintain the high ethical standards

of the legal profession. Accordingly, respondent must be censured

for his failure to comply with the ethical standards required of

members of the Bar as officers of the Court.


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