legal ethics

A.C. No. 3523 January 17, 2005

RASMUS G. ANDERSON, JR., petitioner,

vs.

ATTY. REYNALDO A. CARDEÑO, respondent.

Administrative case against Atty. Reynaldo A. Cardeño for malpractice and neglect of duty, stemming from his alleged neglect or deliberate mishandling of a case.

Held: SUSPENDED (6) months and WARNED that any similar infraction in the future will be dealt with more severely.

Thus, respondent’s defenses that the complainant was "uncooperative" as a client, that the voluminous records turned over to him were in disarray, and that the complainant did not disclose to him certain particulars of the case, are all unavailing. Thus, in view of the fact that he remained counsel of recordfor the complainant, it was highly irregular for him to entrust the filing of the Motion for Reconsideration to other people who did not lawfully appear interested in the subject litigation.

As a lawyer representing the cause of his client, he should have taken more control over the handling of the case.

“Respondent should know that as a lawyer, he owes fidelity to the cause of his client. When a lawyer accepts a case, his acceptance is an implied representation that he possesses the requisite academic learning, skill and ability to handle the case. The lawyer has the duty to exert his best judgmentin the prosecution or defense of the case entrusted to him and to exercise reasonable and ordinary care and diligence in the pursuit or defense of the case.”

[A.M. No. 5925. March 11, 2003]

RUBY MAE BARNACHEA, complainant, vs. ATTY. EDWIN T. QUIOCHO, respondent.

Complainant engaged the legal services of respondent for the latter to cause the transfer under her name of the title over a property previously owned by her sister. Complainant was able to pay respondent for legal fees.

Respondent failed. Complainant demanded that respondent refund to her the legal fees and return the documents which she earlier entrusted to him. However, respondent failed to comply with said demands.

Held: SUSPENDED for 1 year; repetition of violation will be dealt severely. PAY the complainant.

Even if it were true that no attorney-client relationship existed between them,case law has it that an attorney may be removed or otherwise disciplined not only for malpractice and dishonesty in the profession but also for gross misconduct not connected with his professional duties, making him unfit for the office and unworthy of the privileges which his license and the law confer upon him.

A lawyer is obliged to hold in trust money or property of his client that may come to his possession. The conversion by a lawyer funds entrusted to him by his client is a gross violation of professional ethics and a betrayal of public confidence in the legal profession.

“The relation of attorney and client is highly fiduciary in nature and is of a very delicate, exacting and confidential character. A lawyer is duty-bound to observe candor, fairness and loyalty in all his dealings and transactions with his clients. The profession, therefore, demands of an attorney an absolute abdication of every personal advantage conflicting in any way, directly or indirectly, with the interest of his client. In this case, respondent miserably failed to measure up to the exacting standard expected of him.”

[A.C. No. 4349. December 22, 1997]

LOURDES R. BUSIÑOS, complainant, vs. ATTY. FRANCISCO RICAFORT, respondent.

Complainant charged respondent with having committed the crime of estafa by misappropriating the sum of P32,000.00. Of this amount, P30,000.00 was entrusted to respondent for deposit in the bank account of complainant’s husband, while P2,000.00 represented the amount respondent demanded from complainant supposedly for a bond in a Civil Case when no such bond was required. Respondent did not appear in the administrative proceedings toclear his name. Respondent was able to pay the amount, complainant withdrew the estafa case but proceeded with the administrative case.

Held: DISBARRED. There is no doubt that respondent is guilty of having used the money of his clients without their consent. Money collected by a lawyer inpursuance of a judgment in favor of his clients is held in trust and must be immediately turned over to them

Respondent, by converting the money of his clients to his own personal use without their consent , and by deceiving the complainant into giving him the

amount of P2,000.00 purportedly to be used as a bond which was not required, is, undoubtedly, guilty of deceit, malpractice and gross misconduct. By so doing, he betrays the confidence reposed in him by his clients. Not onlyhas he degraded himself but as an unfaithful lawyer he has besmirched the fair name of an honorable profession.

“When an attorney unjustly retains in his hands money of his client after it has been demanded he may be punished for contempt as an officer of the Court who has misbehaved in his official transactions; but proceedings under this section shall not be a bar to a criminal prosecution.”

[A. C. No. 5485. March 16, 2005]

ELMER CANOY, complainant, vs. ATTY. JOSE MAX ORTIZ, respondent.

Canoy was among those low-income clients whom Atty. Ortiz deigned to represent. He claims having prepared the position paper of Canoy, but before he could submit the same, the Labor Arbiter had already issued the order dismissing the case. Atty. Ortiz admits though that the period within which to file the position paper had already lapsed. He attributes this failure to timely file the position paper to the fact that after his election as Councilor because he was too busy.” Eventually, he withdrew from his other cases and his free legal services. Complainant filed this complaint but later on withdrew .

Held: SUSPENDED: (1) month, with WARNING that a repetition of the same

negligence will be dealt with more severely.

Still, the severance of the relation of attorney-client is not effective until a notice of discharge by the client or a manifestation clearly indicating that purpose is filed with the court or tribunal, and a copy thereof served upon theadverse party, and until then, the lawyer continues to be counsel in the case.

Assuming that Atty. Ortiz was justified in terminating his services, he, however, cannot just do so and leave complainant in the cold unprotected. Indeed, Rule 22.02 requires that a lawyer who withdraws or is discharged shall, subject to a lien, immediately turn over all papers and property to which the client is entitled, and shall cooperate with his successor in the orderly transfer of the matter. Atty. Ortiz claims that the reason why he took no further action on the case was that he was informed that Canoy had acquired the services of another counsel. Assuming that were true, there wasno apparent coordination between Atty. Ortiz and this new counsel.

“There are no good reasons that would justify a lawyer virtually abandoning the cause of the client in the midst of litigation without even informing the client of the fact or cause of desertion. That the lawyer forsook his legal practice on account of what might be perceived as a higher calling, election to public office, does not mitigate the dereliction of professional duty. Suspension from the practice is the usual penalty, and there is no reason to deviate from the norm in this case.”

[A.C. No. 5817. May 27, 2004]

EMMA V. DE JUAN, complainant, vs. ATTY. OSCAR R. BARIA III, respondent.

Petitioner was terminated without notice or explanation so she filed a complaint before the NLRC against the company for illegal dismissal. In search of a lawyer, she asked the assistance of BBC which assigned respondent to handle her labor case. On December 29, 1999, the Labor Arbiter rendered a decision in favor of complainant. The Company appealed to the NLRC. In a decision promulgated on September 24, 2001, the NLRC reversed the Labor Arbiter and declared there was no illegal dismissal.

Complainant blamed respondent for the reversal. She said that she came to know of the reversal of the Labor Arbiter’s decision when she called respondent in October 2001. When she asked the respondent what they should do, respondent answered, “Paano iyan iha…eh…hindi ako marunong gumawa ng Motion for Reconsideration.”

Issue: The core issue is whether the respondent committed culpable negligence, as would warrant disciplinary action, in failing to file for the complainant a motion for reconsideration from the decision of the NLRC.

Held: FINED with WARNING that a repetition of the same will be dealt with severely.

No lawyer is obliged to advocate for every person who may wish to become his client, but once he agrees to take up the cause of a client, the lawyer owes fidelity to such cause and must be mindful of the trust and confidence reposed in him. Further, among the fundamental rules of ethics is the principle that an attorney who undertakes an action impliedly stipulates to carry it to its termination, that is, until the case becomes final and executory. A lawyer is not at liberty to abandon his client and withdraw his services without reasonable cause and only upon notice appropriate in the circumstances. Any dereliction of duty by a counsel, affects the client. This means that his client is entitled to the benefit of any and every remedy and defense that is authorized by the law and he may expect his lawyer to assert every such remedy or defense.

The records reveal that indeed the respondent did not file a motion for reconsideration of the NLRC such that the said decision eventually had become final and executory. Respondent does not refute this. His excuse that he did not know how to file a motion for reconsideration is lame and unacceptable. After complainant had expressed an interest to file a motion for reconsideration, it was incumbent upon counsel to diligently return to his books and re-familiarize himself with the procedural rules for a motion for reconsideration. Filing a motion for reconsideration is not a complicated legal task.

We are however, not unaware that respondent had been forthright and candid with his client when he warned her of his lack of experience as a new lawyer. We are also not unaware that he had advised complainant to get a new lawyer. However, his candor cannot absolve him. Without a proper revocation of his authority and withdrawal as counsel, respondent remains counsel of record and whether or not he has a valid cause to withdraw from the case, he cannot just do so and leave his client out in the cold. An attorneymay only retire from the case either by a written consent of his client or by permission of the court after due notice and hearing, in which event the attorney should see to it that the name of the new attorney is recorded in thecase. Respondent did not comply with these obligations.

“Negligence of lawyers in connection with legal matters entrusted to them forhandling shall render them liable.”

A.C. No. 5162 March 20, 2003

EMILIANO COURT TOWNHOUSES HOMEOWNERS ASSOCIATION, complainant,

vs.

ATTY. MICHAEL DIONEDA, respondent.

ECTHA and respondent entered into a Retainer’s Agreement wherein respondent lawyer agreed to handle the case of the complainant for P20,000.00 as attorney’s fees and P1,000.00 as appearance fee per hearing. It was further agreed that respondent lawyer would update the complaint andwork on the development of the case.

Respondent failed to do such. Demands to give back the money were made but to no avail, thus this administrative charge. Despite due notice,

respondent never attended the IBP administrative hearings.

Held: SUSPENDED for six (6) months, with WARNING that repetition of the same will merit more severe penalty, and is ORDERED to RETURN to complainant their money with interest.

A LAWYER OWES FIDELITY to the cause of his client mindful always of the trust and confidence reposed in him. An attorney-at-law must serve his client with competence and diligence at all times, and never neglect a legal matter entrusted to him, for it is his sworn duty to delay no man for money or maliceand to conduct himself in a proper manner not just to his client, but also to the court, the legal profession and society at large.

Respondent’s lamentable attitude towards his client’s case is clearly evident from his apparent disinterest in his own case for disbarment. Dioneda never bothered to present evidence in his defense. He disregarded all notices sent to him by the IBP Commission on Bar Discipline, which were personally served at his office address. He never appeared before the Commission despite several opportunities to do so and explain his side.

“The primary objective of administrative cases against lawyers is not only to punish and discipline the erring individual lawyers but also to safeguard the administration of justice by protecting the courts and the public from the misconduct of lawyers, and to remove from the legal profession persons whose utter disregard of their lawyer's oath has proven them unfit to continue discharging the trust reposed in them as members of the bar. A lawyer may be disbarred or suspended for misconduct, whether in his professional or private capacity, which shows him to be wanting in moral character, honesty, probity and good demeanor or unworthy to continue as an officer of the court.”

[A.C. No. 1526. January 31, 2005]

NAZARIA S. HERNANDEZ (DECEASED), SUBSTITUTED BY LUCIANO S. HERNANDEZ, JR., complainant, vs. ATTY. JOSE C. GO, respondent.

Complainant engaged respondent’s services, she entrusted to him her land titles and allowed him to sell her lots, believing that the proceeds thereof would be used to pay her creditors. Respondent abused her trust and confidence when he did not sell her properties to others but to himself and spent his own money to pay her obligations. Obviously, had he sold the lots to other buyers, complainant could have earned more. Records show that shedid not receive any amount from respondent.

Held: DISBARRED. “A lawyer shall hold in trust all moneys and properties of his client that may come into his possession.”

Such conduct on the part of respondent degrades not only himself but also the name and honor of the legal profession. He violated this Court’s mandate

that lawyers must at all times conduct themselves, especially in their dealing with their clients and the public at large, with honesty and integrity in a manner beyond reproach.

“A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him.”

Membership in the legal profession is a privilege. When it appears that an attorney is no longer worthy of the trust and confidence of his clients and the public, it becomes not only the right but also the duty of this Court to withdraw the privilege. Respondent, by his conduct, blemished not only his integrity as a member of the Bar, but also the legal profession.

Public interest requires that an attorney should exert his best efforts and ability to protect the interests of his clients. A lawyer who performs that duty with diligence and candor not only protects his client’s cause; he also serves the ends of justice and does honor to the bar and helps maintain the respect of the community to the legal profession.

G.R. No. L-961 September 21, 1949

BLANDINA GAMBOA HILADO, petitioner,

vs.

JOSE GUTIERREZ DAVID, VICENTE J. FRANCISCO, JACOB ASSAD and SELIM JACOB ASSAD, respondents.

Petitioner alleged that she and the counsel for the defendant had an attorney-client relationship with her when, before the trial of the case, she went to defendant’s counsel, gave him the papers of the case and other information relevant thereto, although she was not able to pay him legal fees.“That respondent’s law firm mailed to the plaintiff a written opinion over his signature on the merits of her case; that this opinion was reached on the basis of papers she had submitted at his office; that Mrs. Hilado's purpose in

submitting those papers was to secure Attorney Francisco's professional services.” Atty. Francisco appeared as counsel for defendant and plaintiff did not object to it until (4) months after. Then, plaintiff moved to dismiss the case between her and defendant.

Issue: Was there an attorney-client relationship between plaintiff and Atty. Francisco?

Held: YES. In order to constitute the relation a professional one and not merely one of principal and agent, the attorneys must be employed either to give advice upon a legal point, to prosecute or defend an action in court of justice, or to prepare and draft, in legal form such papers as deeds, bills, contracts and the like.

To constitute professional employment it is not essential that the client shouldhave 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.

“An attorney is employed-that is, he is engaged in his professional capacity asa lawyer or counselor-when he is listening to his client's preliminary statement of his case, or when he is giving advice thereon, just as truly as when he is drawing his client's pleadings, or advocating his client's cause in open court. An acceptance of the relation is implied on the part of the attorney from his acting in behalf of his client in pursuance of a request by the latter.”

That only copies of pleadings already filed in court were furnished to AttorneyAgrava and that, this being so, no secret communication was transmitted to him by the plaintiff, would not vary the situation even if we should discard Mrs. Hilado's statement that other papers, personal and private in character,

were turned in by her. Precedents are at hand to support the doctrine that themere relation of attorney and client ought to preclude the attorney from accepting the opposite party's retainer in the same litigation regardless of what information was received by him from his first client.

An attorney, on terminating his employment, cannot thereafter act as counselagainst his client in the same general matter, even though, while acting for his former client, he acquired no knowledge which could operate to his client's disadvantage in the subsequent adverse employment

"A retaining fee is a preliminary fee given to an attorney or counsel to insure and secure his future services, and induce him to act for the client. It is intended to remunerate counsel for being deprived, by being retained by one party, of the opportunity of rendering services to the other and of receiving pay from him, and the payment of such fee, in the absence of an express understanding to the contrary, is neither made nor received in payment of the services contemplated; its payment has no relation to the obligation of the client to pay his attorney for the services which he has retained him to perform."

[A.C. No. 5804. July 1, 2003]

BENEDICTO HORNILLA and ATTY. FEDERICO D. RICAFORT, complainants, vs. ATTY. ERNESTO S. SALUNAT, respondent.

An SEC Case was filed by the PPSTA against its own Board of Directors. Respondent admits that the ASSA Law Firm, of which he is the Managing Partner, was the retained counsel of PPSTA. Yet, he appeared as counsel of record for the respondent Board of Directors in the said case. Complainants contend that respondent was guilty of conflict of interest because he was engaged by the PPSTA, of which complainants were members, and was being paid out of its corporate funds where complainants have contributed. Despitebeing told by PPSTA members of the said conflict of interest, respondent refused to withdraw his appearance in the said cases.

Held: GUILTY of representing conflicting interests and is ADMONISHED to observe a higher degree of fidelity in the practice of his profession. WARNED

that a repetition of the same or similar acts will be dealt with more severely.

RULE 15.03. – A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts.

In other jurisdictions, the prevailing rule is that a situation wherein a lawyer represents both the corporation and its assailed directors unavoidably gives rise to a conflict of interest. The interest of the corporate client is paramount and should not be influenced by any interest of the individual corporate officials. The rulings in these cases have persuasive effect upon us. After due deliberation on the wisdom of this doctrine, we are sufficiently convinced that“a lawyer engaged as counsel for a corporation cannot represent members ofthe same corporation’s board of directors in a derivative suit brought against them. To do so would be tantamount to representing conflicting interests, which is prohibited by the Code of Professional Responsibility.”

A.C. No. 3283 July 13, 1995

RODOLFO MILLARE, petitioner,

vs.

ATTY. EUSTAQUIO Z. MONTERO, respondent.

Complainant obtained a favorable judgment from the MTC which ordered respondent’s client to vacate the premises subject of the ejectment case. respondent as counsel, appealed the decision. CA dismissed Co's appeal fromthe decision of the RTC for failure to comply with the proper procedures. Respondent thereafter resorted to devious and underhanded means to delay the execution of the judgment rendered by the MTC adverse to his client.

Held: SUSPENDED for (1) year. Rule 12.02. — A lawyer shall not file multiple actions arising from the same cause. Rule 12.04. — A lawyer shall not unduly delay a case, impede the execution of a judgment or misuse court processes.

Under Canon 19 of the Code of Professional Responsibility, a lawyer is required to represent his client "within the bounds of the law." The Code enjoins a lawyer to employ only fair and honest means to attain the lawful objectives of his client (Rule 19.01) and warns him not to allow his client to dictate the procedure in handling the case (Rule 19.03). In short, a lawyer is not a gun for hire.

It is unethical for a lawyer to abuse or wrongfully use the judicial process, likethe filing of dilatory motions, repetitious litigation and frivolous appeals for the sole purpose of frustrating and delaying the execution of a judgment.

A judgment can be annulled only on two grounds: (a) that the judgment is void for want of jurisdiction or for lack of due process of law, or (b) that it has been obtained by fraud.

Judging from the number of actions filed by respondent to forestall the execution of the same judgment, respondent is also guilty of forum shopping.Forum shopping exists when, by reason of an adverse decision in one forum, defendant ventures to another for a more favorable resolution of his case.

[A.C. No. 5085. February 6, 2003]

PABLITO SANTOS, complainant, vs. ATTY. ALVARO BERNABE LAZARO, respondent.

Respondent failed to win the cause of his client. Failed to follow proper procedure in submitting memorandums for client with feeble excuses.

Demanded unconscionable amount of legal fees considering the grinding poverty his client.

Held: GUILTY of negligence in protecting the interest of his client. SUSPENDEDfor (6) months.

Rule 18.03 of the Code of Professional Responsibility explicitly provides that negligence of lawyers in connection with legal matters entrusted to them for handling shall render them liable. It is a basic postulate in legal ethics that when a lawyer takes a client’s cause, he covenants that he will exercise due diligence in protecting his rights. The failure to exercise that degree of vigilance and attention expected of a good father of a family makes such lawyer unworthy of the trust reposed upon him by his client and makes him answerable to him, to the courts and to society.

By neglecting to file the “memorandum/brief,” respondent set off a chain of events which eventually ended in the demolition of complainant’s home.”

Respondent’s failure to exercise due diligence in attending to the interest of complainant caused the latter material prejudice. As a lawyer, respondent was wanting in the exercise of reasonable care demanded of every member of the Bar; his measure of diligence is several notches below the standard required of his office.

[A.C. No. 4219. December 8, 2003]

LOTHAR SCHULZ, complainant, vs. ATTY. MARCELO G. FLORES, respondent.

Atty. Flores knew too little of the provisions and application of PD No. 1508 which mandates that all disputes, except those specifically cited (the dispute between Lothar Schulz and Wilson Ong not included), between and among residents of the same city or municipality should be brought first under the system of barangay conciliation before recourse to the court can be allowed. Because of respondent’s transgressions, his client was haled to court as part-defendant. Respondent also refused to return petitioner’s money in spite of his meager service.

Held: GUILTY of negligence and incompetence. SUSPENDED for (6) months. RETURN the money of complainant with interest. STERNLY WARNED that a commission of the same or similar act in the future will be dealt with more severely.

The breach of respondent’s sworn duty as a lawyer and of the ethical standards he was strictly to honor and observe has been sufficiently established. Respondent has fallen short of the competence and diligence required of every member of the Bar.

CANON 17. – A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM.

CANON 18. – A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE

Rule 18.03 – A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable.

Respondent erred in not returning complainant’s money despite demands after his failure to file the case and his devious act of compelling complainantto sign a document stating that he has no financial obligation to complainant in exchange of the return of complainant’s papers. This conduct violated the

following Canon:

CANON 15. – A LAWYER SHALL OBSERVE CANDOR, FAIRNESS, AND LOYALTY INALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENT.

Rule 16.03. – A lawyer shall deliver the funds and property of client when due or upon demand.

The failure of an attorney to return the client’s money upon demand gives rise to the presumption that he has misappropriated it for his own use to the prejudice and violation of the trust reposed in him by the client. It is not only a gross violation of the general morality as well as of professional ethics; it also impairs public confidence in the legal profession and deserves punishment. In short, it is settled that the unjustified withholding of money belonging to his client, as in this case, warrants the imposition of disciplinary action.

A lawyer must conduct himself, especially in his dealings with his clients, withintegrity in a manner that is beyond reproach. His relationship with his clientsshould be characterized by the highest degree of good faith and fairness.

Regala vs. Sandiganbayan

PCGG want to build up their case against Eduardo Coujuanco for the anomalies in the COCO LEVY FUNDS. PCGG wants petitioners divulge that Cojuangco indeed was a client of their firm, as well as other information regarding Cojuangco.

Issue: Can the PCGG compel petitioners to divulge its client’s name?

Held: NO.

As a matter of public policy, a client’s identity should not be shrouded in mystery. The general is that a lawyer may not invoke the privilege and refuse to divulge the name or identity of his client.

1) the court has a right to know that the client whose privileged information issought to be protected is flesh and blood.

2) the privilege begins to exist only after the attorney-client relationship has been established. The attorney-client privilege does not attach until there is aclient.

3) the privilege generally pertains to the subject matter of the relationship.

Finally, due process considerations require that the opposing party should, as a general rule, know his adversary. “A party suing or sued is entitled to know who his opponent is.” He cannot be obliged to grope in the dark against unknown forces.

Except:

1) Client identity is privileged where a strong probability exists that revealing the client’s name would implicate that client in the very activity for which he sought the lawyer’s advice.

2) Where disclosure would open the client to civil liability, his identity is privileged.

3) Where the government’s lawyers have no case against an attorney’s clientunless, by revealing the client’s name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individualof a crime, the client’s name is privileged.

That client identity is privileged in those instances where a strong probability exists that the disclosure of the client's identity would implicate the client in the very criminal activity for which the lawyer’s legal advice was obtained.